Gujarat High Court
Shamji Valabhai Patel vs State Of Gujarat on 3 February, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/1216/2022 ORDER DATED: 03/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1216 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 1300 of 2022
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SHAMJI VALABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR HM PARIKH WITH MR RASESH H PARIKH(3862) for the Applicant(s)
No. 1,2
MR P.C.KAVINA WITH MR DK.PUJ for the Respondent(s) No. 2
for the Respondent(s) No. 3
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 03/02/2022
COMMON ORAL ORDER
1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code' for short) for quashing and setting aside the order dated 27.12.2021 passed by the 4th Additional Sessions Judge, Gandhidham, Kutch in Criminal Appeal No.11 of 20211.
2. Looking to the issue involved in the present applications, learned senior counsel appearing for the parties jointly requested that these applications be finally decided at admission stage. As the issue involved and the order impugned in these applications is common, with the consent of the learned advocates appearing for the parties, both these applications are heard together and disposed off by this common order.
3. Heard learned senior advocate Mr.H.M.Parikh assisted by learned advocate Mr.Rashesh Parikh for the petitioner, learned senior Page 1 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022 R/CR.MA/1216/2022 ORDER DATED: 03/02/2022 advocate Mr.P.C.Kavina assisted by learned advocate Mr.D.K.Puj for respondent no.2 and learned APP Mr.Dabhi for respondent no.1-state.
4. Learned senior advocate Mr.Parikh appearing for the applicants submits that Regular Civil Suit No.7 of 2007 has been filed by one Shri Sureshbhai Trevadia through his power of attorney i.e. respondent no.2 herein. Thereafter, respondent no.2 filed the application vide Exh.26 contending that the signature of power of attorney of the applicant i.e. Shri Kishorilal Soni on vakalatnama, caveat as well as on the written statement is forged and thereby the applicant and others have committed offences punishable under Sections 193, 196, 199, 200, 205, 209, 419, 465, 467, 468, 471, 474 and 120B of the Indian Penal Code. It is, therefore, requested that inquiry as contemplated under Section 340 of the Code be initiated. The concerned Court gave separate number to the said application being Criminal Miscellaneous Application No.435 of 2009. Thereafter, the concerned Court passed an order on 22.10.2008 that the said application be returned to the respondent no.2 for production of the same before the appropriate court. Thereafter, the said application was produced before the Chief Judicial Magistrate and the said matter was registered before the said Court. Thereafter, the concerned Magistrate passed the order on 16.6.2010 and directed to make preliminary inquiry, copy of the said order is placed on record at page no.51 of the compilation.
4.1 Learned senior advocate Mr.Parikh, thereafter, contended that during the course of preliminary inquiry, the respondent no.2 examined two witnesses and after considering the material placed before the concerned Magistrate Court, the order dated 2.4.2011 came to be passed whereby the application given by the present respondent no.2 Page 2 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022 R/CR.MA/1216/2022 ORDER DATED: 03/02/2022 under Section 340 of the Code came to be dismissed. Against the said order, the respondent no.2 preferred Criminal Appeal No.11 of 2011 before the concerned Sessions Court. However, the concerned Sessions Court passed the impugned order dated 27.12.2021 whereby the Criminal Appeal filed by the respondent no.2 came to be allowed and the order passed by the concerned Magistrate was set aside. Further direction was given to the trial Court to file complaint against the present applicants under Section 340(1)(b) of the Code. Copy of the impugned order is placed on record at page no.82 of the compilation.
4.2 Learned senior advocate Mr.Parikh assailed the impugned order passed by the Sessions Court on various grounds including the ground of maintainability of the appeal filed by the respondent no.2 before the Sessions Court. However, the main contention raised by the learned senior advocate is required to be considered for deciding the issue involved in the present matter and therefore this Court has not gone into all the contentions raised by the learned senior advocate for the applicant.
4.3 Learned senior advocate Mr.Parikh has referred to the findings recorded by the Sessions Court in paragraphs 18 and 19 of the impugned order. After referring to the same, it is submitted that the Sessions Court has specifically held that none of the alleged three forged documents are executed before the Court but subsequently they were submitted before the Court. Thus, when the findings are recorded by the Sessions Court that none of the alleged forged documents are forged when they were lying before the concerned Court, the bar under Section 195(1)(b)(ii) would not be applicable. It is further submitted that though it is stated in the application filed under Section 340 of the Code that the present applicants and others have committed the offences punishable Page 3 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022 R/CR.MA/1216/2022 ORDER DATED: 03/02/2022 under Sections 193, 196, 199, 200, 205, 209 of Indian Penal Code, in fact, the aforesaid offences are not committed as alleged as none of the witnesses have been examined and no false evidence was produced before the Court. Thus, the provision contained in Section 195(1)(b)(i) is also not applicable. Thus, learned senior advocate submitted that the impugned order passed by the Sessions Court is required to be quashed and set aside only on this ground.
5. On the other hand, learned senior advocate Mr.Kavina would not be in a position to dispute the said fact that the provisions contained in Section 195(1)(b)(ii) would not be applicable to the facts of the present case. It is pertinent to note that the findings recorded by the Sessions Court is not challenged by the present respondent no.2. However, learned senior advocate, at this stage, submitted that if the bar contained in the aforesaid provision is not applicable and if all the aforesaid three documents were forged before they were produced before the Court, then liberty be granted to the respondent no.2 to initiate appropriate proceedings before the appropriate forum including filing private complaint or FIR before the concerned police station.
5.1 Learned senior advocate has submitted that even the respondent no.2 is ready and willing to withdraw the application filed by him under Section 340 of the Code before the concerned Magistrate Court.
6. Learned APP Mr.Dabhi has also submitted that in the facts and circumstances of the present case and as per the findings recorded by the Sessions Court in the impugned order, bar under Section 195(1)(b)(ii) would not be applicable and therefore in the facts and circumstances of Page 4 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022 R/CR.MA/1216/2022 ORDER DATED: 03/02/2022 the present case, this Court may pass appropriate order.
7. Having heard learned senior advocates appearing for the parties and having gone through the material placed on record, it would emerge that in the civil proceedings before the concerned civil court, it is the case of the respondent no.2 herein that the caveat, written statement and vakalatnama were submitted through power of attorney holder. It is alleged that the said power of attorney has not signed the said documents and his signature has been forged. Thus, on the basis of the said allegations, the application came to be filed under Section 340 of the Code by the respondent no.2. Initially, the order dated 16.6.2010 came to be passed by the concerned court directing preliminary inquiry and after conducting the inquiry, the order dated 2.4.2011 came to be passed by the concerned Magistrate Court and thereby the application filed by the respondent no.2 under Section 340 of the Code came to be dismissed. It is pertinent to note that in the criminal appeal filed by the respondent no.2 before the Sessions Court, it has been stated that the order dated 16.6.2010 passed below Exh.1 in Criminal Miscellaneous Application No.435 of 2009 is challenged. In fact, the order dated 16.6.2010 came to be passed by the concerned Magistrate Court by which the preliminary inquiry was ordered to be conducted. However, if the allegations and contentions raised before the appellate court is carefully seen, it is revealed that in fact, the respondent no.2-appellant had challenged the order dated 2.4.2011 passed by the concerned Magistrate Court whereby the application filed under Section 340 of the Code came to be dismissed. In the aforesaid facts of the present case, if the impugned order is carefully seen, it is revealed that the Sessions Court in paragraph 18 and 19 has observed as under:
Page 5 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022R/CR.MA/1216/2022 ORDER DATED: 03/02/2022 "18. Now, looking to the documents alleged by the complainant, first of all, Power of Attorney is not at all submitted before the Court. The execution of forged Power of Attorney is alleged by the complainant would have been a different offence. It cannot be said that this document is brought to the Court has neither from the documents submitted by the complainant nor the police papers. This Power of Attorney appears nowhere. The Ld.Trial Court has also specifically stated in this judgment that the Power of Attorney is not produced before the Court. The next document is a Caveat. Upon perusal of the same, it can be said that the caveat is not signed before the Registrar of the court or before the Court. It is signed somewhere else and submitted before the Regitrar. The second document is Vakalatnama, which is obviously submitted by the Advocate for the parties. Nowhere it is found that it is executed before the Court. The third document is Written Statement. Generally, parties agree the proceedings appearing before the Registrar of the court and affirm the affirmation below the written statement as per the provisions of CPC. But, in the present case, if we peruse the affidavit, it is signed before the Notary and then brought before the Court.
19. Therefore, none of the documents are executed before the Court. But they were submitted before the Court and it is not a case of anybody that after submitting these documents before the Court an offence against justice or any mischief has been committed when this document is in the custody of the Court."
8. Thus, from the aforesaid findings recorded by the Sessions Court, it is clear that caveat, vakalatnama and written statement which were produced before the concerned trial Court in civil proceedings were not signed before the Court and after signing the said documents, the same were presented before the Court. Thus, specific finding is recorded that alleged forged documents were first prepared and thereafter produced before the Court.
9. At this stage, this Court would like to consider the provisions contained in Sections 193, 196, 199, 200, 205, 209 of Indian Penal Code. During the course of submission, it has been fairly conceded Page 6 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022 R/CR.MA/1216/2022 ORDER DATED: 03/02/2022 by the learned counsel appearing for respondent no.2 that aforesaid provisions would not be applicable in the facts of the present case. Though the application under Section 340 of the Code was submitted before the concerned court, it is the specific case of the respondent no.2 that the aforesaid three documents were forged and thereafter produced before the concerned civil court.
10. Thus, keeping in view the aforesaid factual aspects of the matter, the provisions contained in Section 195(1)(b) of the Code are required to be considered, which provides as under:
"195. Prosecution for contempt of lawful authority of public servant, 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, 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;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, 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), Page 7 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022 R/CR.MA/1216/2022 ORDER DATED: 03/02/2022 [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.]
11. At this stage, this Court would like to refer the decision rendered by the Hon'ble Supreme Court in Narendra Kumar Srivastava V/s State of Bihar and Others, reported in (2019)3 SCC 318, wherein it is held in paragraphs 22 and 23 as under:
"22. In Sachida Nand Singh (AIR 1998 SC 1121, Para 7 and 24) (supra) relied on by the learned counsel for the appellant, this Court was considering the question as to whether the bar contained in Section 195(1)(b)(ii) of the Cr.P.C. is applicable to a case where forgery of the document was committed before the document was produced in a court. It was held:
"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?
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."Page 8 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022
R/CR.MA/1216/2022 ORDER DATED: 03/02/2022 Thus, from the aforesaid observation, it is clear that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where the forgery of the document was committed before the document was produced in a Court.
12. Keeping in view the aforesaid decision, once again if the findings recorded by the Sessions Court in paragraph 19 of the impugned order is considered, it can be said that none of the alleged forged documents were executed before the Court and it is not the case of anybody that after submitting these documents before the Court, the offence against justice or any mischief has been committed with these documents when they were in custody of the Court.
13. Thus, in the facts and circumstances of the present case, as discussed hereinabove, this Court is of the view that bar under Section 195(1)(b)(ii) would not be applicable. therefore the impugned order passed by the Sessions Court is required to be quashed and set aside.
14. In view of the aforesaid discussion, this petition is allowed. The impugned order dated 27.12.2021 passed by the 4 th Additional Sessions Judge, Gandhidham, Kutch in Criminal Appeal No.11 of 20211 is quashed and set aside. However, it is open for the respondent no.2 herein to initiate appropriate proceedings before appropriate forum by filing private complaint/FIR in accordance with law. As and when such proceedings are initiated, the same shall be considered in accordance with law without being influenced by any of the observations made by this Court in the present order.
(VIPUL M. PANCHOLI, J) SRILATHA Page 9 of 9 Downloaded on : Mon Feb 07 20:33:16 IST 2022