Orissa High Court
Manoranjan Khatua vs State Of Orissa on 20 March, 1989
Equivalent citations: 1990CRILJ1583
ORDER K.P. Mohapatra, J.
1. The petitioner has challenged the order passed by the learned Chief Judicial Magistrate. Cuttack, taking cognizance of offences under Sections 466, 471 and 419 read with Section 34 of the Indian Penal Code ('I.P.C.' for short) against him.
2. Facts may be narrated in brief. One Abhiram Mohanty said to be a notorious dacoit was arrested and was in jail custody in connection with G.R. Case Nos. 1419 of 1981, and 73, 235 and 549 of 1982 pending in the Court of the learned Chief Judicial Magistrate, Cuttack. He was granted bail and for the purpose of release, he was required to furnish bail bonds with two sureties for the bail amount subject to the satisfaction of the Court. The petitioner was one of the counsel appearing for Abhiram Mohanty in those cases. The person who was looking after the cases on his behalf arranged two sureties, one of whom was stated to be one Jadu Behera, son of Ratha Behera of village Palasia, P. S. Choudwar, district, Cuttack. Document such as, record of rights and rent receipts etc. stood in the name of the said Jadu Behera and in view of such documents, the petitioner identified him as one of the sureties not only in the bail bonds, but also in the affidavit. The bail bonds and the affidavit were filed in the Court for the purpose of passing the release order. The release order, however, could not be passed, because the said accused was also involved in another case pending in the Court of the Sub-Divisional Judicial Magistrate, Jajpur, in which bail was not granted.
Subsequently, however, it transpired that Jadu Behera was not the real surety. He did not produce documents, did not sign the bail bonds and also did not swear the affidavit. Somebody else impersonated him, forged the documents, swore a false affidavit and cheated the Court for the purpose of release of the accused. The petitioner being an advocate attested the signatures of the impersonator and identified him as the real person, namely, Jadu Behera in the bail bonds and in the affidavit. He played an important role for securing illegal release of the accused on the basis of forged and fabricated documents as also by identification of a person whom impersonated another innocent man. All these facts came to the notice of the Additional Superintendent of Police (Sadar), Cuttack, who submitted an F.I.R. on 11-1-1983 at Lalbag Police Station in consequence of which the petitioner was arrested and subsequently he was released on bail by the Court. The case was investigated against him and another surety named, Nakula Palai whose identity, however, was not in dispute and a charge-sheet under Sections 466, 471 and 419 read with Section 34, I.P.C. was filed.
3. In the petition, the petitioner has stated that the person who was looking after the case of Abhiram Mohanthy produced two sureties both of whom disclosed their names as Jadu Behera, son of Ratha Behera of village Palasia, P. S. Choudwar, District-Cuttack and Nakula Palai, son of late Basu Palai of Dagarpara, P. S. Lalbag, District-Cuttack. Both of them produced documents showing that they had landed property. The petitioner had no scope to doubt the identity of the persons and in good faith not only he attested their signatures in the bail bonds, but also identified them in the affidavit. The learned Chief Judicial Magistrate also verified the documents and was satisfied that they were real persons in possession of documents having immovable property and were solvent as sureties. That being the position, there was no scope for the learned Court below to take cognizance of the offences against him.
4. By order dated 16-1-1985 the learned Chief Judicial Magistrate took cognizance of offences under Sections 466, 471 and 419 read with Section 34, I.P.C. upon the charge-sheet. An offence under Section 466 is punishable if a person forges a document, purporting to be a record or proceeding of or in a Court of justice etc. as described therein. The offence is relatable to Sections 463 and 464 which define forgery and making a false document. An offence under Section 471 is punishable when a person fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document. This offence is also relatable to Section 463. According to Section 195(1)(b)(ii) of the Code of Criminal Procedure (hereinafter referred to as the 'Code'), no Court shall take cognizance of any offence described in Section 463, or punishable under Section 471, I.P.C. 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 except on the complaint in writing of that Court or of a some other Court to which that Court is subordinate.
In AIR 1979 SC 437 : (1979 Cri LJ 193), Dr. S.L. Goswami v. The High Court of Madhya Pradesh, it was held that Section 466, I.P.C. is an aggravated form of forgery in that the forgery should relate to a document specified in the section. One of the documents specified is a document purporting to be a record or proceeding of or in a Court of justice. Section 466 is, therefore, an offence as described in Section 463, I.P.C. which is committed in relation to a record or proceeding of or in a Court of justice. It was, therefore, held that an offence under Section 466, I.P.C. also came within the purview of Section 195(1)(c) of the old Code identical to Section 195(1)(b)(ii) of the new Code. In AIR 1983 SC 1053 : (1983 Cri LJ 1599), Gopalakrishna Menon v. D. Raja Reddy, the principle laid down in the case of Dr. S. L. Goswami v. The High Court of Madhya Pradesh (supra) was approved and although one of the offences referred to in that case was under Section 467, I.P.C. (in this, case Section 466, I.P.C.), it was held that Section 467 is in respect of an offence described in Section 463. Once it is accepted that Section 463 defines forgery and S 467 punishes forgery of a particular category, the provisions of Section 195(1)(b)(ii) of the Code would immediately be attracted and on the basis that the offence punishable under Section 467 is an offence described in Section 463, I.P.C., in the absence of a complaint by the Court the prosecution would not be maintainable. In view of the aforesaid principles, law is well settled that cognizance for commission of offences under Sections 466 and 471, I.P.C. cannot be taken by Court except on the complaint in writing of a Court or some other court to which that Court is subordinate in accordance with the provisions of Section 195(1)(b)(ii) of the Code. In this case, no complaint was made against the petitioner for having committed offences under Sections 466 and 471, I.P.C. Cognizance was taken on submission of charge-sheet by the police. Therefore, the order of cognizance is unsustainable for these two offences as being barred by Section 195(1)(b)(ii) of the Code.
5. The remaining offence is Section 419, I.P.C. which is punishment for cheating by personation. Even if the allegation made in the charge-sheet is accepted to the effect that some persons impersonated the sureties and signed the bail bonds and the affidavits which were identified by the petitioner representing the accused as counsel, it cannot be said for a moment that he himself impersonated any one of the sureties. The above apart, a few facts need consideration. The accused in the case, Abhiram Mohanty was inside the prison. Someone was looking after the cases against him. He produced two persons who were willing to act as sureties. Those two persons had documents with them which showed that they were Jadu Behera, son of Ratha Behera of village Palasia, P. S. Choudwar, District-Cuttack, and Nakula Palai, son of late Basu Palai of Dagarpara, P. S. Lalbag, District-Cuttack and held immovable property. Normally a person in such circumstances would accept them as genuine persons answering to the names of Jadu Behera and Nakula Palai. The Court also accepted them as such. It cannot, therefore, be said that the petitioner, a counsel for accused Abhiram Mohanty intentionally and knowing it fully well that the persons were impersonators, identified them as genuine persons in the bail bonds, as well as in the affidavit. In this connection, reference can be made to a decision reported in 1973 Cri LJ 47 : AIR 1972 SC 2598, Hiralal Jain v. Delhi Administration.
In that case, an advocate was engaged by some persons for identifying them as claimants in an application made on their behalf to claim certain land acquisition compensation amount. The advocate believing the statements of the claimants as true filed his vakalatnama agreeing to act on their behalf. There was no evidence to show prior knowledge on the part of the advocate that the claimants were not the real persons entitled to claim the amount and no concert between the former and the latter was brought on record. It was, therefore, held that there was no prima facie evidence to commit the advocate for offences under Section 120B read with Sections 419, 420, 511 and 467 read with Section 471, I.P.C. In this case also there is no allegation that the petitioner had prior knowledge of the impersonators and knowing it fully well that they were not the real persons, identified them in the bail bonds and the affidavit. So, even if the allegations made in the charge-sheet are fully accepted, yet there is no prima facie material against the petitioner for having committed an offence under Section 419, I.P.C.
6. There is yet another aspect to consider the offence under Section 419, I.P.C. in relation to the principle laid down in AIR 1984 SC 1108 : (1984 Cri LJ 926), State of U. P. v. Suresh Chandra Srivastava It was held that law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, the said section will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code. A similar view had been taken in AIR 1981 SC 1417 : (1981 Cri LJ 1019), State of Karnataka v. Hemareddy, in which it was held that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) and an offence for which a complaint of a Court is necessary under that sub-section are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code should be upheld.
Relying upon this decision, a learned Judge of the" Allahabad High Court in 1983 Cri LJ 24, Smt. Maharaji v. Rama Shanker, held in a case under Sections 419, 420, 467 read with Sections 120B and 109, I.P.C. that all the offences were alleged to have been committed in the course of the same transaction and as for an offence under Section 467 complaint by the court was necessary, similarly complaint by, the Court for the offences under Sections 419 and 420 was also necessary. In this case, the alleged offences according to the prosecution were committed in course of the same transaction. The offences under Sections 466 and 471 cannot be split up from the offence under Section 419, I.P.C. It has been already held that complaint of the Court of the learned Chief Judicial Magistrate was necessary for the offences under Sections 466 and 471 and so a similar complaint should also have been necessary by the said Court for the offence under Section 419, I.P.C. as well. The order of cognizance for the offence under Section 419 is, therefore, unsustainable.
7. To sum up, even thoug the allegations against the petitioner made in the charge-sheet submitted by the police are accepted as correct, for violation of the provisions of Section 195(1)(b)(ii), the order of cognizance is unsupportable in law and is liable to be quashed under Section 482 of the Code.
8. In the result, the petition is allowed. The proceeding in G.R. Case No. 94(J) of 1983/252T of 1985 pending in the Court of the learned Chief Judicial Magistrate, Cut-tack, is quashed.