Orissa High Court
Raj Kishore Biswal And Anr. vs State Of Orissa on 16 April, 2008
Equivalent citations: 2008(II)OLR150, 2008 CRI. L. J. 4532, 2009 (1) AJHAR (NOC) 190 (ORI), (2008) 67 ALLINDCAS 688 (ORI), (2008) 2 ORISSA LR 150, (2008) 40 OCR 327
Author: S.C. Parija
Bench: S.C. Parija
JUDGMENT S.C. Parija, J.
1. This application under Section 482 Cr.P.C. has been filed by the present petitioners assailing the order passed by the learned S.D.J.M., Puri, in 2(c) CC 17 of 1994 taking cognizance of offences under Sections 193/467/471 IPC, on the basis of complaint filed by the learned Sub-ordinate Judge, Puri, under Section 340(1) Cr.P.C. The petitioners also assail the order of the learned Adhoc Addl. District & Sessions Judge, Fast Track Court No. ll, Puri, dismissing the petitioner's appeal bearing Crl. Appeal No. 8/66 of 2001/1994 under Section 341 Cr.P.C.
2. The brief fact of the case is that the present petitioners were defendants in Title Suit No. 108 of 1991 in the Court of learned Sub-Judge, Puri. In the said suit the defendants produced an unregistered Agreement for Sale, which was alleged by the plaintiff to be a forged and fabricated document. The said suit was decided by the learned Sub-Judge, Puri, Wdehis judgment dated 10.9.1993. After the disposal of the suit, the plaintiff filed a petition on 11.10.1993 before the learned Sub-Judge, Puri, under Section 340 Cr.P.C. on the allegations that the defendants (present petitioners) along with others made conspiracy to forge a document to utilize the same in the aforesaid Title Suit No. 108 of 1991 (marked Ext.C in the suit) and intentionally gave false evidence in the suit.
3. The said petition of the plaintiff filed under Section 340 Cr.P.C. was registered as Misc. Case No. 242 of 1993 and the learned Sub-Judge, Puri, without holding a preliminary enquiry and only on consideration of the materials on record of the suit, vide order dated 10.01.1994, came to hold that the present petitioners (opposite parties in Misc. Case No. 242 of 1993) gave falsa evidence in a judicial proceeding and it appears that they have committed offences punishable under Sections 193 and 467 IPC. The relevant portion of the order of the learned Sub-Judge, Puri, dated 10.01.1994, is extracted below:
In the instant case as I have already discussed, in view of the evidence of D.W.4 on record in Title Suit No. 108/91 i.e. of the present O.P. No. 3, and in view of the Judgment in Title Suit No. 108/91 I find no justification in issuing notice to the O.P. in this case and in the interest of justice it is not expedient to conduct any preliminary enquiry as sufficient materials are already before me to initiate action Under Section 340 of the Cr.P.C. Accordingly when the O.Ps. gave false evidence in a Judicial proceeding regarding Ext.C it appears that the O.Ps. have committed an offence punishable Under Sections 193 and 467 of the I.P.C. Accordingly a complaint be lodged before the S.D.J.M., Puri in the interest of justice and for prevention of perjury against the O.Ps. for taking cognizance against the O.Ps. Under Sections 193 and 467 of the I.P.C. Accordingly the misc. case is disposed of.
4. Accordingly a written complaint was lodged before the learned S.D.J.M., Puri, along with the copy of the order dated 10.01.1994 of the learned Sub-Judge, Puri, which was registered as 2(c) CC 17 of 1994. The learned S.D.J.M., Puri, vide order dated 13.01.1994 took cognizance of the offences under Sections 193/467/471/ IPC and directed issue of summons against the present petitioners, which reads as under:
A complaint petition along with the copy of order dated 10.1.94 in Misc. Case No. 242 of 1993 is received from the learned Sub-Judge, Puri. The complaint is submitted under Section 340(1) Cr.P.C. and forwarded to this office vide Sub-Judge Court's office letter No. 41 dated 13.1.94.
Perused the complaint. A prima facie under Sections 193/ 467/471 I.P.C. is well made out against the accused persons and accordingly cognizance under Sections 193/467/471 I.P.C. is taken against the accused persons. Summon to them fixing 18.2.94 for appearance.
5. Being aggrieved by the said order of the learned Sub-Judge, Puri, dated 10.01.1994 and the order of cognizance passed by the learned S.D.J.M., Puri, dated 13.01.1994 the present petitioner filed Crl. Appeal No. 8/66 of 2001/1994 before the learned Adhoc Addl. District & Sessions Judge, Fast Track Court No.II, Puri, assailing the said orders. The learned Adhoc Addl. District & Sessions Judge, Fast Track Court No. II, Puri, by order dated 20.10.2001 came to the conclusion that since there is no bar under Section 195 Cr.P.C. for a Court to make a complaint in respect of offences covered under Section 195 Cr.P.C, the learned Sub-Judge is competent to lodge the complaint. Moreover even if the disputed document (Ext.C) is said to have been forged before institution of the suit or before it was produced in the Court of learned Sub-Judge, the cognizance taking Court an take cognizance of offence even on the complaint of the Sub-Judge, unless it is shown under the law that a Court or a public servant cannot make a complaint in respect of offences other than the offences under Section 195 Cr.P.C, the impugned order of the S.D.J.M. taking cognizance cannot be disturbed.
6. The moot question which needs determination in this case is as to whether a prosecution can be maintained on the complaint of a Court under Section 340(1) Cr.P.C. in respect of a forged document produced in the said Court unless it is prima facie shown that such offence has 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 custody of the Court.
7. Learned counsel for the petitioners refers to a judgment of the Full Bench of Punjab & Haryana High Court in the case of Harbans Singh and Ors. v. State of Punjab, (Full Bench), wherein the Hon'ble Court considering the judgments and provisions of law came to hold that Section 195(1)(b)(ii) of the Cr.P.C. is limited in its operation only to the offences mentioned in that Section, if committed with regard to a document produced or given in evidence in such proceedings, while the document is in custody of the Court. It has no application to a case in which a document is fabricated prior to its production or given in evidence.
8. Section 195 Cr.P.C. deals with three distinct categories of offences which have been described in Clauses (a) (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X of the IPC and the heading of the Chapter is 'Of Contempts of The Lawful Authority of Public Servants.' These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI of IPC which is headed as - 'Of False Evidence And Offences Against Public Justice'. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a Court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a Court of justice (Sections 205 and 211, IPC). This being the scheme of two provisions or clauses of Section 195, viz., that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a Court of justice the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a Court" occurring in Clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the Court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with Clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195, Cr.P.C. This indicates that Clause (b) (ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court.
9. Section 195(1) mandates a complaint in writing of the Court for taking cognizance of the offences enumerated in Clause (b)(i) and (b)(ii) thereof. Sections 340 and 341 Cr.P.C. which occur in Chapter XXVI prescribes the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is - 'Provisions As to Offences Affecting The Administration of Justice'. The fact that the procedure for filing complaint by Court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz., which is committed after the document is produced or given in evidence in Court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in Court cannot, strictly speaking, be said to be an offence affecting the administration of justice.
10. Section 190, Cr.P.C. provides that a Magistrate may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 195, Cr.P.C. is a sort of exception to this general provision and creates an embargo upon the power of the Court to take cognizance of certain types of offences enumerated therein. The procedure for filing a complaint by the Court as contemplated by Section 195(1), Cr.P.C. is given in Section 340 and Sub-sections (1) and (2) thereof are being reproduced below:
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 interests 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 of 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;
(e) bind over any person to appear and given evidence before such Magistrate.
11. In view of the language used in Section 340, Cr.P.C the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of inquiry suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint.
12. The Supreme Court in the case of Sachidanand Singh and Anr. v. State of Bihar and Anr. , while considering the provisions of Section 195(1) and Section 340(1) Cr.P.C. came to hold as follows:
The Sub-section puts the condition that before the Court makes a complaint of "any offence referred to in Clause (b) of Section 195(1)" the Court has to follow the procedure laid down in Section 340, In other words, no complaint can be made by a Court regarding any offence falling within the ambit of Section 195(1)(b) of the Code without first adopting those procedural requirements. It has to be noted that Section 340 falls within Chapter XXVI of the Code which contains a fasciculuss of "Provisions as to offences affecting the administration of justice" as the title of the Chapter appellates. So the offences envisaged in Section 195(1)(b) of the Code must involve acts which would have affected the administration of justice.
The scope of preliminary enquiry envisaged in Section 340(1) of the Code 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. In other words, the offence should have been committed during the time when the document was in custodia legis.
It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts 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 reached the Court records.
13. Accordingly, the Supreme Court in Sachida Nand Singh's case came to the conclusion 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.
In a subsequent judgment in the case of Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. , the Supreme Court while considering the scope and ambit of Section 195(1) and Section 340 Cr.P.C. affirmed the view taken in Sachida Nand Singh's case in holding as follows:
In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. 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.
14. In the instant case, the document in question, i.e., the unregistered Agreement for Sale (Ext. C in the suit) having been alleged to have been forged and fabricated prior to its production as evidence in the Court of Sub-Judge, Puri, in Title Suit No. 108 of 1991, the provisions of Section 195(1)(b)(ii) Cr.P.C. is not attracted. Hence the offence of forgery of the document in question having been alleged to have been committed outside the precincts of the Court and long before its production in the Court, it cannot be treated as one affecting the administration of justice merely because the said forged document subsequently reached the Court records.
15. In view of the factual position of the case highlighted above and considering the same in the background of the legal principles enumerated above, the impugned complaint filed by the learned Sub-Judge, Puri, which has been registered as 2(c) CC 17 of 1994 as well as the order of cognizance dated 13.01.1994 passed therein by the learned S.D.J.M., Puri, are hereby quashed.
The CRLMC is accordingly allowed.