Andhra HC (Pre-Telangana)
Kodati Ramana Alias Venkatarama Rao And ... vs The Station House Officer, Penpahad ... on 4 October, 1991
Equivalent citations: 1991(3)ALT354, 1992CRILJ680
ORDER
1. The writ petition is filed seeking a writ or direction in the nature of a mandamus directing the complaint filed by the 3rd respondent on the file of the Judicial Magistrate of the First Class, Suryapet, the 2nd respondent, and action for the 2nd respondent referring the complaint to the Station House Officer, Penpahad Police Station, the 1st respondent, u/S. 156(3) of the Code of Criminal Procedure for investigation, which was registered as Crime No. 25 of 1990, as illegal and consequently quash the same.
2. The brief facts of the case as stated in the affidavit filed in support of the writ petition are that the 3rd respondent is the senior paternal uncle's wife of the 1st petitioner. The 1st petitioner purchased Ac. 49-21 guntas of land in various survey numbers situate in Bhaktallapur village, Nalgonda district under an agreement of sale dated 18-5-1982 from the 3rd respondent for a consideration of Rs. 40,000/-. After paying the entire consideration, he was put in possession of the land on the same day. Since the date of purchase, the 1st petitioner is paying the land revenue and his name is entered in the revenue records as possessor. In the year 1987, some third parties started interfering with the possession of the 1st petitioner. Then he filed O.S. No. 885 of 1987 on the file of the District Munsif Court, Suryapet against third parties for a permanent injunction. Pending the said suit, he also filed I.A. No. 175 of 1987 and obtained interim order of injunction, which was later made absolute. While so, the 3rd respondent filed a private complaint before the 2nd respondent against the petitioners and another alleging that the petitioners forged the agreement of sale dated 18-5-1982, which was filed in the court in O.S. No. 885 of 1987, and that the 3rd respondent has not at all executed the same in favour of the 1st petitioner. Thereupon, the 2nd respondent referred the complaint u/S. 156(3), Cr.P.C. to the 1st respondent for investigation. The 1st respondent registered the same as Crime No. 25 of 1990 u/Ss. 192, 193, 423, 465, 466, 467 and 468 read with 109 of the Indian Penal Code, arrested the 1st petitioner and later on released him on bail.
3. It is the case of the petitioners that the 2nd respondent has no jurisdiction to take cognizance of offences alleged unless a complaint is filed by the Court or anybody on behalf of the Court as laid down u/S. 195, Cr.P.C., that in this case since the complaint was filed by the 3rd respondent not by Court or any person on behalf of the Court the 2nd respondent has no jurisdiction to refer the matter u/S. 156(3), Cr.P.C. to the police for investigation and that, therefore, the writ petition has to be allowed as prayed for.
4. The 3rd respondent filed a counter-affidavit averring that there is no bar for taking cognizance of offences by the Criminal Court and the criminal court has rightly referred the matter u/S. 156, Cr.P.C. to the 2nd respondent for investigation. The bar laid down u/S. 195, Cr.P.C. applies only when a party to the proceedings files a complaint, but not by the third parties. The writ petition was filed with an intention to drag on the proceedings in the criminal case. There are no merits in the writ petition and the same is liable to be dismissed.
The points that arise for consideration are :
1) Whether the private complaint filed by the 3rd respondent before the 2nd respondent is not maintainable unless the same is filed as per the procedure laid down u/S. 195, Cr.P.C. ?
2) Whether this Court under Art. 226 of the Constitution can quash the investigation in a criminal case ordered by the Criminal Court in exercise of its powers conferred under S. 156(3), Cr.P.C. ?
5. Point No. 1 : To decide the issue, it is relevant to extract the relevant provisions of S. 195, Code of Criminal Procedure, 1973 :
"195(1). No court shall take cognizance -
(a) ......................................
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Ss. 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 S. 463, or punishable u/S. 471, S. 475 or S. 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) ..............................
except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."
6. The learned counsel for the petitioners relied on the decision in Virindar Kumar v. State of Punjab wherein it is held (para 5) :
"If the complaint relates to offences mentioned in Ss. 195(1)(b) and 195(1)(c), an appeal would be competent, but not if it relates to offences mentioned in S. 195(1)(a). Where the order of the Magistrate directs that the appellant should be prosecuted for offences u/Ss. 181, 182 and 193, IPC, the order in so far as it relates to offences u/Ss. 181 and 182 is not appealable, as they fall directly u/S. 195(1)(a).
Section 193 makes it an offence to give false evidence whether it be in a judicial proceeding or not, and it likewise makes it an offence to fabricate false evidence for use in a judicial proceeding or elsewhere. If the offence is not committed in a judicial proceeding, then it with fall outside S. 195(1)(b), which applies only when it is committed in or in relation to a proceeding in Court, and there is in consequence no bar to a complaint being made in respect thereof unaffected by the restrictions contained in S. 195(1)(b).
But if the offence u/S. 193 is committed in or in relation to a proceeding in Court, then it will fall u/S. 195(1)(b), and the order directing prosecution u/S. 476 will be appellable u/S. 476-B. The point for decision in such a case therefore, is, whether the offence is committed in relation to proceedings before a 'Court'."
7. He also relied on the decision in P. C. Gupta v. State 1974 Cri LJ 945 wherein a Full Bench of the Allahabad High Court held :
"The proceedings contemplated by S. 195(1)(b) need not be in existence on the date of the commission of offence u/S. 211, IPC. The fact that the proceeding had concluded would be immaterial. The words "any proceeding" used in S. 195(1)(b) of the Code are words of amplitude and have no limitations, except that the proceedings should be before a Court. While granting bail, in any case, the Judicial Officer conducts judicial proceedings and acts in the capacity of a Court. The word "any" which precedes the expression 'proceeding" is interchangeable with the words "every" or "all"."
8. As per S. 195(1)(b)(i) Cr.P.C., no Court shall take cognizance of offences punishable u/Ss. 193 to 196, 199, 200, 205 to 211 and 228, IPC when such offences are alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court or some other Court, to which that Court is subordinate. In the present case, the crime was registered for offences u/Ss. 192 and 193, IPC apart from other offences under the Indian Penal Code. S. 192, IPC deals with "fabricating false evidence" and S. 193, IPC prescribes "punishment for giving false evidence." These two offences arise in, or in relation to, proceeding in a Court. Fabricating of false evidence i.e. creating a forged agreement of sale and filing the same into the Court along with affidavits, is an offence, which is committed in, or in relation to, proceeding in a Court. Therefore, the bar laid down u/S. 195(1)(b), Cr.P.C. squarely applies to the case on hand.
9. In view of the above case law and the legal position, the Criminal Court, the 2nd respondent, is precluded from taking cognizance of offences u/Ss. 192 and 193, IPC alleged in the complaint filed by the 3rd respondent against the petitioners.
10. Coming to offences mentioned in the complaint viz., Ss. 465, 466 and 467, IPC i.e. punishment for forgery; forgery of record of court or of public register and forgery of valuable security, will, etc., respectively, sub-clause (ii) of clause (b) of S. 195(1), Cr.P.C., says that no court shall take cognizance of any offence described in S. 463, or punishable u/S. 471, S. 475 or S. 476, IPC, when such an offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, unless the complaint is filed in writing by the court or some other court, to which that court is subordinate. The offences described in S. 463 are Ss. 465, 466 and 467, IPC. Punishments are prescribed u/S. 465, IPC for forgery; u/S. 466, IPC for forgery of record of court or of public register and u/S. 467, IPC for forgery of valuable security, will, etc. Therefore, the bar imposed u/S. 195(1)(b)(ii), Cr.P.C., to take cognizance of a private complaint applies to Ss. 465 to 467, IPC also.
11. The offence u/S. 468, IPC i.e., "forgery for the purpose of cheating", is an independent offence, not connected with any proceeding in court or in relation to any proceeding in court. This is not a bar either under sub-clause (i) or (ii) of clause (b) of S. 195(1), Cr.P.C.
12. Further, the offence u/S. 423, IPC i.e. "Dishonest or fraudulent execution of deed of transfer containing false statement of consideration" is also alleged in the complaint. This is also a separate and distinct offence from forgery. In so far as this offence is concerned there is no bar either under sub-clause (i) or (ii) of clause (b) of S. 195(1), Cr.P.C.
13. The learned counsel for the petitioners contended that even if we presume that there is no bar to take cognizance of offences u/Ss. 423 and 468, IPC, no case is made out against the petitioners on a perusal of the complaint made by the 3rd respondent u/Ss. 423 and 468, IPC and, therefore, the complaint can be quashed in toto. He relied on the judgments of the Patna High Court in Amiri Singh v. Emperor AIR 1933 Patna 495 : (1933 (34) Cri LJ 846) and Mathura Nath v. Biria Uraon . I was taken through the complaint. The criminal case is just at the stage of investigation and it is not desirable, at this stage, to say whether or not a case is made out for the offences u/Ss. 423 and 468, IPC. Further, the facts of the case relied on in this behalf are quite different from the facts of the case on hand. Therefore, the contention of the learned counsel for the petitioners has no merit in this behalf and the same is accordingly rejected.
14. It is relevant to refer to some of the judgments dealing with the bar imposed u/S. 195, Cr.P.C. In State of Punjab v. Brij Lal Palta (1969) 1 SCR 853 : 1969 Cri LJ 645 the Supreme Court held (at p. 649 of Cr LJ) :
"The next question is whether the other offences in respect of which a police report and a charge sheet have been submitted against the respondent can be proceeded with. The High Court has quashed the entire proceedings which would include offences other than those u/Ss. 182, 211 and 193. Some of them were even non-cognizable offences i.e. Ss. 467, 471, 385 etc. It is well-settled by now that while investigating the commission of a cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. (vide Pravin Chandra Mody v. State of A.P., . There can be no objection therefore to the continuance of proceedings relating to offences alleged against the respondent other than those covered by Ss. 182, 211 and 193 of the Penal Code."
15. Ultimately the Supreme Court quashed the proceedings in respect of offences other than those u/Ss. 182, 211 and 193, IPC.
16. In Bashir-ul-Huq v. State of West Bengal it is held (para 14) :
"Section 195 does not bar the trail of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section but the provisions of that Section cannot be evaded by resorting to devices of camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which complaint of the court or of the public servant is required."
17. In In Re Chinnayya Goundan, AIR 1948 Madras 474 : (1948 (49) Cri LJ 5737) the Madras High Court held (para 6) :
"When a complaint is made to a Court the facts should be considered as a whole and there should be no splitting up of the facts. Therefore, the Court is not entitled to disregard some of the facts and try an accused person for an offence which the remaining facts disclose. Considering the facts as a whole, if they disclose an offence for which a special complaint is necessary under the provisions of S. 195, Criminal P.C., a Court cannot take cognizance of the case at all unless that special complaint has been filed."
18. In Tarachand v. Emperor, AIR 1944 Sind 130 : (1945 (46) Cri LJ 97), it is held :
"The purpose of S. 195, Criminal P.C., was to keep within the control of the court in the public interests offences committed in relation to their proceedings, and it would be an evasion of the provisions of that section to allow an aggrieved party merely by placing the offence under another section to escape its provisions.
Where the facts primarily and essentially disclose an offence under S. 210, Penal Code, the other offences alleged being merely subsidiary to the main offence the complainant could not be permitted to evade the provisions of S. 195, Criminal P.C., by omitting S. 210 from the complaint.
The bar of S. 195 applies even against an accused, who was not party to civil proceedings, but was proceeded against as an abettor of an offence u/S. 210, Penal Code."
19. In State of U.P. v. Suresh Chandra Srivastava, the Supreme Court held (at p. 928 of Cri LJ) :
"In the instant case, as already pointed out by us, on the facts narrated by the Registrar in his complaint no offence u/Ss. 467, 471 and 120-B, Indian Penal Code, is at all revealed and as such it is not necessary to go into the question as to what offences are connected with Ss. 467, 471 and 120-B and which are severable from them. The High Court was fully justified in quashing the proceedings against the accused as far as offences under Ss. 467, 471 and 120-B, IPC were concerned, not because they were covered by S. 195 of the Code but because allegations contained in the complaint did not constitute these offences. The High Court was further fully justified in directing that other offences mentioned above did not require a complaint u/S. 195 and would have to be tried."
20. The learned counsel for the 3rd respondent contended that the bar imposed u/S. 195, Code of Criminal Procedure, applies only to party to the proceedings in court, but not to others. He relied on the judgment of the Supreme Court in Mohan Lal v. State of Rajasthan, . In that case, the Supreme Court, while considering the provisions of S. 195(1)(c) of the 1898 Code of Criminal Procedure, held :
"Held that the forgery was alleged to have been committed by the accused prior to the commencement of the mutation proceeding and not after they became parties to those proceedings and hence S. 195(1)(c) was not applicable at least in regard to the offences u/Ss. 464, 467 and 468 and the magistrate could take cognizance of the offences."
The Supreme Court referred to its earlier judgments in Patel Laljibhai Sombhai v. State of Gujarat and Raghunath v. State of U.P. .
21. Before the amendment of the 1898 Code of Criminal Procedure, by 1973 Code, the provisions of clauses (b) and (c) of S. 195(1) read as follows :
"195(1). No Court shall take cognizance -
(a) ............................
(b) of any offence punishable under any of the following sections of the same Code viz., Ss. 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 111 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of such court or of some other court to which such court is subordinate; or
(c) of any offence described in S. 463, or punishable u/S. 471, S. 475 or S. 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."
22. After the amendment of S. 195 of the 1898 Code by 1973 Code, the relevant provisions of which have been already extracted hereinabove, the words "by a party to any proceeding in any Court" are omitted. Therefore, the judgment of the Supreme Court in Mohal Lal's case (1974 Cri LJ 350) is no more applicable to the case on hand after the amendment of the provisions by 1975 Code.
23. In view of the above case law, it is held that the 2nd respondent has no jurisdiction to take cognizance of offences u/Ss. 192, 193 and 465 to 467 and consequently, he has no jurisdiction to refer the case u/S. 156(3), Cr.P.C. to the police for investigation. The private complaint filed by the 3rd respondent on the file of the 2nd respondent, which was referred to the 1st respondent for investigation is, therefore, held not maintainable in respect of offences u/Ss. 192, 193 and 465 to 467, IPC.
24. Point No. 2 :- The next question that arises for consideration is whether the High Court, in exercise of its powers under Art. 226 of the Constitution can quash the investigation ordered by the criminal court ? It has been laid down that generally the courts will be reluctant to quash the investigation and the FIRs, but the same, in exceptional circumstances, cannot be a bar to quash the investigation or the FIRs. In Jehan Singh v. Delhi Administration, the Supreme Court, while considering S. 561-A of the 1898 Code (equivalent to S. 482 of the 1973 Code), held that the courts will not generally quash the investigations. In Emperor v. Nazir Ahmad AIR 1945 PC 18 : (1945 (46) Cri LJ 413) also it is held that the courts will be reluctant to quash the investigation and the FIRs. In a later judgment in State of W.B. v. Swapan Kumar held that where the FIR does not disclose any offence the Court has got power to quash the investigation. After considering a number of judgments, the Supreme Court held (paras 21 to 23) :
"The position which emerges from these decisions and the other decisions which are discussed by Brother A. N. Sen is that the condition precedent to the commencement of investigation u/S. 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S. 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect that commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR, prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmed AIR 1945 PC 18 : (1945 (46) Cri LJ 413) will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.
There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in the sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code. I may, in this behalf, usefully draw attention to the warning uttered by Mathew J., in his majority judgment in Prabhu Dayal Deorah v. The District Magistrate, Kamrup, , to the following effect :
"We say, and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law".
For these reasons, which, frankly, are no different from those given by my learned Brother A. N. Sen, I am of the opinion that the investigation which has been commenced upon the First Information Report is without jurisdiction and must, therefore, be quashed. I do accordingly and direct that no further investigation shall take place in pursuance or on the basis of the FIR dated Dec. 13, 1980 lodged by the Commercial Tax Officer, Bureau of Investigation, with the Deputy Superintendent of Police, Bureau of Investigation, Madan Street, Calcutta."
25. In the instant case the complaint filed by the 3rd respondent in so far it relates to the offences u/Ss. 192, 193 and 465 to 467, as held supra, is not maintainable and consequently cannot be taken cognizance of, even if the investigation ordered reveals a prima facie case in respect of the said offences. The whole process of investigation, therefore, will be futile exercise. Thus, the case on hand is in fact an afortiorari one as compared to the one in Swapan Kumar's case (1982 Cri LJ 819) (SC) (supra).
26. In the result, the writ petition is allowed in part, the complaint in Crime No. 25 of 90 of Penpahad Police Station, Nalgonda I strict, to the extent of offences u/Ss. 192, 193 and 465 to 467, IPC, alone is quashed as not maintainable, the direction of the 2nd respondent referring the said complaint to the police u/S. 156(3), Cr.P.C. for investigation into the above said offence is declared as illegal. However, the complaint to the extent of offences u/Ss. 423 and 468, IPC is declared valid and the investigation as ordered by the 2nd respondent in regard to these offences may be proceeded with by the 1st respondent. No costs. Advocate's fee Rs. 300/-.
27. Petition partly allowed.