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, Vs 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.]
Print Page
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, Vs 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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