Madhya Pradesh High Court
Rajoli Yadav vs The State Of Madhya Pradesh on 16 August, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT JABALPUR
S.B.-Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No.-3847/2017
Rajoli Yadav and Others
Vs.
State of M.P.
ORDER
Post it for :16.08.2019 (Rajendra Kumar Srivastava) Judge (14/18/2019) 2 THE HIGH COURT OF MADHYA PRADESH : JABAPLUR S.B.-Hon'ble Shri Justice Rajendra Kumar Srivastava Cr.R. No.-3847/2017 Rajoli Yadav and Others Vs. State of M.P.
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Shri Ranjan Banerjee, Advocate for the applicants. Shri S.B. Agnihotri, Govt. Advocate for respondent-State.
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ORDER (16.08.2019) This criminal revision under section 397/401 of Cr.P.C. has been preferred by the petitioners being aggrieved by the order dated 15.09.2017 in S.T. No. 53/15 passed by 1 st ASJ, Panna whereby the learned Judge has framed the charges against the petitioner Nos. 1 & 2 for the offence punishable under Sections 206, 207, 467 and 193 of IPC and so far as other petitioners are concerned, he has framed the charge for the offence punishable under section 193 of IPC.
2. According to case, a complaint has been filed by the Civil Judge, Class-II, Panna against the petitioners mentioning that a decree was passed by the Civil Judge, Ajaygarh, Distt.-Panna in Civil Suit No. 12- A/86 (Rajendra Kumar Vs. Ramkripal & ors.) in favour of one Rajendra 3 Kumar in the context to the land bearing khasra No. 547, ad measuring area 2.09 hectare, situated at Vill.-Bhanpur, Distt.-Panna. Being aggrieved by the same, opposite party (Ramkripal & others) has approached to appellate court where the judgment and decree passed by Civil Judge, Class-II has been affirmed. They had also approached the High Court where it has also been affirmed.
3. Thereafter, an execution proceeding was filed by the successful party before Civil Judge, Class-II, Ajaygarh wherein petitioner No.1 of this case has moved an application under section 47 & 151 of CPC with the request to dismissal of the execution proceeding. The application was rejected by the court. Thereafter, he has preferred an appeal which was also dismissed by the appellate court.
4. The allegation against the petitioner No.1 is that he has also filed an application under section 21 Rule 97 of C.P.C objecting execution proceeding of the decree claiming that khasra No.547 came into existence from old khasra No. 280 & 283 and petitioner No.1 is residing on the part of land belongs to khasra No. 280 since 1980. He further stated that in the said land, there was joint ownership of his father and uncle. He further mentioned in the application that plaintiff of civil suit is trying to dispossess him without impleading him, as a party in original suit. He had no knowledge about the decree. The objection pointed out by the petitioner No. 1 has been discarded by the Civil Judge, Class-II mentioning that the partition deed filed by petitioner No.1 is found 4 forged and the statement of the witnesses were also false and not credible. The rejection order has been challenged by the petitioner No.1 before 1st ASJ, Panna by filing civil appeal No. 15-A/2007 in which the learned appellate court has affirmed the order passed by Civil Judge, Class-II, Panna and has also observed that it would be necessary to take necessary action against the petitioner No.1 for adducing false evidence and forging the documents. It has also been observed by the learned Judge, that other petitioners of this case have also adduced false evidence before the Court with regard to possession of petitioner No.1, thus, they are also liable to be prosecuted. Petitioner No. 5, 7 & 8 had made forged partition deed by mentioning false date and had produced before the court. In his complaint, the Civil Judge, Class-II has requested the CJM to initiate criminal proceeding against the petitioners as the act of the petitioner No.1 to 5, 7, 8 is punishable under section 467 & 193 of IPC whereas the act of objector-petitioner No.1 and petitioner No.2 is punishable under sections 206, 207, 467 & 193 of IPC.
5. On the basis of complaint, the learned 1 st ASJ, Panna has framed the charges against the petitioner No.1 & 2 for the offence punishable under Section 206, 207, 467 and 193 of IPC and for other petitioners under section 193 of IPC.
6. Learned counsel for the petitioners submits that the learned trial court erred in framing the charges against the petitioner No.1 & 2, as 5 there was no intention to mislead the court by way of filing an objection and adducing the statements. It was observed by the civil court that the partition deed is false and fabricated but no reason has been assigned in the complaint that on what basis, it was found to be fabricated. Therefore, primafacie it appears that no case is made out against the petitioner No.1 & 2. The allegation against petitioner Nos. 3-9 is that they have deposed the false evidence before the court but these witnesses have deposed their statements on the basis of knowledge and the learned Court at the most could have disbelieved their version but no criminal liability lies upon them. With the aforesaid prayer, he prays for allowing this petition. In support of his contention, he has relied upon the judgment of Hon'ble Apex Court in the case of Vishnu Chandru Gaonkar vs. N.M. Dessai reported in 2018 (5) SCC 422 and submits that the offence under section 193, 206, 207 and 467 of IPC falls under section 195(1) (b) (I) and (ii) of Cr.P.C. and same comes into existence when the offence of forging documents was committed when the document was in the custody of the court not otherwise.
7. On the other hand, learned G.A. for the respondent-State opposes the submissions of learned counsel for the petitioners and submits that there is sufficient prima-facie material, which is available to frame the aforesaid charges against the petitioners. The petitioners have forged the partition Will and also adduced false evidence before the court to avoid the execution proceeding of decree passed in the favour of one Rajendra 6 Kumar. Therefore, at this stage, there is no need to interfere in the order of framing of charges passed by trial court, if petitioners have any grievance they may an opportunity to put up their defence before the trial court at the appropriate stage of trial.
8. Heard the arguments and perused the case diary.
9. On perusal of case diary, it appears that the petitioner Nos. 1 & 2 are facing trial for the offence punishable under section 206, 207, 467 & 193 of IPC whereas other petitioners are being prosecuted for the offence punishable under section 193 IPC. Before embarking on the facts of the case, it would be appropriate to first read the relevant provision of IPC, same are quoted as under:-
"191.Giving false evidence --Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Explanation 1.--A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2.--A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know."
10. Further punishment for giving false evidence is described under section 193 of IPC, same is also quoted as under:-
193."Punishment for false evidence--Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial 7 proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Explanation 1.--A trial before a Court-martial; 1[***] is a judicial proceeding.
Explanation 2.--An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice."
11. The penal provision of Sections 206, 207 & 467 of IPC are also reproduced as under:-
"206. Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution.
--Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any interest therein, intending thereby to prevent that property or interest therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced, by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
207. Fraudulent claim to property to prevent its seizure as forfeited or in execution -- Whoever fraudulently accepts, receives or claims any property or any interest therein, knowing that he has no right or rightful claim to such property or interest, or practices any deception touching any right to any property or any interest therein, intending thereby to prevent that property or 8 interest therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
"467. Forgery of valuable security, will, etc.-- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
12. On the context of abovesaid penal provisions of IPC, Section 195 of Cr.P.C. expressly states as follows:-
"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, attempt to commit, such offence, or 9
(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;
(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 8 offence specified in subclause (i) or subclause (ii),[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, 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 subsection (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 subsection (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 subsection (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees 10 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 is 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."
13. On careful reading of Section 195 of Cr.P.C. it is manifest that the offence mentioned under section 195 (1)(b)(i) refers to offences of false evidence and offences against public justice whereas Section 195 (1)(b)
(ii) relates to offences in respect of a document produced or given in evidence in a proceeding in any court. Section 195 Cr.P.C. Only prescribe rules to be followed by the court to take cognizance of an offence specified therein in relation to any proceeding of court. For that purpose, Section 340 defined the procedure to initiate proceeding for the offence mentioned in section 195 of Cr.P.C. either suo motto or on the basis of an application made to it in that behalf. Therefore, it would be necessary to read the provision of Section 340 of Cr.P.C. Provision of Section 340 of Cr.P.C. is also quoted as under:-
340. Procedure in cases mentioned in Section 195 -11
(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 subsection (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 nonbailable 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 subsection (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (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 subsection (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[or by such officer of the Court as the Court may authorise in writing in this behalf].
(4) In this section, "Court" has the same meaning as in Section 195."12
14. On reading of Section 340 of Cr.P.C. it appears that a prosecution under section 340 of Cr.P.C. can be initiated only by the sanction of the court under whose proceedings an offence referred to in section 195 (1)
(b) has allegedly been committed. While exercising its power under Section 340 of Cr.P.C., the court shall not only consider primafacie case but also see whether it is in or against public interest to allow criminal proceedings to be instituted.
15. Now, in view of the provision of Section 195 and 340 of Cr.P.C., this court shall examine the offences which have been framed against the petitioners. As earlier noted the petitioner Nos. 1 & 2 are being prosecuted for the offences under Section 206, 207, 467 and 193 of IPC and so far as other petitioners are concerned, they are facing trial for the offence punishable under section 193 of IPC. Section 193 of IPC which is framed against all the petitioners has provided the punishment for giving false and incorrect evidence in court proceedings whereas Section 206 & 207 provides the offence of concealment of property to prevent its seizure and fraudulent claim over the property to prevent its seizure as forfeited or in execution. These offences comes under the first category of Section 195(1)(b)(i). The learned counsel for the petitioner has argued before this court that the alleged forgery has not been committed with respect to a document, which was in the custody of the court and forging of document outside of the court cannot come under the purview of Section 195 of Cr.P.C.
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16. In this regard in the case of Sachida Nand Singh vs. State of Bihar and another reported in 1998(2) SCC 493, the Hon'ble Apex Court has held as under:-
"6. A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us 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. There is also no dispute that 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. If so, will its production in a court make all the difference?
xxx xxx xxx
23. 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. Accordingly we dismiss this appeal."
17. Before applying the principle of Sachida Nand Singh's case, in the present case, it is necessary to mention about the background of the case. A contrary view to that of Sachida Nand Singh's case has been expressed by three Judges Bench in Surjit Singh vs. Balbir Singh's case [1996(3) SCC 533], the same was referred to a Constitutional Bench and the Bench has resolved the conflicting views in the case of 14 Iqbal Singh Marwah Vs. Meenakshi Marwah reported in (2005) 4 SCC
370. The Constitutional Bench has approved the view passed in Sachida Nand Singh's case. In the case of Sachida Nand Singh (Supra), the Hon'ble Apex Court has held that if forgery has been committed while the document was in the custody of the court, then prosecution can be launched only with a complaint made by that court but if forgery was committed with a document which has not been produced in a court then prosecution would lie at the instance of a ny person.
18. Further, in the case of Narendra Kumar Shrivastava vs. State of Bihar passed in Cr.A. No. 211/19, after retreating the pronouncement of case Sachida Nand Singh (supra) and has held as under:-
"22.In Sachida Nand Singh (supra), this Court had dealt with Section 195(1)(b)(ii) of the Cr.P.C unlike the present case which is covered by the preceding clause of the Section. The category of offences which fall under Section 195(1)(b)(i) of the Cr.P.C. refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1)(b)(ii) of Cr.P.C, where a dispute could arise whether the offence of forging a document was committed outside the court or when it was in the custody of the court. Hence, this decision has no application to the facts of the present case."
19. Therefore, it makes clear that the category of the offences which fall under Section 195(1)(b)(i) of the Cr.P.C. are distinctly different from offences mentioned under section 195 (1)(b)(ii) of Cr.P.C. In the present case, the charges for the offence punishable under Sections 193, 206 & 207 fall into the purview of Section 195(1)(b)(i), which do not relates to 15 forging of document either outside the court or when it was in the custody of the court.
20. As far as Section 467 of IPC is concerned, it appears that the same falls under the purview of provision of Section 195(1)(b)(ii) of Cr.P.C. Thus, the person can be prosecuted in a court on the basis of the complaint filed by the Magistrate with respect to a document which has been given or produced in evidence in proceeding in any court and the forgery was made when the same was in custodia legis, and not prior thereto, meaning thereby, if such forgery was not done when the document was in custody of Court, the prosecution would lie at the instance of any person, not Court.
21. Now, this Court shall consider the facts of the case as to whether the act of petitioners would come under the purview of aforesaid offences? On reading of complaint as well as judgment of appellate Court it appears that the alleged forged Will was produced by the petitioners in court proceeding but no fact is mentioned that the alleged forgery was made after submitting the Will, thus, petitoner can not be prosecuted for the charge under section 467 of IPC in view of the provision of Section 195(1)(b)(ii) on the basis of complaint filed by the Magistrate. So far offence under section 193, 206 and 207 of IPC are concerned, primafacie it appears that the petitioners of the case have deposed their statements to the context of alleged forge Will. Petitioner No. 1 and 2 had made the above said alleged fraudulent Will and claim 16 over the property to prevent seizure and forfeiture of property in execution proceeding.
22. Therefore, in view of forgoing discussion, this court is of the view that in framing the charges under Sections 193, 206 & 207 of IPC against the petitioner No.1 & 2, the learned lower court did not make any error of law as well as the charge for the offence under Section 193 of IPC which has been framed against the petitioner Nos. 3-9 is concerned, there is also no illegality is found in the order passed by learned lower court. As far as charge for the offence punishable under Section 467 of IPC against the petitioner Nos. 1 & 2 is concerned, it is found contrary to spirit of Section 195 of Cr.P.C as it appears that the alleged forgery with document was not done when the same was under
the custody of Court, thus, petitioner Nos.1 & 2 cannot be prosecuted unless the complaint was filed by the person. Hence, the petitioner Nos.
1 & 2 are hereby discharged from the offence punishable under Section 467 of IPC.
23. Accordingly, this petition is disposed of.
(Rajendra Kumar Srivastava) JUDGE pallavi PALLAVI SINHA 2019.08.22 16:33:43 +05'30'