Gauhati High CourtMakkadas Ali Mazumdar And Anr. vs Aftab Uddin Barbhuiya And Anr. on 12 October, 2007Equivalent citations: 2008CRILJ835, 2008(1)GLT848, 2008 CRI. L. J. 835, 2008 (2) ALL LJ NOC 566, (2008) 3 GAU LR 732, (2008) 64 ALLINDCAS 289 (GAU), (2008) 3 CURCRIR 289, (2008) 1 GAU LT 848Author:I.A. AnsariBench:I.A. AnsariORDER
 

I.A. Ansari, J.1. The moot question, raised in the present revision, is this : Whether the bar in taking cognizance created bySection 195(1)(b)(ii)of the Code of Criminal Procedure (in short, 'the Code') applies only when the offence has been committed with respect to a document after the document was already produced or given in evidence in a proceeding in any Court, i.e., during the time, when the document was in custodia legis, or the bar, so created by law, applies even to a document, which was forged or alleged to be forged before the document was introduced as evidence in any proceeding in a Court.2. Before coming to the merit of the revision, it is appropriate that the material facts giving rise to this revision are taken note of. The material facts are as under:(i) The present petitioners, as plaintiffs, instituted Title Suit No. 28/2002, in the Court of the Civil Judge (Sr. Division), Hailakandi, seeking declaration of their rights, title, interest, confirmation of possessions and also prohibitory injunction restraining the defendants from disturbing possession of the plaintiffs over the suit land, the case of the plaintiffs being, in brief, thus : Late Golap Chand Bibi, mother of the defendant No. 1, was the sister of the father of the plaintiff No. 1 and plaintiff No. 2 is the wife of the plaintiff No. 1. Golap Chand Bibi executed a registered sale deed, on 23-6-1986, in favour of the plaintiff No. 1, in respect of 4 Bighas 14 Kathas of land and handed over possession of the suit property to the plaintiff No. 1 at the time of execution of the sale deed. The plaintiffs accordingly remained in use and occupation of the land so purchased by them. By an order, dated 17-7-1987, passed by the Sub-Deputy Collector, Hailakandi, in Misc. Case No. 2/87-88, the name of Golap Chand Bibi was struck off the revenue records and the land was mutated in the name of plaintiff No. 1. However, in the month of March, 2002, when the plaintiff No. 1 wanted to sell the said land, the defendant (i.e. opposite party No. 1 herein) expressed his willingness to purchase the same, but since the price offered by the defendant was too meagre and unreasonable, plaintiff No. 1 declined to sell the land to defendant No. 1, whereupon the defendant attempted to dispossess the plaintiffs by force from the said land and, hence, under compelling circumstances, the plaintiffs have instituted the suit aforementioned.(ii) The suit aforementioned was, however, dismissed, on 18-11-2005, whereupon plaintiffs preferred an appeal, which is still pending for adjudication. In the meanwhile, the defendant, i.e., opposite party No. 1 herein, has lodged a complaint, in writing, in the Court of Chief Judicial Magistrate, Hailakandi. This complaint gave rise to C.R. Case No. 610/2004, the case of the complainant being, in brief, thus. The sale deed, dated 23-6-86, aforementioned, which forms the basis of seeking declaration of title by the plaintiffs, in Title Suit No. 28/2002, was a forged document and that this document was created as a result of a conspiracy entered into by the plaintiffs, the writer of the deed, the attesting witnesses and the one, who had impersonated Golap Chand Bibi and gave thumb impressions on the said deed. The accused No. 1 is the purchaser, accused No. 4 is the writer, accused Nos. 2 and 3 are attesting witnesses, accused No. 2 being the person, who had identified the person, who had impersonated Golap Chand Bibi.(iii) By order, dated 11-4-2005, passed in C.R. Case No. 610/2004, learned Chief Judicial Magistrate, Hailakandi, issued process against the accused-petitioners and some others underSections 468/471, IPC. Aggrieved by issuance of summons, the accused-petitioners filed a petition in the learned Court below contending, inter alia, that underSections 195(1)(b)(ii)of the Code, taking of cognizance, in a complaint of present nature, was barred inasmuch as the alleged forged sale deed was a part of the evidence in the said civil suit. Having held to the effect that it is, nowhere, stated in the complaint that the accused-persons had forged the documents, in question, while the documents were in the custody of the Court, the learned Chief Judicial Magistrate concluded that there was no legal bar in taking cognizance of the offence aforementioned. Thus, the objection, raised by the accused-petitioners, was rejected on 8-3-2007. Aggrieved by the rejection of the objection raised by the accused persons, the petitioners have, now, impugned the order, dated 8-3-2007, aforementioned, in this revision.3. I have heard Mr. N. Choudhury, learned Counsel for the accused-petitioners, and Dr. B. Ahmed, learned Counsel for the plaintiff-opposite party No. 1. I have also heard Mr. K. Munir, learned Addl. Public Prosecutor, Assam, appearing on behalf of the State-Opposite Party No. 2.4. Appearing on behalf of the accused-petitioners, Mr. Choudhury submits thatSections 195(1)(b)(ii)of the Code bars the Court from taking cognizance of any offence, described inSection 463, IPC or punishable underSection 471, IPC when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court except on a complaint, in writing, of that Court or of some other Court to which that Court is subordinate. In the present case, points out Mr. Choudhury, the sale deed, in question, has been introduced in evidence in the Court of the Civil Judge (Sr. Division), Hailakandi, in the said Title Suit and, hence, when the Civil Judge (Sr. Division), Hailakandi, has not submitted any complaint alleging that any offence underSections 468or 471,IPChas been committed in respect of the said sale deed, learned Chief Judicial Magistrate was clearly in error in taking cognizance of the offences underSections 468/471, IPC and in directing issuance of processes against the petitioners.5. Controverting the submissions, made on behalf of the petitioners, Dr. Ahmed contends that the bar of taking cognizance underSection 195(1)(b)(ii)of the Code applies only when a person is alleged to have forged a document after the same has been introduced into any proceeding in any Court. In the present case, the sale deed, in question, is, according to the complainant, was forged before the same was introduced into evidence. Hence, according to Dr. Ahmed, in a case of present nature, the bar, created bySections 195(1)(b)(ii), has no application and no complaint from the Civil Judge, Hailakandi, was necessary in this regard.6. From the rival submissions noted above, it is clear that this revision petition essentially rests on the interpretation of the provisions ofSection 195of the Code. It is, therefore, necessary to take not of the provisions ofSection 195. This Section (Section 195) is, therefore, reproduced herein-below.195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance:(a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), orii) of any abetment of, or attempt to commit, such offence, or(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he administratively subordinate;(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or(ii) of any offence described in section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in Sub-clause (1) or Sub-clause (ii), except on the complaint in writing of that Court, or some other Court to which that Court is subordinate.7. The relevant provisions ofSection 195(1)(b)(i), thus, reads, "No Court shall take cognizance - (a)(i) of any offence punishable underSections 172to188(both inclusive) or theIndian Penal Code(45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he administratively subordinate; (b)(i) of any offence punishable under any of the following sections of theIndian Penal Code(45 of 1860), namely,Sections 193to196(both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court."8. In the light of the rival submissions, made before this Court on behalf of the parties, when the provisions ofSection 195of the Code are considered, what becomes transparent is that the real controversy, in the present revision, revolves around the interpretation of 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 any Court", which occurs inSection 195(1)(b)(ii).9.InSurjit Singh v. Balbir Singh, the Apex Court had held to the effect that once a document is produced or given in evidence in a Court, taking of cognizance on the basis of a private complaint of forgery having been committed in respect of such a document is completely barred. In other words, irrespective of the fact as to whether a forgery in respect of a document is committed before or after the document is introduced in evidence, the bar created bySection 195{l)(b)(ii) gets attracted.However, in a subsequent case, namely,Sachida Nand Singh v. State of Biharreported in (1998) 2 SCC 493 : 1998 Cri LJ 1565, the Apex Court took the view that the bar, contained inSection 195(1)(b)(ii), would not apply, when forgery in respect of a document was committed before the document had been produced in the Court or introduced in evidence.The relevant observations, made inSachida Nand Singh(supra), read as under (Para 5):6. In Sachida Nand Singh after analysis of the relevant provisions and noticing a number of earlier decisions (but not Surjit Singh), the Court recorded its conclusions in paras 11,12 and 23, which are being reproduced below:11. The scope of the preliminary enquiry envisaged inSection 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 inSection 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.10. The controversy, thus, raised is as to whether the bar underSection 195(1)(b)(ii)applies to cases, where forgery of a document is committed before the same is produced in the Court orSection 195(1)(b)(ii)is attracted only when such forgery is committed after the document has already been produced in the Court. This controversy has been authoritatively resolved by a Constitution Bench inIqbal Singh Marwah v. Meenakshi Marwah, wherein, concurring with the views, expressed inSachida Nand Singh (1998 Cri LJ1565) (supra), the Constitution Bench held that the bar underSection 195(1)(b)(ii)would be attracted only when the offences enumerated therein have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court, when the document was in custodia legis. The relevant observations made, in this regard, read as under (Para 25 of Cri LJ):33. 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.11.In the light of the authoritative pronouncement inIqbal Singh Marwah(supra), there can be no escape from the conclusion that when a document is forged and then produced in a Court, the complaint as regards the offence of forgery can be lodged by anyone and no formal complaint by the Court, where the forged document is filed or introduced, is necessary. A complaint by a Court is necessary only when forgery in respect of a document is committed after the document has already produced in the Court l or introduced in evidence.12.Section 190of the Code empowers a Magistrate to take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.12.1Section 195is one of the exceptions to the general provisions ofSection 190inasmuch asSection 195creates an embargo upon the Magistrate's power to take cognizance of certain specified offences. The procedure for filing of a complaint by a Court contemplated bySection 195(1)(b)(ii)is given inSection 340, Cr.P.C. This Section reads:340. Procedure in cases mentioned inSection 195.:(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) ofSection 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) bring over any person to appear and give evidence before such Magistrate.(2) The power conferred on a Court by Sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under Sub-section (1) in, respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-section (4) ofSection 195.If the provisions ofSection 340of the Code are carefully analyzed, it becomes clear that the Court is not bound to make a complaint as regards commission of an offence referred to inSection 195(1)(b)(ii), for, the Court has to be of the view that it is expedient in the interest of justice to make the complaint. The Court, inIqbal Singh Marwah (2005 Cri LJ2161) (supra), has held that the language ofSection 340shows that a Magistrate will lodge a complaint only if the interest of justice requires and not in every case.Before filing the complaint, observes the Apex Court inIqbal Singh Marwah(supra), the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offences referred to in Section I95(1)(b)(ii) and that this expediency will, normally, be judged by the Court by weighing not the magnitude of the injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, which the commission of offence may have upon administration of justice.13. In the backdrop of the position of law discussed above, when I turn to the facts of the present case, what becomes glaringly noticeable to the eyes is that in the present case, the sale deed was allegedly forged before the same was introduced into evidence in the suit. In such case, when the document was alleged to have already been forged before the same was introduced into evidence, the question of any formal complaint being lodged by the Court, wherein the alleged forged sale deed was filed, does not arise at all.14. Because of what have been discussed and pointed out above, I do not find that the impugned order, directing issuance of process against the accused persons, suffers from any infirmity, legal or factual. This revision, therefore, fails, the same is not admitted and shall accordingly stand dismissed.