Madhya Pradesh High Court
Bacchan Singh vs State Of M.P. on 28 August, 2015
1 Criminal Rev. No.706/2013
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR.
SB : Hon'ble Shri Justice Sushil Kumar Gupta
Criminal Revision No.706 of 2013
Bacchan Singh
vs.
State of M.P.
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Shri Atul Gupta, Advocate for the petitioner.
Shri B.P.S.Chauhan, Panel Lawyer for the respondent/State.
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ORDER
(28/08/2015) Being aggrieved by the order dated 25.6.2013 passed by the First ASJ, Morena, in S.T. No.279/2012, whereby charges under Sections 419 read with Section 114 and 468 read with Section 114 of the Indian Penal Code, 1860 (in short the Code of 1860) were framed, this revision petition has been filed by the petitioner under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short the Code).
2. The facts of the case in brief are that an execution Case No.23/88/96 was pending in the Court of District Judge, Morena, against the petitioner. The said case was filed for recovery of decreetal amount in compliance of ex-parte order dated 14.2.1994 passed in Case No.23/88. During execution proceeding, the petitioner, judgment debtor, filed an application stating that he has submitted an application under Order 9 Rule 13 CPC for setting aside ex-parte decree which has been registered as Misc. Suit No.33/97, hence, till decision of that suit, the execution proceeding be stayed. The application of the petitioner was accepted and it was directed that if the petitioner furnishes a surety 2 Criminal Rev. No.706/2013 of Rs.1,76,000/-, the execution proceeding shall be stayed till decision of Misc. Suit No.33/97. Thereafter, the petitioner on 3.12.97 furnished the surety in the name of Jaswant Singh. After disposal of Misc. Suit No.33/97 on 16.8.99, District Judge, Morena, directed in the execution case to proceed further. In compliance of the order, a notice was issued to the surety for depositing the amount of surety bond. Thereafter, Jaswant Singh appeared before the Court and submitted that he has not furnished any surety on behalf of the petitioner and some other person has furnished the surety using his name. On the direction of the Court, Shri Krishanveer Singh, Reader of the Court, sent a written report to T.I. Kotwali, Distt. Morena, on which Crime No.200/10 was registered under Sections 419, 467, 468, 471/181 of the Code of 1860 at police Station, Kotwali, Distt. Morena. After investigation, charge- sheet was filed in the Court of CJM which committed the case to the Court of Sessions Judge. Thereafter, learned Ist ASJ, Morena vide impugned order dated 25.6.2013 framed the aforesaid charges, hence, this revision.
3. Learned counsel appearing for the petitioner submitted that the alleged forged and fabricated surety was presented before the District Court and in such type of matters provisions of Section 195 of the Code are attracted and provisions of Section 340 of the Code is to be followed and according to those provisions, no Police report can be lodged, but only that Court can file a private complaint against the petitioner. He further submitted that in this case complaint against the petitioner was sent to the Police Station by one Krishna Veer Singh and after registration of the FIR and investigation, Police has filed the charge- 3 Criminal Rev. No.706/2013 sheet against the petitioner, that is in violation of the provisions of Section 195 and Section 340 of the Code. In addition, it is further submitted that in the present matter, no private complaint was filed by the concerning Court and case is initiated on the Police report, which is not permissible under the provisions of Sections 195 and 340 of the Code. In continuation, it is also submitted that ingredients of Section 340 of the Code are not fulfilled and hence, the FIR and further proceedings therefrom deserve to be quashed.
4. On the other hand, learned P.L. for the respondent/State opposes the submission advanced by learned counsel for the petitioner and further supported the impugned order of framing of charge and prays for dismissal of the revision.
5. Having heard learned counsel for the parties, considered the submissions advanced by the learned counsel and perused the entire record.
6. The main question involved in this revision is whether bar under Section 195 of the Code would be attracted in this case or not. It will be useful to reproduce the relevant provisions of Sections 195 and 340 of the Code.
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence-
(1) No Court shall take cognizance-
(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;4 Criminal Rev. No.706/2013
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court"
means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:
Provided that-
(a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.5 Criminal Rev. No.706/2013
"340.Procedure in cases mentioned in section 195 (1)When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of Sub-Section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d)take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and
(e)bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by Sub-Section (1) in respect of an offence may, in any case where that Court has neither made a complaint under Sub-
Section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-Section (4) of section 195.
(3)A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b)in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in section 195."
7. The main contention raised by learned counsel for the petitioner is that the furnishing of forged surety bond in the Court comes within the purview of judicial proceedings, therefore, furnishing of the forged and 6 Criminal Rev. No.706/2013 fabricated surety in the Court by preparing forged documents is an offence made before the Court and cognizance of the offence can be taken only on the complaint of the concerning Court and under Section 340 of the Code complaint can only be filed by that Court.
8. It is undisputed that, against the petitioner, Court has not filed a private complaint, but by order of the Court Reader Krishna Veer Singh has made a complaint to the Police Station Kotwali against the petitioner for initiating the proceedings for furnishing the forged surety. It is also undisputed that such forged surety bond was prepared much before and out of the Court.
9. It is undisputed that if forgery has been committed while the document was in the custody of a Court, then prosecution can be launched only with a complaint made by that Court. Again, if forgery was committed with a document which has not been produced in a court, then the prosecution would lie at the instance of any person.
10. The scope of the preliminary enquiry envisaged in Section 340(1) is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. So the offences envisaged in Section 195(1)(b) must involve acts which would have affected the administration of justice. The offence should have been committed during the time when the document was in custodia legis.
11. It would be a strained thinking that any offence involving forgery of a document if committed far outside the purlieus of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later 7 Criminal Rev. No.706/2013 reached the court records. It must therefore be held that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court.
12. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court.
13. In the present case, according to the case of the prosecution, the surety bond had been forged earlier and thereafter the same was filed in the Court. It is nobody's case that any offence as enumerated in Section 195(b)(ii) of the Code was committed in respect to the said forged surety bond after it had been produced or filed in the Court. Therefore, the bar created by Section 195(1)(b)(ii) of the Code would not come into play and there is no embargo on the power of the Court to send written report to Police Station for taking cognizance against petitioner.
14. The Hon'ble Apex Court in the case of Iqbal Singh Marwah and another v. Meenakshi Marwah and another, AIR 2005 SC 2119 has observed as under :-
"Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis."8 Criminal Rev. No.706/2013
15. In view of the foregoing reasons, this revision is without merit and therefore the same is hereby dismissed.
(Sushil Kumar Gupta) Judge ms/-