Allahabad High Court
Padohi Ram vs State Of Uttar Pradesh And Anr. on 17 August, 1988
Equivalent citations: 1990CRILJ495
ORDER A.N. Dikshita, J.
1. This application under Section, Cr. P.C. has been filed with a prayer to quash the proceedings in Case Crime No. 44 of 1985 under Sections 419/420/467/120-B, I.P.C.
2. Facts in brief are that one Balihari s/ o Jokhan r/o Jungle Jhanjhwa, P. S. Pipiganj, District Gorakhpur is the owner of some agricultural land. It is alleged that Padohi and others forged signatures of Balihari with the intention to usurp his agricultural land. Padohi and others hatching a conspiracy impersonated and forged documents to deprive Balihari of the land.
3. On coming to know of it Balihari filed an application before the competent Magistrate under Section 156(3) of the Code of Criminal Procedure whereupon a case was registered at P. S. Pharenda. After completing the investigation a charge-sheet was filed. Meanwhile Padohi and others slipped away from their houses and ultimately surrendered themselves in the Court of Judicial Magistrate-I, Gorakhpur who granted the bail. Thereafter, Balihari moved an application for cancellation of bail of Padohi Ram which was allowed by the learned Sessions Judge, Gorakhpur.
4. The applicant, thereupon, has filed the instant application for quashing the proceedings against him as mentioned earlier.
5. Heard learned counsel for the parties and Sri N. S. Kulshrestha holding brief for the State.
6. There is no dispute that on the basis of the sale deed which was duly executed and registered procedings for mutating the name of the purchaser was pending before the competent Court in regard to the sale of plot No. 83 Min. area O. 16 acre of village Jungle Jhanjhwa, Pargana Haveli, Tehsil-Pharenda, district Gorakhpur (land in question).
7. It has been contended on behalf of the applicant that Balihari along with co-tenure-holder had executed a sale deed in favour of the applicant out of his own sweet will and thereafter Padohi Ram (purchaser) applied for mutation on 5-2-85. When notices were issued to the parties, Balihari filed an objection in the mutation proceedings on 6-6-1985.
8. The mutation proceedings are still pending.
9. Learned counsel for the applicant has vehemently urged that in view of the provisions of Section 195, Cr. P.C. no proceedings can be launched on the basis of a private complaint. It has further been urged that if it is ultimately found that the sale deed has been forged, then complaint can be filed by the Court alone as provided under Section 195, Cr. P.C. There is merit in this submission. The Court below on the basis of the complaint of Balihari could not have taken cognizance except in accordance with law as enjoined under Section 195(1)(b)(ii), Cr. P.C. Section 195(1)(b)(ii) may be extracted thus :
"Section 195(1)(b)(ii). No Court shall take cognizance --
of any offence described in Section 463 or punishable under Sections 471, 475 or 476 alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(ii) of any criminal conspiracy to commit, or attempt to commit or abetment of, any offence specified in Sub-clause (i) or Sub-clause (ii), Except on the complaint in writing of that Court or of some other Court to which that Court is subordinate."
It is manifest from the facts recited above that the learned Magistrate took the cognizance on the basis of a complaint filed by Balihari. It has been stated in the application under Section 156(3), Cr. P.C. that Padohi Ram and other persons conspired together and fraudulently forged a sale deed in favour of Padohi Ram. The sale deed is subject matter of evidence for the mutation in favour of Padohi Ram and such proceedings are pending before the revenue authority. Section 195(1)(b)(ii) provides that no Magistrate shall take cognizance of any offence described in Section 463 except on the complaint in writing of that Court. Section 467 provides punishment for forgery of valuable security and Section 468 lays down the punishment. It is thus clear that Sections 467 and 468, I.P.C. provide punishment for forgery. Further Section 195(1)(b)(iii) prohibits the Magistrate from taking any cognizance in a case of criminal conspiracy to commit or attempt to commit or abatement of any offence specified. It is thus abundantly clear that the Magistrate could not have taken cognizance on the complaint filed by Balihari.
10. Further the facts as stated in the complaint do not make out a separate and distinct offence against the applicants under Sections 419/420, I.P.C. It is well settled that where no distinct and separate offences under Sections 419/420, I.P.C. is made out other than the one under Section 195, Cr. P.C. also no cognizance can be taken.
11. Learned counsel for the applicant has also placed reliance in the case of Narvadeshwar Tiwari v. State of U.P., 1987 All Cri C 63 : (1987 All LJ 367). I am in respectful agreement with the view taken by brother Hon'ble R. A. Mishra, J.
12. In the result the entire complaint along with the order of summoning the applicant passed by the learned Magistrate deserves to be quashed.
13. The application is allowed. Proceedings in Criminal Case No. 44 of 1985, Balihari v. Padohi Ram and Ors. arising out of the complaint filed by Balihari pending in the Court of Judicial Magistrate I, Gorakhpur are hereby quashed.
14. However, it would be open to the authorities before whom the investigation proceedings are pending to file a complaint under Section 195, Cr. P.C. in case it is found that an offence of the nature as described therein has been committed.