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2. It is the contention of the learned counsel for the applicant that the alleged will that was set up in the probate case (Test Case 35/1995) was a forged one and, therefore, Section 195(1)(b)(ii) was attracted and, accordingly, this court could issue directions for filing of a complaint in terms of the provisions of Section 340 of the CrPC. On the one hand, Mr Makhija appearing for Mr Solil Chatterjee and Mr Luthra appearing for Mrs Saraswati Chatterjee, took up a common contention that the application under Section 340 would not be maintainable in view of the Constitution Bench decision of the Supreme Court in the case of Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. .

5. Under these circumstances, Mr Sanjoy Chatterjee has filed this application under Section 340 of the CrPC claiming the reliefs aforesaid. Since the issue is with regard to the maintainability of the present application under Section 340 of CrPC, it would be necessary to examine straightway the provisions contained therein. Section 340, upon a plain reading, would indicate that it provides for the procedure in cases mentioned in Section 195. Therefore, Section 340 CrPC cannot be read in isolation without reading and examining the provisions of Section 195. Page 1068 Section 195 of CrPC and in particular the portion that is relevant for our purposes, i.e., Section 195(1)(b)(ii) reads as under:-

(3) A complaint made under this section shall be signed,

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section, 'Court' has the same meaning as in section 195.

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6. Upon a plain reading of the two provisions, it immediately becomes clear that where the bar under Section 195(1)(b)(ii) operates, the procedure prescribed under Section 340 of the CrPC gets triggered. The question as to when the bar under Section 195 operates has been settled by the Supreme Court in the case of Iqbal Singh Marwah (supra). In that case, what had happened was that in a probate case, pending before the District Judge, Delhi, a will was set up by one of the parties seeking probate. The same was contested on the ground that the will was a forged one. In the probate proceedings, an application under Section 340 CrPC had been filed. However, that application was kept pending and no decision was arrived at on the application. During the pendency of the said probate proceedings and the said application under Section 340 CrPC, the respondents also filed a criminal complaint before the court of the Chief Metropolitan Magistrate, New Delhi for prosecution under Sections 192, 193, 463, 464, 465, 467, 469, 471, 499 & 500 IPC on the ground that the will set up by the petitioners in the probate case was a forged and fictutious document. The Metropolitan Magistrate, upon consideration of the arguments made before him, came to the conclusion that the question whether the will was a genuine document or a forged one was an issue before the District Judge in the probate proceedings where the will had been filed and, therefore, Section 195(1)(b)(i) and (ii) CrPC operated as a bar for taking cognizance of the offences. The criminal complaint was, accordingly, dismissed by the Metropolitan Magistrate. When a criminal revision against the said order came up before the Sessions Judge, he, relying upon the decision of the Supreme Court in the case of Sachida Nand Singh and Anr. v. State of Bihar Anr. 1998 (2) SCC 493, held that the bar contained in Section 195(1)(b)(ii) CrPC would not apply where the forgery of a document was committed before the said document was produced in court. Accordingly, the revision petition was allowed and the matter was remanded to the court of the Metropolitan Magistrate to proceed in accordance with law. The matter was taken up to the Delhi High Court under Section 482 CrPC, but the same was dismissed following the law laid down by the Supreme Court in the case of Sachida Nand Singh (supra). Thereafter, the matter came up before the Supreme Court. While examining the question of the bar under Section 195 CrPC, the Supreme Court observed that the main controversy revolved around the interpretation of the expression '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' occurring in clause (b) (ii) of sub-section 1 of Section 195 of the CrPC. The Supreme Court observed that there were two views possible. One view was the one that was expressed by the Supreme Court in its earlier decision in Surjit Singh and Ors. v. Balbir Singh and particularly as mentioned in paragraph 10 thereof which reads as under:-

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8. The case of Iqbal Singh Marwah (supra), therefore, lays at rest any controversy with regard to the scope and applicability of the bar contained under Section 195(1)(b)(ii) CrPC. It is clear that where the forgery is said to have been committed outside the court and before the forged document is produced in court, then the bar under Section 195(1)(b)(ii) CrPC would not operate and the Magistrate can take cognizance of a complaint filed by an aggrieved party and it would not be necessary to adopt the procedure laid down under Section 340 CrPC. In the present case, one finds that the alleged will, which is said to have been forged, was allegedly forged and fabricated prior to its institution and production before the court. Therefore, the bar under Section 195(1)(b)(ii) CrPC would not operate. If the bar does not operate, then Section 340, which merely prescribes the procedure for dealing with cases where it operates, would not come into play. Therefore, this application under Section 340 CrPC would not be maintainable. This, however, does not mean that the applicant Mr Sanjoy Chatterjee is without a remedy. It is open to him to file a complaint as the bar of Section 195 does not operate and it is open to the Magistrate to take cognizance if and when such a complaint is filed.