Appeal
Appellant filed complaint against respondents
2. The appellant had filed a complaint against the respondents alleging that the respondents had committed the offence punishable under Sections 191, 192, 196, 463, 464, 465, 467, 470 and 471 read with Section 34 of the Indian Penal Code, 1860 (for short, “IPC”).
Allegation is respondent prepared false and forged documents
3. The main allegation made by the appellant is that respondent No.2 Ramprasad Pancheshwar had prepared false and forged documents, namely, personal recognizance bond and surety bond in Criminal Case No. 19 of 2003 and the rest of the respondents conspired and actively helped respondent No.2 for forging the said documents.
Appellant alleged that documents were filed on record in a criminal case
4. It is the case of the appellant that those documents had been eventually filed on record in Criminal Case No. 19 of 2003 pending against the appellant before the Judicial Magistrate First Class, Ramtek (hereinafter referred to as the “JMFC”).
Judicial Magistrate dismissed the complaint
5. The learned Judicial Magistrate First Class vide order dated 6th November 2004 dismissed the complaint. Being aggrieved thereby, the revision petition came to be filed.
Revisional order of ADJ
6. Learned Additional Sessions Judge, Nagpur vide order dated 14th March 2005 has held that such a complaint could not have been filed except in writing of the Court concerned or some other Court, that too a subordinate one.
ADJ directed the JM to make enquiry on the application filed under section 340 CrPC
7. Learned Additional Sessions Judge, however, found that the allegations made by the revision petitioners were serious in nature, and therefore, directed that if any application is filed by the appellant under Section 340 of the Criminal Procedure Code, 1973 (for short, “Cr.P.C.”), the learned JMFC would make a suitable preliminary enquiry and thereafter, record his finding to that effect as contemplated under Section 340 of the Cr.P.C.
High Court rejected the revisional order and hence this appeal
8. The said order passed by the Revisional Court came to be challenged by the appellant before the High Court in an application filed under Section 482 of the Cr.P.C. The same came to be rejected. Hence, the present appeal.
Analysis
Question of law
15. The narrow question that requires to be considered is as to whether the embargo under Section 195 of the Cr.P.C. would be applicable when the allegation that the documents which are sought to be used as evidence were already fabricated and forged prior to filing in evidence.
Judgment analysis:
This judgment shows that only criminal court can take cognizance under section 195 Cr.P.C
16. This Court, in the case of Surjit Singh and Others v. Balbir Singh, had taken a view thus:
“10. It would thus be clear that for taking cognizance of an offence, the document, the foundation of forgery, if produced before the court or given in evidence, the bar of taking cognizance under Section 195(1)(b)(ii) gets attracted and the criminal court is prohibited from taking cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under Section 340 of the Code by or on behalf of the Court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offence covered thereunder.”
17. Subsequently, this Court, in the case of Sachida Nand Singh and Another v. State of Bihar and Another, took the view thus:
“11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.
12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records.
* * *
23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court.”
18. Finding the two conflicting views taken with regard to the interpretation of Section 195 of the Cr.P.C., the question was referred to the Constitution Bench of this Court in the case of Iqbal Singh Marwa (supra). It will be relevant to refer to paragraph 7 of the said judgment, which is as under:
“7. On a plain reading clause (b)(ii) of subsection (1) of Section 195 is capable of two interpretations. One possible interpretation is that when an offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 IPC is alleged to have been committed in respect of a document which is subsequently produced or given in evidence in a proceeding in any Court, a complaint by the Court would be necessary. The other possible interpretation is that when a document has been produced or given in evidence in a proceeding in any Court and thereafter an offence described as aforesaid is committed in respect thereof, a complaint by the Court would be necessary. On this interpretation if the offence as described in the Section is committed prior to production or giving in evidence of the document in Court, no complaint by Court would be necessary and a private complaint would be maintainable. The question which requires consideration is which of the two interpretations should be accepted having regard to the scheme of the Act and object sought to be achieved.”
Section 195(1)(b)(ii) would attract only when the document was in the custodia legis (custody of the law) and not otherwise
20. It could thus clearly be seen that this Court, on unequal terms, has held that the view taken in the case of Sachida Nand Singh (supra) that Section 195(1)(b)(ii) of the Cr.P.C. would be attracted only when the offence enumerated in the said provision was committed in respect of a document after it has been produced or filed in evidence during proceedings before any Court, i.e. during the time when the document is custodia legis. The Court has clearly held that, insofar as the Will which is alleged to have been fabricated before it was produced in the Court, the embargo created by Section 195(1)(b)(ii) of Cr.P.C. would not come into play.
21. It has been held that in such a case, the Court will be entitled to take cognizance of the offence only on the basis of the complaint made by the complainant.
22. In that view of the matter, we find that the view taken by the Revisional Court as well as the High Court is not sustainable.
23. The impugned judgment and order passed by the Revisional Court as well as the High Court are quashed and set aside.
24. The matter is remitted back forthwith to the learned JMFC, Ramtek for considering the complaint of the appellant on its own merits.
Judgments relied on
Iqbal Singh Marwa and Another v. Meenakshi Marwah and Another [(2005) 4 SCC 370],
Surjit Singh and Others v. Balbir Singh [(1996) 3 SCC 533], and
Sachida Nand Singh and Another v. State of Bihar and Another [(1998) 2 SCC 493],
Acts and Sections Involved
Indian Penal Code (IPC):
+ Sections 191 (False evidence)
+ Section 192 (Fabricating false evidence)
+ Section 196 (Issuing or signing false certificate)
+ Sections 463 (Punishment for forgery)
+ Section 464 (Forgery of valuable security, will, etc.)
+ Section 465 (Punishment for forgery)
+ Section 467 (Forgery of valuable security, will, etc.)
+ Section 470 (Punishment for forgery of valuable security, will, etc.)
+ Section 471 (Using as genuine a forged valuable security, will, etc.)
+ Section 34 (Acts done by several persons in furtherance of common intention)
Criminal Procedure Code (Cr.P.C.)
+ Section 195 (Prohibition against taking cognizance of certain offenses except on complaint)
+ Section 340 (Procedure in cases of contempt of Court)
Party
Ashok Gulabrao Bondre (appellant) versus Vilas Madhukarrao Deshmukh and others (respondents) – Criminal Appeal No. 1931 of 2011 –
APRIL 12 2023 – Hon’ble Mr. Justice B.R. Gavai and Hon’ble Mr. Justice Sanjay Karol,
Author’s note
Procedure to lodge complaint under section 340 crpc and further procedures
Under section 340(1)(c) of the Criminal Procedure Code (Cr.P.C) [section 379 of the BNSS, 2023], it states that “send it to a Magistrate of the First Class having jurisdiction”. When we read this section in conjunction with the phrase “any court” found under section 340(1) Cr.P.C, it becomes clear that if forgery occurs in a court case, the relevant court whether it is a Civil, MCOP, or District court must follow the procedures outlined in sections 340(1)(a) and (b) Cr.P.C i.e., only a public servant will then send the complaint to a Magistrate of the First Class who has jurisdiction. It is important to note that the court itself cannot take cognizance of the matter if it is not a concerned Jurisdictional Magistrate court. Suppose, the offence happened in the Jurisdictional Magistrate itself then the Bench or Magistrate clerk who is the public servant would lodge a compliant before that court (jurisdictional Magistrate) itself and the Learned JMFC can take cognizance under section 195 Cr.P.C.
