Madhya Pradesh High Court
Ram Chandra Dubey vs Shri Raghuvansh Dubey on 29 April, 2016
Mr.M.K.Mishra, learned counsel for the petitioner.
Notice has not been issued to the respondents
herein.
For the reasons to be given herein, there is no requirement for issuance of notice to the respondents.
The petitioner is the complainant before the Court of learned Judicial Magistrate First Class, Rewa. The petitioner is said to have filed a complaint praying for a prosecution of respondent Nos.1 to 12 for the offences under sections 420, 467 and 468 of Indian Penal Code.
The facts according to the learned counsel for the petitioner is that the petitioner and respondents had ancestral property which was partitioned by their ancestors. According to which the petitioner here became an owner of 1/4 shares in the agricultural land in question which is land bearing No.102, 103, 132, 131, 129, 129, 183, 295, 77, 177, 68, 70, 71, 76 and 75 has been mutated in favour of respondent Nos.1 to 9. According to the petitioner/complainant his signature was forged and presented in proceedings before the Revenue Court relating to the mutation. On the basis of which the mutation of the petitioner's property was done in the name of respondent Nos.1 to 9. Aggrieved by this offence the petitioner preferred the complaint as mentioned above.
In the said case, the statement of the complainant/petitioner was recorded under Section 200 of Cr.P.C. by the learned Court of Judicial Magistrate First Class, Rewa in which the complainant states that he had never signed on any document favouring the mutation of the said property in the name of respondent Nos.1 to 9 and, therefore, he has been cheated of his share in the ancestral property. Learned Judicial Magistrate First Class took into the account the evidence of the petitioner/complainant and certain witnesses whose statements have been recorded before the trial Court and, thereafter, was pleased to dismiss the complaint vide order dated 24.08.2013 which is annexed to the petition as Annexure-A/2 from page 15 to 18. The said complainant was dismissed by the learned Judicial Magistrate First Class purely on the ground that the complainant has not produced a standard document with his undisputed signature either in the form of ration card, passbook or any other documents, on the basis of which the trial Court could have ascertained as to which was the actual signature of the petitioner As regards the other witnesses who were produced before the trial Court whose statements were also recorded under section 202 of Cr.P.C. The trial Court observed that the supporting witnesses who have stated that they have not signed on those documents which was produced before the revenue court, they too have not produced any standard or undisputed documents establishing their signature. Besides, neither the petitioner nor his witnesses had ever produced the opinion of the handwriting expert opining that the handwriting/signature on the questioned documents did not belong to the petitioner or his witness. Solely on that ground the complaint was dismissed.
Learned counsel for the petitioner says that the said order is illegal, as under an inquiry under Section 202 of Cr.P.C., the trial Court ought to have given an opportunity to the complainant or directed the complainant to produce such standard documents/undisputed documents and establish his signature, or the trial Court itself could have sent to the said documents along with standard signatures and sample signatures of the complainant and his witnesses to the State Examiner of Questioned Document and got an opinion and thereafter proceeded in the case. Without doing so, even though empowered under Section 202 of Cr.P.C., the Court of learned Judicial Magistrate First Class made short shrift of the case and dismissed the complaint. Against the said order of dismissal the petitioner preferred a criminal revision before the Court of learned 6 t h Additional Sessions Judge, Rewa by way of criminal revision No.279/2014 which was also dismissed vide impugned order dated 9.7.2014. The grounds on which the said revision was dismissed differed from that of the Court of Judicial Magistrate First Class.
Learned counsel for the petitioner has also drawn my attention to paragraph-10 of the impugned order wherein the Court of revision held, relying upon the various judgments that as the documents alleged to have been forged was produced before the Revenue Court in revenue proceeding by which the mutation had taken place, a complaint case in relation to the same document under Section 200 was barred in view of Section 195 of Cr.P.C. and in paragraph-11 the Court of revision has held with regard to those accused persons who are public servants that they could not have been proceeded against without sanction.
Learned counsel for the petitioner states that the findings of the Court of revision pertaining to section 195 of Cr.P.C. is grossly misplaced as it had failed to take cognizance of the judgment of the Supreme Court in the case of Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr. AIR 2005 SC 2119, wherein this issue was given a quietus by the Hon'ble Supreme Court. The said judgment arose on a conflict between two earlier judgments of the Supreme Court itself, one being Surjit Singh Vs. Balbir Singh , 1996(3) SCC 533 and the other Sachida Nand Singh Vs. State of Bihar 1998 (2) SCC 493 which relates to the interpretation of Section 195(1)(b)(ii) of Cr.P.C. In Balbir Singh's case the Hon'ble Supreme Court has held that once a document was produced before a Court in a judicial proceeding and it was found to be forged, then no complaint or an FIR could be registered with regard to any of the offence mentioned in section 195 of Cr.P.C. without the bar being lifted by the Court by exercising jurisdiction under section 340 Cr.P.C. Per contra, in Sachida Nand Singh (supra ), the Supreme Court has held that a mere production of document in a judicial proceeding will not bring about the bar of section 195 Cr.P.C., unless the forgery pertain to a document which was custodia legis. In order to settle the conflict of opinion between the two judgments, the case was referred to a larger Bench and the same was decided by a Constitution Bench in Iqbal Singh Marwah's case, whereby the Supreme Court agreed with ratio settled in Sachida Nand Singh's case, held that the bar of section 195 of Cr.P.C. would only be attracted when the offences enumerated in the said provisions have been committed in respect to the document after it has been produced or given in evidence in any court i.e. during the time when the document was in custodia legis. In short the Supreme Court held that the document to which forgery pertains must already have been in the custody of the Court before the date on which the said fabrication had taken place. Else, the bar of Section 195 of Cr.P.C. would not be applicable. As regards the finding of the Court of Revision relating to the public servant that the Court could not proceed against them without requisite sanction, the learned counsel for the petitioner states that as the complaint pertains to offences under Section 420, cheating and forgery and it has been held in a catena of cases by the Supreme Court that the protection of sanction is not available to offences pertaining to cheating as it cannot be envisaged that it could come within the discharge of public function/duties of any public servant to indulge in the offence of cheating and forgery.
Looking at the judgment and specially to the order of dismissal by the learned Judicial Magistrate First Class, I am of the opinion that the learned Judicial Magistrate First Class did not exercise the full ambit and scope of the authority under Section 202 of Cr.P.C., it ought to have kept in mind that the complainant was an agriculturist, not very educated, living in a backward area, who was not very well cognizant of his rights and, therefore, it ought to have given, firstly an opportunity to produce such documents which were of undisputed nature relating to his signature and carried out comparison himself to arrive at a finding whether the document alleged to have been forged, appeared to be prima-facie forged. Secondly, it was well within the power of learned Judicial Magistrate First Class to have sent those documents viz , the questioned documents, alleged to have been fabricated and the standard signatures and the sample signatures of the complainant to the State Examiner of Questioned Document, procured his opinion and thereafter proceeded in accordance with the law and come to a finding whether or not this was a fit case to proceed and issue process to the accused person under Section 204 or Cr.P.C. or whether the same should be dismissed under Section 203 of Cr.P.C.
Under the circumstances, I hereby quash the impugned order dated 09.07.2014 passed in criminal revision No.279/2013 and remand this matter to the Court of Judicial Magistrate First Class, Rewa with the direction to carry out further inquiry under Section 202 of Cr.P.C. and give an opportunity to the complainant to produce such documents of undisputed nature/standard documents which bear his signature and, thereafter, decided whether it should be assessed by the learned trial Court itself whether the signature differ or whether the same should be sent to the State Examiner of Questioned Document. If the learned Judicial Magistrate First Class arrives at the opinion it is essential to seek the opinion of the State Examiner of Questioned Documents, he should do so, and once the opinion of State Examiner of Questioned Document is received, thereafter, he shall examine the complaint case on merits, uninfluenced by the observations made by this order and decide for himself whether this case is fit to proceed under section 204 Cr.P.C. or whether the same warrants dismissal under Section 203 of Cr.P.C. The respondents have not been put on notice because no order on merits have been passed by this Court and the trial Court shall be cognizant of this fact and only proceed against the prospective accused persons if it is satisfied that there is adequate material on record warranting issuance of process against them, if such material is not available evenafter the opinion of the State Examiner of Questioned Documents which is procured, it shall pass necessary orders under Section 203 of Cr.P.C.
With such directions, the petition is disposed of.
C.C. as per rules.