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"On principle as also on the sound canons of construction, it is apt to confine section 195(1)(b)(ii) of the Code to forgeries committed in respect of a document during its custody by the court or its fabrication in the course of the proceedings itself."

In para 11 of this case the Division Bench observed:--

"In view of the wholly settled state of law declared by the Supreme Court under section 195(1)(c) of the old Code, all that now remains is to examine the marginal change in the language of section 195(1)(b)(ii) of the Code by deleting the words "by a party to any proceeding in any Court." There is no indication that in doing so, whilst enacting the new Code, Parliament intended to make any radical change or departure from the settled law earlier. It is well settled that the legislature is presumed to know the existing state of law when making a change or amendment in the statute. The Statement of Objects and Reasons and the detailed notes on clauses of the Cr. P.C. 1973, give no indication of materially altering or overriding the earlier precedential construction of the predecessor provision. It, therefore, seems inapt to read more into the marginal change than the plain words thereof would indicate. To my mind the deletion of the words 'by a party to any proceeding in any court' in section 195(1)(b)(ii) of the Code has only the effect of enlarging the protection envisaged by the section to the witnesses, scribes, attestors, etc., of the document with regard to which the offence has been committed. This class of persons would now be equally within the ambit of the provision irrespective of the fact whether they are parties to the proceedings or not. Apart from this, I am unable to read any other meaningful change brought in the law in this context. All other considerations, authoritatively noticed in the precedents referred to above with regard to the larger principles of interpretation, the aptness of the narrower construction, the other provisions of the Code including section 476, etc., remain as much applicable and relevant to section 195(1)(b)(ii) of the Code as they were to its predecessor provision. Consequently, the binding precedent applicable to the earlier provisions of section 195(1)(c) of the old Code would be equally attracted in the case of the present provision subject to the marginal change noticed above."

13. In case of wider view, there is a scope for misuse of the provision also. Suppose 'A' fabricates a document. After that he files a suit against 'B' representing that the document is to be used for some collateral purpose in that suit. 'B' challenges the document describing it as a forgery and b fabrication. 'A' later on withdraws the suit or permits it to be dismissed for default. Can it be said that 'B' has no remedy by way of prosecution for the forgery of the document against him, except for applying to the civil court under S. 340 of the new Code for making enquiry and then making a complaint under section 195 of the new Code. Alternatively even if the case filed by 'A' was decided by the civil court on merits, but when the proceedings are going on, 'B' did not have material in his possession to prove that the document was forged or for some reason could not produce that in that court, where the civil suit was proceeding, should it be taken that 'B' will have no remedy except approaching the court in which the document was earlier produced for making a complaint and leading that evidence, which he later on discovered and has in his possession. This would mean an enquiry independent of the record of the case on a new and fresh material and such a procedure was not favoured in Patel's case (1971 Cri LJ 1437) (SC). The forgerer may even prolong the proceedings in a civil court. Such instances can be multiplied. Thus the wider view of section 195(1)(b)(iii) is likely to frustrate or even defeat the interest of justice.

With respect to the learned Judges deciding the case I may say that the observations in para 7 in Patel's case (1971 Cri LJ 1437) (SC) were not pointedly brought to their notice as well as the approval of Kushal Pal Singh's case (1931-32 Cri LJ 1105) (All) (FB) and Ali Bin Rajak's case (ILR (1967) Guj 1091) (supra).

17. The learned Judge making the reference had, in spite of Karnail Singh's case (1983 Cri LJ 713) (Punj and Har), doubts about the powers of the police to investigate the case of forgery of document when once a document, irrespective of the date of its forgery, was produced or given in evidence in court. The matter regarding the investigation by the police is dealt with in Karnail Singh's case and before us no meaningful arguments were raised to contest the correctness of that judgment on that ground. In the light of the view I have taken regarding the right of the party to file criminal proceedings about the forged document not falling within the ambit of section 195(1)(b)(ii), the police will have undisputed right of investigation in case its machinery is set in motion.