Friday, 15 April 2016

Whether magistrate can call say of accused prior to issue of process against him?

 Going   through   the   material   available   on
record,   it   appears   that   the   Magistrate   committed
an   error   when   at   the   stage   of   considering   the
private   complaint,   under   Section   200   of   Cr.P.C.,
after recording verification instead of resorting
to any of the options provided under Section 200
read with  Section 202 of Cr.P.C., the Magistrate

issued notice calling upon the accused to say as
to why he should not be prosecuted.
IN  THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.54 OF 2011
Santoshkumar Ghisulal Jaju,

       VERSUS             
 The State of Maharashtra,

              CORAM:   A.I.S. CHEEMA, J.
              DATE :   25TH JANUARY, 2016
Citation;2016 ALLMR(CRI)1283

2. Petitioner   ­   original   complainant
(hereafter   referred   as   'Complainant')   in   Misc.
Application   No.253   of   2008,   has   filed   this
Petition challenging the impugned order dated 24th
November   2010   whereby   his   complaint   came   to   be
dismissed. It is stated that the Complainant went
through   a   civil   litigation   against   one   Lahoti
which   was   fought   till   the   Hon'ble   Supreme   Court
and   the   Complainant   succeeded.   At   the   time   of
execution   of   Darkhast   for   possession,   Respondent
No.2   ­   original   accused   objected,   relying   on
electricity bill to claim that he was in adverse
possession.   Consequently   the   Complainant
collected   information   and   came   to   know   that

Respondent   No.2   got   forged   "Hami   Patra"   (i.e.
consent   letter)   purporting   it   to   be   from   his
mother (though dead) consenting to pay charges for
reconnection   of   electricity   which   had   been
disconnected.   Respondent   No.2   signed   for   his
mother, and on the basis of such document, secured
electricity bills from the electricity department
and relying on such forgery, raised objections in
the   execution   proceeding.   It   is   stated   that
complaint   was   filed   claiming   that   accused   has
forged Hami Patra and was liable to be prosecuted.
It is stated that verification of the complainant
was   recorded   and   the   Magistrate   thereafter,
instead   of   issuing   process,   adopted   a   wrong
procedure   by   passing   order   dated   2nd   September
2009 sending  notice  to the accused  as to why he
should   not   be   prosecuted   and   according   to   the
learned   counsel,   looking   to   the   procedure   as
prescribed   under   Section   200   of   the   Code   of
Criminal Procedure, 1973 (Cr.P.C.)  this could not
have been done as it was not mandate of the law,

to hear the accused before issue of process. It is
stated   that   Magistrate   took   on   record   the
objections   of   the   accused   and   later   on   wrongly
dismissed   the   complaint   ignoring   the   Judgment   in
the matter of  Iqbal Singh Marwah and another vs.
Meenakshi   Marwah   and   another,   reported   in   2005
CRI.   L.J.   2161(1).   It   is   claimed   that   the   order
passed by the Magistrate deserves to be set aside
and the process should be issued. 
3. Per   contra,   the   learned   counsel   for
Respondent   No.2   submits   that   the   alleged   forged
document   was   actually   never   produced   in   the
Regular   Darkhast   and   what   was   produced   was
electricity bill after consumption of electricity
and present complaint is not maintainable. It is
argued for Respondent No.2 – original complainant
that the order passed by the Magistrate mentioning
that no cognizance can be taken, is erroneous as
the   Magistrate   had   issued   notice   to   the   accused
and   after   hearing   the   accused,   the   order   was

passed.   According   to   the   learned   counsel,   it
amounts   to   issue   of   process   and   the   Magistrate
has, after applying mind, invoked Section 195 of
the Cr.P.C. to dismiss the complaint. According to
the   learned   counsel,   the   accused   has   signed   his
own   name   in   the  Hami   Patra  and   there   was   no
forgery.
4. In   reply,   the   learned   counsel   for
original complainant submits that the accused had
purchased the stamp in the name of dead person and
then   forged   the   document,   as   if   it   was   for   the
dead person. 
5. Going   through   the   material   available   on
record,   it   appears   that   the   Magistrate   committed
an   error   when   at   the   stage   of   considering   the
private   complaint,   under   Section   200   of   Cr.P.C.,
after recording verification instead of resorting
to any of the options provided under Section 200
read with  Section 202 of Cr.P.C., the Magistrate

issued notice calling upon the accused to say as
to why he should not be prosecuted.
6. Now,   it   is   admitted   position   in   the
course   of   submissions,   that   the   concerned  Hami
Patra  which   is   subject   matter   of   the   complaint
alleging forgery and fabricated document, was not
produced before the Executing Court. As such there
was   no   question   of   invoking   Section   195   of   the
Cr.P.C.   
7. Apart from above, even if it was assumed
that   the  Hami   Patra  was   produced   before   the
Executing   Court,   it   is   apparent   from   the   record
that the allegations were that the Hami Patra was
prepared   and   on   that   basis   electric   consumption
was   claimed   to   subsequently   put­up   the   claim   of
adverse possession. If the Judgment in the matter
of  Iqbal   Singh   Marwah  (cited   supra)   is   perused,
the observations of the Hon'ble Supreme Court in
Para 9 of the Judgment were as under:

“9. The scheme of the statutory provision may
now be examined. Broadly, Section 195, Cr.P.C.
Deals   with   three   distinct   categories   of
offences which have been described in clauses
(a),   (b)   (I)   and   (b)(ii)   and   they   relate   to
(1)   contempt   of   lawful   authority   of   public
servants, (2) offences against public justice,
and   (3)   offences   relating  to   documents   given
in   evidence.   Clause   (a)   deals   with   offences
punishable   under   Sections   172   to   188,   IPC
which  occur  in Chapter  X of the IPC and the
heading of the Chapter is – 'Of Contempts of
The   Lawful   Authority   of   Public   Servants'.
These  are  offences   which   directly  affect   the
functioning   of   or  discharge   of   lawful  duties
of a public servant. Clause (b)(i) refers to
offences in Chapter XI of IPC which is headed
as – 'Of False Evidence And Offences Against
Public   Justice'.   The   offences   mentioned   in
this   clause   clearly   relate   to   giving   or
fabricating   false  evidence   or  making   a   false
declaration   in   any   judicial   proceeding   or
before a Court of justice or before a public
servant who is bound or authorized by law to
receive   such   declaration,   and   also   to   some
other offences which have a direct correlation
with   the   proceedings   in   a   Court   of   justice
(Sections   205   and   211,   IPC).   This   being   the
scheme of two provisions or clauses of Section

195,   viz.,   that   the   offence   should   be   such
which   has   direct   bearing   or   affects   the
functioning or discharge of lawful duties of a
public   servant   or   has   a   direct   correlation
with   the   proceedings   in   a   court   of   justice,
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   a   Court”   occurring   in   clause
(b)(ii)  should   normally   mean   commission   of
such   an   offence   after   the   document   has
actually been produced or given in evidence in
the Court. The situation or contingency where
an   offence   as   enumerated   in   this   clause   has
already   been   committed   earlier   and   later   on
the   document   is   produced   or   is   given   in
evidence   in   Court,   does   not   appear   to   be   in
tune   with   clauses   (1)(i)   and   (b)(i)   and
consequently   with  the  scheme   of   Section   195,
Cr.P.C.   This   indicates   that   clause   (b)(ii)
contemplates   a   situation   where   the   offences
enumerated therein are committed with respect
to a document subsequent to its production or
giving   in   evidence   in   a   proceeding   in   any
Court.” 
          [Emphasis supplied]
 In   Para   25   of   the   Judgment   it   was

observed:
"25. In view of the discussion made above, we
are of the opinion that Sachida Nand Singh has
been   correctly   decided   and   the   view   taken
therein is the correct view. Section 195(1)(b)
(ii), Cr.P.C. would be attracted only when the
offences enumerated in the said provision have
been   committed   with   respect   to   a   document
after   it   has   been   produced   or   given   in
evidence   in   a   proceeding   in   any   Court   i.e.
during   the   time   when   the   document   was   in
custodia legis."           
 Looking to the above observations of the
Hon'ble   Supreme   Court,   Section   195   of   Cr.P.C.
Could   not   be   applied   to   a   document   which   was
earlier   allegedly   forged   or   fabricated   and
subsequently   it   was   used   in   the   Court   or   before
the authority.
8. The   trial  Court   referred   to   the   various
Rulings cited and in para 9 observed that:
“I   have   gone   through   the   above   decisions

minutely. In case No. 1 to 3 above, the facts
that the document was in custody of Court. The
document   tendered   in   the   evidence.   In   case
No.4, the document was not came within purview
of   Section   195(1)(a)   of   Cr.P.C.”   (whatever
that means).
I have not been able to understand what
the   Magistrate   wanted   to   say   to   discard   the
binding Rulings, specially of the Hon'ble Supreme
Court.
9. For the above reasons, I do not find that
the   procedure   adopted   by   the   Magistrate   while
rejecting   the   complaint   is   maintainable   or   the
reasons   recorded   for   dismissal   of   the   complaint
can be upheld.
10. Consequently,   the   order   dated   2nd
September 2009 and the subsequent order dated 24th
November 2010  passed by the Magistrate in  Misc.
Application   No.253   of   2008,   are   quashed   and   set
aside.   Considering   the   contents   of   the   complaint

and the verification below the complaint, process
is issued under Sections 193, 199, 200 and 471 of
the Indian Penal Code, 1860.
11. Rule   is   made   absolute   on   the   terms
indicated   above.   The   Criminal   Writ   Petition   is
allowed,   accordingly,   with   costs   to   be   paid   by
Respondent No.2.
                                  [A.I.S. CHEEMA, J.]

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