Saturday 27 October 2012

bar contained in Section 195(1)(b)(ii) of the Code is not applicable to case where forgery of the document was committed before the document was produced in a Court.

When forgery was committed before the document was produced in a court the bar under S.195(1)(b) had no application.Offences covered by S.195 must involve acts affecting the administration of justice

PETITIONER:
SACHIDA NAND SINGH v STATE OF BIHAR 



DATE OF JUDGMENT: 03/02/1998


BENCH:
K.T. THOMAS, M. SRINIVASAN
CITATION;1998 (1)JT370
1998 AIR 1121, 1998( 1  )SCR 492, 1998( 2 ) 




     J U D G M E N T
Thomas, J.
     Can prosecution  be maintained  in respect of a forged
document produced  in court  unless complaint has been filed
by the court concerned in that behalf? In other words, the
question involved in this appeal is, whether the prohibition
contained in  Section 1951(1)(b)(ii) of the Code of Criminal
Procedure, 1973 (for short  `the Code) would apply to such
prosecution. The  aforesaid question, ticklish it may appear
to some extent, seemed to have received a quietus from this
Court with the pronouncement in Patel Laliibhai Somabha vs.
The State  of Gujarat  (AIR 1971  SC 1935) while considering
the scope  of its corresponding provision in the old Code of
Criminal Procedure  1989. But  a subsequent decision of this
Court in Gopalakrishna Menon & anr. vs. D.Raja Reddy & anr.,
[1983(4)SCC 240]  which struck a  different  note  thereon
seemed to  have revived the issue and kept it buoying up in
the legal  stream. That question, in this appeal, has arisen
from the following facts:
     A complaint  was filed by second respondent (Lal Narain
Singh) in the court of a Chief Judicial Magistrate, alleging
offences, inter alia, under Sections 468, 469 and 471 of the
Indian Penal  Code on the facts that appellants had forged a
document (certified  copy of  Jamabandi -  Rent  Roll) and
produced it  in a  court of  Executive Magistrate  which was
then dealing with proceedings under Section 145 of the Code.
Chief Judicial Magistrate forwarded  the complaint  to the
police as  provided in Section 156(3) of the Code. Police
registered an  FIR on  the basis  of the  said complaint and
after investigation  laid a  charge-sheet against appellants
for those  offences.  The  Chief  Judicial  Magistrate took
cognizance of  those offences  and  issued  process  to the
accused.  Appellants  then  moved  Patna  High Court  under
Section 482  of the Code for quashing the prosecution on the
main  ground  that  the Magistrate  could  not have  taken
cognizance of the said offences in view of the bar contained
in Section 195(1)(b)(ii) of the Code.
     Before the High Court, appellants sited the decision of
the Court  in Gopala  Krishna Menon  (supra) b ut a  single
judge of  the High  Court dismissed  the said petition filed
under Section  482 b  y relying on a later decision of this
Court in  Mahadev Bapuji  Mahajan  and anr.  vs.  State  of
Maharashtra (AIR  1994 SC 1549). Appellants therefore, filed
this appeal by special leave.
     Shri K.B. Sinha, learned senior counsel contended that
though the  decision in Patel Laljibhai  Somabhai  vs. The
State of Gujarat (supra) was rendered by a three judge Bench
of this Court it is no longer relevant as the said decision
was rendered  under the corresponding provision  of the old
Code which has a subtle difference from the new provision in
Section 195(1)(b)(ii)  of the Code and that difference makes
all the change. According to the learned senior counsel, the
ratio laid  down by  this Court in Gopalakrishna Menon would
hold the  field since  that decision  was rendered under the
new Code.
     Shri  B.B.Singh, learned counsel   for the   first
respondent (State  of Bihar), on the other hand, argued that
the slight  change made in Section 195(1)(b)(ii) of the Code
vis-a-vis the  corresponding provision in the old Code was
not for deviating from the legal position settled b y this
Court in  Patel Laljibhai  Somabhai (supra). Learned counsel
has  highlighted   the consequences  of  adopting  a  wider
construction as to the scope of Section 195(1)(b)(ii) of the
Code. For  deciding the issue it  is appropriate to extract
here the material portion of the said clause here:
     We Court shall take cognizance-
     Even if  the clause is capable of two interpretation we
are inclined  to  choose  the  narrower interpretation for
obvious reasons.  Section 190  of  the Code  empowers "any
magistrate of  the first  class" to  take cognizance of "any
offence" upon  receiving a  complaint, or  police report  or
information or upon his own knowledge. Section 195 restricts
such general powers of the magistrate, and the general right
of a  person to move the  Court with a complaint is to that
extent curtailed.   It is   a well-recognised   canon  of
interpretation that provision   curbing   the   general
jurisdiction of the  court  must  normally  receive  strict
interpretation unless  the statute  or the  context requires
otherwise [Abdul Waheed Khan vs. Bhawani (1996 (3) SCR 617].
     That  apart   it  is  difficult  to  interpret  Section
195(1)(b)(ii) as  containing a b ar  against initiation  of
prosecution  proceedings   merely     because  the  document
concerned was  produced in a court albeit the act of forgery
was perpetrated prior to  its production  in the court. Any
such construction is likely to ensue unsavoury consequences.
For instance,  if rank forgery of  a valuable document  is
detected an  the forgery is sure that he would imminently be
embroiled in  prosecution proceedings he can simply get that
document produced  in any  long drawn  litigation which was
either instituted  by himself  or some body else who can be
influenced by  him and thereby pre-empt the prosecution for
the entire long period of pendency of that litigation. It is
a settled  proposition that if the language of a legislation
is capable of more than one interpretation, the one which is
capable of   causing  mischievous  consequences  should  be
averted. Quoting from Gill vs. Donald Humberstone & Co. Ltd.
(1963-1-W.L.R.929)  Maxwell   has  stated  in  his  treaties
(Interpretation of  Statutes, 12th  Edn. Page  105) that "if
the language  is capable  of more than one interpretation we
ought to  discard the  more natural  meaning if it leads to
unreasonable result  and   adopt that  interpretation  which
leads to  a reasonable practicable result". The clause which
we are now considering contains enough  indication to show
that the  more natural meaning is that which leans in favour
of  a strict construction, and  hence   the   aforesaid
observation is eminently applicable here.
     As Section 340(1) of  the Code  has an inter-link with
Section 195(1)(b)  it is  necessary to refer to  that sub-
section in  the present context. The said sub-section reads
as follows:
     "When upon an application made to
     it in this behalf or otherwise, any
     Court   is of  opinion that  it  is
     expedient in   the   interest   of
     justice that  an inquiry  should be
     made into any offence  referred to
     in clause (b) of sub-section(1) of
     section 195,  which appears to have
     been committed in or in relation to
     a proceeding  in that  Court or, as
     the case  may be, in respect  of a
     document  produced  or  given   in
     evidence in  a proceeding in  that
     Court, such  Court may,  after such
     preliminary inquiry,  if any, as it
     thinks necessary,-
     (a)  record   a  finding to  that
     effect;
     (b) make  a  complaint  thereof  in
     writing;
     (c) send  it to a Magistrate of the
     first class having jurisdiction;
     (d) take  sufficient  security  for
     the  appearance   of  the accused
     before such  Magistrate, or  if the
     alleged offence is non-bailable and
     the Court thinks it necessary so to
     do, send  the accused in custody to
     such Magistrate; and
     (e) bind  over any person to appear
     and  give evidence  before   such
     Magistrate."
     The sub-section  puts the condition  that before the
Court makes  a complaint  of "any  offence  referred  to  in
clause (b)  of Section 195(1)" the  Court has to follow the
procedure laid down in Section 340.  In  other  words,  no
complaint can  be made by a  court  regarding any  offence
falling within the ambit  of Section  195(1)(b) of the Code
without first  adopting those  procedural requirements. It h
as to be noted that Section 340 falls within Chapter XXVI of
the Code  which contains  a fasciculus of "Provisions as to
offences affecting  the administration of justice"  as the
title of  the Chapter  appellates. So the offences envisaged
in Section  195(1)(b) of  the Code  must involve  acts which
would have affected the administration of justice.
     The scope of  the preliminary  enquiry  envisaged  in
Section 340(1) of the Code is to  ascertain whether any
offence affecting   administration  of  justice  ha 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.
     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 on affecting administration
of justice  merely because  that document  later reached the
Court records.
     The three Judges Bench of this Court in Patel Laljibhai
Somabhai's case (supra) has  interpreted the  corresponding
section in  the old  Code, [Section 195(1)(c)] in almost the
same manner  as indicated  above. It is advantageous in this
context to  extract clause  (c) of Section 195(1) of the old
Code.
     "No Court shall take cognizance-
     of any offence described in section
     463  or  punishable  under section
     471, section  475 or section 476 of
     the same Coda, when each offence is
     alleged to have been committed by a
     party  to any  proceeding in  any
     Court  in respect of  a document
     produced or  given in  evidence  in
     such  proceeding except on   the
     complain in  writing of such Court,
     or of  some other Court  to  which
     such   Court    is   subordinate."
     (underline supplied)
     The issue involved in  Patel Laljibhai Somabhai's case
related to  the applicability  of that sub-section to a case
where forged  document was  produced in a suit by a  party
thereto, and subsequently a prosecution was launched against
him for offences under Section 467 and 471 of IPC through a
private complain.  The ratio  of the decision therein is the
following:
     "The offences about which the court
     alone,  to the  exclusion of  the
     aggrieve private   parties,   is
     clothed with  the right to complain
     may,  therefore,  be  appropriately
     considered  to   be   only   those
     offences committed by a party to a
     proceeding in   that  court,   the
     commission  of which has    a
     reasonable close nexus  with  the
     proceedings in the court so that it
     can,  without  embarking  upon    a
     completely independent  and  fresh
     inquiry, satisfactorily consider by
     reference principally to   its
     records the expediency    of
     prosecuting the  delinquent  party.
     It, therefore,  appears to us to be
     more  appropriate to  adopt   the
     strict  construction  of  confining
     the  prohibition  contained  in  s.
     195(c) only  to hose cases in which
     the  offences   specified therein
     committed by   a party t   the
     proceeding in the character as such
     party."
     After stating  so their  Lordships proceeded to observe
that the  legislature could  not have intended to extend the
prohibition in the sub-section to offences  committed by a
party to the proceedings prior to his becoming such a party.
According to  their Lordships, any  construction    to the
contrary would unreasonably restrict  the right of a person
which was recognized in Section 190 of the  Code.
     The aforesaid legal position was followed by this Court
in   Raghunath &  ors. vs.  State of   U.P & ors, 1973(1)SCC
564. Mohan  Lal &  ors. vs.  The State of Rajasthan & ors.,
1974(3) SCC  628, and  Legal Remembrance  of Govt,  of West
Bengal vs. Haridas Mundra, 1976(2) SCR 933.
     But in  Gopalakrishna Menon  & ors. vs. D. Raja Reddy &
ors. (supra)  Desai. J.and  R.N.Misra, J.(as  he than was) h
ave found  that a  persecution initiated  on the  basis of a
private complaint,  in the absence of any complaint from the
appropriate civil  court (before  which the  alleged  forged
receipt was produced) was whether offences under section 461
and 471 of IPC are also offences described in Section 463 of
IPC falling within the ambit of Section 195(1)(b)(ii) of the
Code.
     Of course in the end of that decision it was mentioned
that prosecution on the basis of a private complaint, in the
absence of  a complaint from appropriate civil court, is not
sustainable. Learned  Judge made  reference to the decisions
in Patel  Laljibhai Somabhai  (cited supra)  and Goswami vs.
High Court  of M.P.,  1979(1) SCC 373, and observed that the
ratio in  those decisions  support the view taken b y them.
The forgery  alleged in Goswami's case took place during the
period when  the document  in question was in the custody of
the court   and in such  a case  t  he bar  under  Section
195(1)(b)(ii)  would   certainly  apply.   But, with  great
respect, we  are unable to agree that the ratio in Laljibhai
Somabhai   would   support   the   conclusion reached  in
Gopalakrishna Menon's case (supra).
     Shri K.B. Sinha learned  senor counsel  contended that
the  position which  held  the  field pursuant  to  Patel
Laljibhai Somabhai's  case decision  has since been changed
with the enactment of the new Code because of absence of the
words ("by  a party  to any  proceeding in  an y  court") in
Section 195(1)(b)(ii) of the Code. On the other hand learned
counsel for  the respondents  contended that the only object
for deletion of those words was to advance the protection of
the section to other persons as well who might not have been
parties to the litigation.
     A scrutiny of the sub clause in juxtaposition with the
corresponding  provision  in  old  Code dissuades  us from
attaching any significance to the deletion of the words ("by
a party to any proceeding in any court")  except  to the
extent that  the  deletion  was  intended  to stretch the
advantage to non-parties to the proceedings as well.
     The Law  Commission in  its 41st Report has observed in
paragraph 15.93 as follows:
     "15.39   The purpose of the section
     is to  b  ar  private  prosecutions
     where  the course of  justice  is
     sought to be perverted  leaving to
     the  court itself to  uphold  its
     dignity and  prestige. On principle
     there  is no   reason   why   the
     safeguard in  clause (c) should not
     apply  to offences  committed  by
     witnesses also.  Witnesses need  as
     much protection  against  vexatious
     prosecutions  as  parties and  the
     court should  have as  much control
     over the  acts  of witnesses  that
     enter as  a component of a judicial
     proceeding, as  over  the acts  of
     parties. If,    therefore,    the
     provisions of   clause   (c)   are
     extended to    witnesses,    the
     extension would  be  in  conformity
     with  the broad principle  which
     forms the basis of S. 195."
     The  above  reasons  of the  Law   Commission  which
eventually led to the parliamentary exercise in deleting the
words referred to earlier  would unmistakably point to the
legislative object in doing so.
     The same  issue came  up before  a Full  Bench  of the
Punjab and  Haryana High Court, particularly in the light of
change made  in Section 195(1)(b)(ii) of the Code vis-a-vis
the corresponding  provision in the old  Code. In  Harbans
Singh and  others   vs. State of Punjab - [AIR 1987 Punjab &
Haryana 19],  the Full Bench observed that deletion of those
words would not help to take a wider view as the restrictive
view is more in  consonance with the scheme of the Code. We
have notice  that Karnataka  High Court in Govindaraju vs.
State of  Karnataka [1995  Crl.L.J.1491] and the Bombay High
Court in  Alka Bhagwant Jadhav vs. State of Maharashtra [ILR
1986 (Bombay) 64] have also adopted the same view.
     The sequitur  of the  above discussion  is that the bar
contained in  Section  195(1)(b)(ii)  of  the  Code  is not
applicable  to case  where  forgery  of  the  document was
committed before  the document was  produced  in  a  Court.
Accordingly we dismiss this appeal.

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