Karnataka High Court
T.M. Harpanahalli vs State Of Karnataka on 20 October, 1987
Equivalent citations: ILR1987KAR3833
ORDER Navadgi, J.
In this Revision Petition, the Order dated 20-5-1985 made by the Additional Chief Judicial Magistrate, Dharwad, in C.C.No. 1723/83 on his file, is challenged.
2. I have heard the learned Counsel for petitioners Nos.1 and 2; Sri K. Srinivasa Gowda, the learned High Court Government Pleader for respondent No. 1; and the learned Counsel for respondents Nos.2 and 3. I have perused the record.
3. The question for determination is; Whether the order impugned in this Revision Petition is illegal, incorrect or improper so as to justify interference with it in this Revision Petition?
4. The facts relevant for our present purpose are very few and they are as follows:
Sham Krishna Rao Harapanahalli, respondent No. 3 herein, lodged a complaint against T.M. Harapanahalli (petitioner No. 1), Smt. Rama Bai, his wife (petitioner No 2) and Gulam Modin, respondent No. 2 herein, alleging offences punishable under Sections 466 and 107 read with Section 34 of the Indian Penal Code.
The Additional Chief Judicial Magistrate, Dharwad before whom the complaint was lodged, referred the same to the Circle Inspector of Police, Dharwad, for investigation and report under Section 156(3) of the Code of Criminal Procedure (the Code for short).
The Circle Inspector of Police, on completion of investigation, laid charge-sheet against petitioners Nos.l and 2 and respondent No. 2 for the offences under Sections 466 and 107 read with Section 34 of the I.P.C.
The allegations against petitioners Nos. 1 and 2 and respondent No. 2 are that between 1961 and 1977 they, with the common intention of unlawful gain of C.T.S.No. 113/2A/D and H.D.M.C House No. 11102, created a forged document of agreement for sale dated 2-4-1972 on a stamp paper of Rs.3/-showing an agreement for sale by the deceased father of respondent No. 3 of the property referred to earlier for a consideration of Rs. 23,000/- in favour of respondent No. 2 and that petitioners Nos. 1 and 2 and respondent No. 2 forged a bond showing the same as having been executed by the deceased father of respondent No. 3 for having received a sum of Rs. 13,000/ on 31-3 1975 and also forged another document showing the same as having been executed by the deceased father of respondent No. 3, dated 25-5-1977 for having received in all a sum of Rs.16,200/.
Petitioners Nos. 1 and 2 and respondent No,2 would be hereinafter referred to as A-1, A-2 and A-3 respectively. Respondent No. 3 would be hereinafter referred to as the complainant.
A-2 instituted a suit in O.S.No. 96/79 on the file of the Court of the Civil Judge, Dharwad, against A-3 and 5 others including the complainant arraying them as defendant No. 1 and defendants Nos.2 to 7. The persons arrayed as defendants Nos. 2 to 7 in the suit including the complainant are the heirs of K. M. Harapanahalli. The suit has been instituted on 14-12-1979 on the ground that A-3 had agreed to purchase the property from K. M. Harapanahalli under the agreement for sale dated 2-4-1972 and that there was earlier an agreement between A-2 on the one hand and A-3 on the other under which A-3 had agreed to purchase the property from the heirs of K. M. Harapanahalli (defendants Nos.2 to 7) and thereafter to convey the same in favour of A-2. A-2 further averred in the plaint that she has paid to A-3 a sum of Rs. 19,600/- in all under the agreement and that A-3 has paid the amount to his vendors, the heirs of K. M. Harapanahalli in a sum of Rs. 16,200/-. The suit filed by A-2 is for specific performance of the agreement for sale and other reliefs.
Defendant No. 2, the wife of K.M. Harapanaballi, and defendant No. 3 in O.S.No. 96/79 have filed a written statement contesting the reliefs. They have contended that the agreement of sale dated 2-4-1972 is a forged document and that A-2 in collusion with A-1 and A-3 has created the document with the sinister object of appropriating the property. The suit filed by A-2 is pending disposal.
The complainant, who is arrayed as defendant No. 5 in the suit, during the pendency of the suit came to lodge the complaint. According to the complaint allegations, the signatures appearing on the 3 documents dated 2-4-1972, 31-3-1975 and 25-5-1977, purporting to be of K.M. Harapanahalli, are forged signatures and the documents have been forged by A-1, A-2 and A-3 to appropriate the property.
It appears, during the investigation, the Investigating Agency submitted the disputed signatures of K.M Harapanahalli with the admitted signatures to the Handwriting Expert and the Handwriting Expert gave opinion supporting the prosecution case.
It appears, after the learned Magistrate took the charge-sheet on his file in C.C. No. 1723/83 and issued summonses to A-1, A-2 and A-3, A-1 to A-3 entered appearance and raised a contention that the learned Magistrate had no jurisdiction to proceed with the case, since the complaint had not been filed by the Court, but by an individual person. A-1 to A-3 relied upon the provisions contained in Section 195(1)(b)(ii) of the Code and the decision of the Supreme Court in Gopala Krishna Menon and anr. -v.- D. Raja Reddy and anr. .
The learned Magistrate, relying on the decision of the Kerala High Court in Philip -v.- Raphael and Ors. 1985 Crl LJ 126 and the decision of the Supreme Court in Patel Laljibhai Soma-bhai -v.- The State of Gujarat, relied upon by the prosecution, held that the complaint of the Court would be necessary only when the offence is committed after the commencement of the proceedings and not prior to it. Taking into consideration the allegations made by the prosecution that the offence of forgery alleged against A-1 to A-3 was committed by them before the institution of the suit, the learned Magistrate held that the complaint by the Court was not necessary and the provisions contained in Section 195(1)(b)(ii) of the Code were not attracted.
Negativing the contention of A-1 to A-3 that they were entitled for discharge and holding that he had jurisdiction to proceed with the trial of the offences alleged against A-1 to A-3, the learned Magistrate directed that charges shall be framed against A-1 to A-3.
It is this order of the learned Magistrate that is challenged in this Revision Petition.
5. Reading the provisions of Section 195(1)(c) of the Code of Criminal Procedure, 1898 (the Code of 1898 for short) and the provisions contained in Section 195(1)(b)(ii) of the Code, the learned Counsel for A-1 and A-2 submitted that in the provisions of Section 195(1)(b)(ii) of the Code, after the omission of the words "by a party to any proceeding in any Court" which appeared in Section 195(1)(c) of the Code of 1898, the scope of Section 195 of the Code has been enlarged ; that this fact is evident from the omission of the words "by a party to any proceeding in any Court'' and that it is no longer permissible to hold that Section 195(1)(b)(ii) of the Code applies only to the offences mentioned therein while a document is in custodia legis but will also take within its hold the documents about which such offences, if committed even prior to its production or being given in evidence in Court.
The Learned Counsel for A-1 and A-2 further submitted that in view of the provisions in Section 195(1)(b)(ii) of the Code, it must be held that the law pronounced by the Supreme Court in Patel Laljibhai Somabhai's case3 relied upon by the Learned Magistrate should be held as no longer good law. The Learned Counsel further contended that in view of the deletion of the words "by a party to any proceeding in any Court" in the new provision, the operation of the provision cannot be restricted to narrow field.
6. On the other hand, the Learned Counsel for the complainant submitted that the deletion of the words "by a party to any proceeding in any Court" which appeared in Section 195(1)(c) of the Code of 1898 from Section 195(1)(b)(ii) the correspouding provision in the Code does not go in favour of taking a wider view of Section 195(1)(b)(ii) of the Code. It was contended that the bar envisaged by Section 195(1)(b)(ii) of the Code against the prosecution except on complaint of the Civil Court is limited in its operation only to the offences mentioned in the said Section if committed in regard to a document produced or given in evidence in such proceedings while the document is in the custody of the Court and this bar has no application to a case in which such a document is fabricated prior to its production or given in evidence, and that such a view would be more in consonance with the scheme of the Code to provide harmonious interpretation and would not defeat or frustrate any other provision of the Code.
7. It appears necessary, having regard to the debate at the Bar to extract Section 195(1)(c) of the Code of 1898 and Section 195(1)(b)(ii) of the Code :
"195(1) (of the old Code) : No Court shall take cognizance :
(a) and (b) ....................................
(c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate."
"195(1) (of the new Code) :- (a) No Court shall take cognizance :
(a) and (b)(i) .....................................
(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".
8. The only difference noticed earlier in these two provisions extracted, is the omission of the words "by a party to any proceeding in any Court".
9. The first case of importance which dealt with the scope and ambit of Section 195(1)(c) of the Code of 1898 is Emperor -v.- Raja Kushal Pal Singh. AIR 1931 Allahabad 443 = (1931) 32 Crl. L.J. 1105 In the said case the Full Bench of the Allahabad High Court interpreted Section 195 (1)(c) of the Code of 1898 and held that the said Section applied only to those cases where the offences mentioned in the said Section were committed by a party as such to a proceeding in any Court in respect of a document which had been produced or given in evidence in such proceedings. The words "committed by a party to any proceedings in Court" were interpreted to convey the meaning ''committed by a person, who was already a party to the proceedings".
10. The Full Bench of the Gujarat High Court in The State of Gujarat -v.- Ali Bin Rajak ILR 1967 Gujarat 1091 dealt with the matter. There, one Har Govind Kalidas had obtained a decree against Ali Bin Rajak from the Court of a Civil Judge. Har Govind, the decree-holder, had filed an execution petition for recovering the decretal dues. In the said execution, the amount payable by the Mamlatdar to the Judgment-debtor Ali Bin Rajak under an annuity card came to be attached. The Garnishee order came to be served on the Mamlatdar. The Judgment-debtor thereafter appeared before the Mamlatdar and contended that he had paid the decretal dues to Har Govind. The Mamlatdar had required the Judgment-debtor to produce the receipt. The Judgment-debtor had produced the receipt on July 27, 1964 bearing the date May 23, 1964 purporting to be signed by Har Govind. The Mamlatdar, upon production of the receipt, had paid the amount under the annuity card to Rajak and had made a report to the Civil Court enclosing the receipt produced by Rajak. On receipt of the report, the Civil Court in which the execution petition was pending had called upon Har Govind to show cause why the execution application should not be disposed of. Har Govind denying the receipt of any amount from Rajak had alleged the receipt to be forged. The Civil Court had thereupon issued notice to Mamlatdar requiring him to show cause why he should not be hauhed up for contempt of Court. The Mamlatdar had regretted his action in making payment without the Civil Court's order and had explained how he relied upon Rajakte word. He had got the amount produced by Rajak and had forwarded the same to the Civil Court. Rajak had produced the amount under protest and subject to his right to claim the same.
Thereafter, Har Govird had lodged a complaint with the Police at Dhari and the Police on completion of the investigation had charge-sheeted Rajak. The Magistrates finding prima facie case, had committed Rajak to the Sessions Court for trial. The offences alleged were under Sections 420 and 471 of the I.P.C. The offence under Section 471 with which a one the Court was concerned had been based on the allegation that Rajak bad made use of the receipt dated May 23, 1964 alleged to be forged before the Mamlatdar by producing the same before that Officer.
Rajak had raised the objection that by virtue of Section 195(1)(c), the Court could not take cognizance of the case. The prosecution had contended that the forged receipt had been produced before the Camlatdar before its production in the Civil Court and, therefore, Section 195(1)(c) was inapplicable.
The majority of the Judges held that no complaint by the Court was necessary, whereas one learned Judge took the contrary view.
11. In Patel Laljibhai Somabhai's case3, the question raised related to the scope and effect of Section 195(1)(c) of the Code of 1898 and its applicability to cases where a orged document has been produced as evidence in a judicial proceedings by a party thereto and prosecution of that party is sought for offences under Sections 467 and 471 of the, I.P.C. in respect of that document.
The Supreme Court stated the underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 of the Code of 1898 in these words :
"7. The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those Sectioas to start criminal precautions on frivolous vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the Court's control because of their direct impact on the judicial process. It is the judicial process in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the Courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised As the purity of the proceedings of the Court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the Court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the Court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that Court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party. It may be recalled that the superior Court is equally competent under Section 476-A Cr.P.C. to consider the question of expediency of prosecution and to complain and there is also a right of appeal conferred by Section 476-B on a person on whose application the Court has refused to make a complaint under Section 476 or Section 476 A or against whom such a complaint has been made. The appellate Court is empowered after hearing the parties to direct the withdrawal of the complaint or as the case may be. itself to make the complaint. All these Sections read together indicate that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c) Cr.P.C. to the offences mentioned therein when committed by a part) to a proceeding in that Court prior to his becoming such party. It is no doubt true that quite often - if not almost invariably - the documents are forged for being used or produced in evidence in Court before the proceedings are started. But that in our opinion cannot be the controling factor, because to adopt that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence; years later by some other party would also be subject to Sections 195 and 476 Cr.P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by Section 190 Cr.P.C. without promoting the real purpose and object underlying these two Sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint."
12. After considering the decisions cited at the Bar, the Supreme Court noticing the existence of the two views, the wider and the narrow views of Section 195(1)(c), found that the language used in the said Section seemed to be capable of either meaning without straining it. After considering the effect of Section 476 and Section 195(1)(c) of the Code of 1898 the Supreme Court observed in Para-7 of the case (Patel Laljibhai Somabhai's case)3 extracted earlier.
13. The decision in Patel Laljibhai Somabhai's case3 was followed by the Supreme Court in Ragunath -v.- State of U.P., in Mohan Lal -v.- State of Rajasthan and in Legal Remembrancer of Government of West Bengal -v.- Haridas Mundra .
14. In Mohan Lal's case7, it was held on facts that since the forgery by the appellants of that case, was alleged to have been committed not after they become party to the mutation proceedings but prior to the commencement of those proceedings, Section 195(1)(c) was not attracted. In Legal Remembrancer of Government of West Bengal's case8, interpreting the legislative intent, it was held:
"This Court pointed out that the words of Section 195(1)(c) clearly meant that the offence should be alleged to have been committed by the party to the proceeding in his character as such party, that is, after having become a party to the proceeding. Sections 195(1)(c), 476 and 476-A read together indicated beyond doubt that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c) to the offences mentioned therein when committed by a party to a proceeding prior to his becoming such party. The scope and ambit of Section 195(1)(c) was thus restricted by this Court to cases where the offence was alleged to have been committed by a party to a proceeding after he became such party and not before. This view as to the interpretation of Section 195(1)(c) was reaffirmed by this Court in Raghunath v. State of U.P. and Mohan Lal v. State of Rajasthan, ".
15. The Supreme Court in Patel Laljibhai Somabhai's case3 after examining the relevant provisions, approving the view in Raja Kushal Pal Singh's case4 and AH Bin Rajak's case5 as a correct view, pointed out that the words of Section 195(1)(c) of the Code of 1898 clearly meant that the offence should be alleged to have been committed by a party to the proceeding in his character as such party, that is, after having become a party to the proceeding and that Sections 195(1)(c) and 478 read together indicated beyond doubt that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c) to the offences mentioned therein when committed by a party to a proceeding prior to his becoming such party. The scope and ambit of Section 195(1)(c) of the Code of 1898 was thus restricted by the Supreme Court to case* where the offence was alleged to have been committed by a party to a proceeding after he became such party and not before.
16. The question for consideration is : what is the object behind the deletion of the words "by a party to any proceeding in any Court in Section 195(1)(b)(ii) of the Code. We will find no indication that while enacting the Code, by deleting the words "by a parly to any proceeding in any Court" the Parliament intended to make any change or departure from the settled law. It appears, as is indicated from the Law Commission's Forty-First Report which led to the deletion of the words, that the purpose of deleting the words "by a party to any proceeding in any Court" was to extend the benefit to the scribe, witnesses and others intimately connected with the document in respect of which the offence is stated to have been committed.
17. To appreciate the purpose of the amendment in deleting the words "by a party to any proceeding in any Court", it would be advantageous to reproduce the relevant paragraph of the law Commission's Report (Volume I) :
"15.92 :- Under Clauses (b) and (c) of Section 195(1), the complaint of the civil, revenue or criminal Court concerned is necessary for any criminal Court to take cognizance of certain offences against public justice or certain offences relating to documents given in evidence. As observed in a Madras case, Ramaswamy v. P. Muduliar, AIR 1938 Mad 173, 174 : (1938-39 Crl LJ 1) "this salutary rule of law is founded on common sense.' The dignity and prestige of Courts of law must be upheld by their presiding officers, and it would never do to leave it to parties aggrieved to achieve in one prosecution gratification of personal revenge and vindication of a Court's honour and prestige. To allow this would be to sacrifice deliberately the dispassionate and impartial calm of tribunals and to allow a Court's prestige to be the sport of personal passions."
"15.93:- It will be noticed that while Clause (b) applies when any of the specified offences is committed in, or in relation to, any proceeding in any Court, Clause (c) applies only when the offence of forgery etc., is "alleged to have been committed by a party to any proceeding in Court in respect of a document produced or given in evidence in such proceedings." An important point that has to be considered here is whether the restriction of the application of the Section to a party to the proceeding should be retained. The purpose of the Section is to bar private prosecutions where the course of justice is sought to be perverted, leaving it to the Court itself to uphold its dignity and prestige. On principle there is no reason why the safeguard in Clause (c) should not apply to offences committed by witnesses also Witnesses need as much protection against vexatious prosecutions as parties and the Court should have as much control over the acts of witnesses that enter, as a component of a judicial proceeding, as over the acts of parties, If, therefore, the provisions of Clause (c) are extended to witnesses, the extension would be in conformity with the broad principle which forms the basis of Section 195."
18. These paragraphs give sufficient material to understand the legislative intent for deleting the words. In the absence of any material in the Law Commission's Report or the Objects and Reasons for the enactment of the Code, it would be difficult to hold that the Parliament enacted Section 195(1)(b)(ii) deleting the words "by a party to any proceeding in any Court" which appeared in the corresponding provision [Section 195(1)(c) of the Code of 1898] to include into the area of its operation the forgeries committed outside the Court or the commission of the offences which may be committed about the documents before they were produced or given in evidence in a proceeding in any Court.
19. An analysis of Section 195(1)(b)(ii) of the Code would make it clear that to attract the provisions, two conditions are required: (i) offence described in Section 463 or punishable under Sections 471, 475 or Sections 476 of the I.P.C ; and (ii) such offence must be alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. The provisions of Section 195(1)(b)(ii) of the Code admit of two constructions - the strict construction and the liberal construction. If the liberal construction is to be preferred, the bar would be applicable to all the cases involved in the offences mentioned in the Section in respect of a document produced or given in evidence in Court irrespective of the time when the offence alleged to have been committed. If the stricter construction is to be preferred, the bar would operate only if the offence is alleged to have been committed in respect of document which is produced or given in evidence and not to the offence committed earlier to the proceedings in Court.
20. Having regard to the statutory scheme and the purpose and the object of enacting the provision contained in Section 195(1)(b)(ii) of the Code, it appears, preference to the stricter construction would be in accordance with the legislative intent. The provision must be strictly construed because it encroaches upon the jurisdiction of the ordinary Criminal Courts empowered to take cognizance of the offences and punish them. Section 195 is engrafted by way of an exception to the ordinary powers of the Court. To construe the provision in a manner which would restrict the jurisdiction of the Criminal Courts in the absence of express provision providing for such restriction or necessary implication for such restriction ; would be improper.
21. The only question left over and which survives for consideration is : Whether the decision of the Supreme Court in Gopala Krishna Menon's case, referred to earlier, supports the contention of the learned Counsel for A-1 and A-2 that the prohibition imposed by Section 195(1)(b)(ii) of the Code would be applicable to all the cases involving the offences mentioned therein in respect of a document produced or given in evidence in Court, irrespective of the time when the offence was alleged to have been committed.
22. In Gopala Krishna Menon's case1, the appellants were fattier and son. They had taken a Printing Press from the first respondent therein in terms of an agreement dated December 3, 1980 with a view to carry on the printing business. The agreement stipulated that the appellants would have to deposit Rs. 20,000/- with Respondent-1 and pay Rs. 500/- per month as also 50 per cent of the net profits to Respondent-1. Disputes had arisen between the parties over the compliance of the terms of the agreement. Thereupon Respondent-1 had filed suits against the appellants for a mandatory injunction and for recovery of damages. Appellants too had filed a suit for refund of Rs. 20,000/- claimed to have been deposited with Respondent-1 and for recovery of certain sums on the footing that the said sums bad been paid to Respondent-1 by cheques and in cash. The appellants had produced the original contract as also the money receipt for Rs. 20,000/- along with the plaint in the Court in support of the claim made in the suit. After the production of the money receipt by the appellants in Court, Respondent-1 filed a complaint against the appellants alleging forgery of his signature on the money receipt and thereby commission of offences punishable under Sections 467 and 471 of the I.P.C. On receipt of summonses from the Court, the appellants had objected to the maintainability of the prosecution and had moved the High Court of Andhra Pradesh for quashing the proceedings by contending that in the absence of a complaint from the Court, the prosecution was barred in view of Section 195(1)(b)(ii) of the Code. They placed reliance on Section 340 of the Code in support of their contention. On these facts, the High Court of Andhra Pradesh held:
"From the above provisions, it is quite manifest that the offence which is mentioned in the complaint carries greater punishment, namely, 10 years imprisonment, whereas under Section 463, I.P.C. the punishment is infinitely lesser than the one under Section 467, namely 2 years or fine or both. That apart, in a case reported in 1979 Crl LR at 228 (229?), it has been held by the Gujarat High Court that the offences laid down under Sections 474 and 471, I.P.C are distinct. In that case it was contended that a complaint by A to police under Section 474 that B was in possession of forged documents with intention to use them in Court proceedings and thereafter B producing documents in Court, and thereby committing offence under Section 471 did not wipe out the offence under Section 474. The High Court held under these circumstances that the Magistrate can proceed with case under Section 474 against B grounding the reason that Section 195(1)(b)(ii) is not attracted.
The penal provisions as it is fairly settled ought to be interpreted very strictly and therefore on the foregoing analysis I have no hesitation in holding that Section 463 cannot be construed to include Section 467 as well and, therefore, certainly it is competent for the Magistrate to take cognizance of and try the same as it is needless to follow the case. Hence the contention on the basis of the provisions in Section 340 of the Code of Criminal Procedure fails and the same is rejected."
The question before the Supreme Court in this case was:
"The short question arising in this appeal by special leave is whether in the absence of necessary complaint by the Civil Court where a money receipt alleged to have been forged was produced, prosecution for offences punishable under Sections 467 and 471 read with Section 34 of the Indian Penal Code would be maintainable."
The Supreme Court held after quoting Sections 340 and 195(1)(b)(ii) of the Code that if Section 195(1)(b)(ii) was attracted to the facts of the case, in the absence of a complaint in writing of the Civil Court where the alleged forged receipt had been produced, taking of cognizance of the offence would be bad in law and the prosecution being not maintainable, there would be absolutely no justification to harass the appellants by allowing the prosecution to have a full-dressed trial. The Supreme Court held that the view of the Andhra Pradesh High Court that Section 463 of the I.P.C. cannot be construed to include Section 467 of the said Code was wrong and set aside the said view.
23. A careful reading of the Judgment of the Supreme Court in Gopala Krishna Menon's case1 would indicate that the question of the scope and extent of Section 195(1)(b)(ii) was not adjudicated by Their Lordships. However, it must be mentioned that the Supreme Court in Gopala Krishna Menon's case1 approved the ratio in Patel Laljibhai Soma-bhai's case3.
24. In Philip's case,2 the Kerala High Court has taken the view that the deletion of the words "by a party to any proceeding in any Court" which were there in Section 195(1) (c) of the Code of 1898 from the new provision has extended the right of the Court to file complaint, to others including witnesses and that the deletion of the words was not intended to affect the right in respect of the offences committed prior to the proceedings in Court, The view taken by the learned Single Judge is that Section 195(1)(b)(ii) postulates that the Court can file a complaint in respect of the specified offences when a document is produced or received in evidence in any proceeding in Court, only when the offence is committed in respect of such document after the commencement of the proceedings and that the complaint of the Court is not necessary when the offence is committed before the commencement of the proceedings in Court.
25. A Full Bench of the Punjab and Haryana High Court in Harbans Singh and Ors. v. - State of Punjab has held that Section 195(1)(b)(ii) of the Code which envisages bar against prosecution in respect of the offences mentioned therein except on a complaint of the Civil Court is limited in its operation to the offences committed while the document is in the custody of the Court.
26. The views taken by the learned Single Judge of the Kerala High Court2 and the Full Bench of the Punjab and Haryana High Court' reflect the correct view with regard to the scope and applicability of Section 195(1)(b)(ii) of the Code. The views are based on the decisions of the Supreme Court referred to in the two cases by the Kerla High Court2 and the Punjab and Haryana High Court9. I am in agreement with the views expressed by the aforesaid High Courts.
27. For the reasons given in the said decisions and for the reasons given by me earlier, I am not inclined to accept the contentions of the learned Counsel for A-1 and A-2 supported by the learned Counsel for A-3. For the reasons given earlier, I am inclined to accept the point canvassed by the learned Counsel for the complainant.
28. Since it is not in dispute that the forgeries are stated to have been committed in respect of the three documents before they were produced in Court in the Original Suit, it is my considered view that Section 595(1)(b)(ii) of the Code has no application. The order of the learned Additional Chief Judicial Magistrate assailed in this Revision Petition appears to be legal, sound and correct, calling for no interference.
29. In the result, for the reasons aforesaid, the Revision Petition fails. The same is hereby dismissed.