Ashok Kumar and ors. vs State of Haryana and anr.

K.P.S. Sandhu, J.

This petition under Section 482, Criminal Procedure Code, has been filed by Ashok Kumar, Subhash Chand and Rattan Lal praying therein that the order pased by the Judicial Magistrate, Ist Class, Faridabad, dated 29th October, 1984, and the proceedings before the said Judicial Magistrate, which have culminated from a police challan and a private complaint for offences under Section 468, and 420, Indian Penal Code, be quashed.

The facts which gave rise to this petition are as follows.

Petitioner No. 1, Ashok Kumar, was being tried for an offence under Section 302, Indian Penal Code, in the Court of Sessions Judge, Delhi, for the murder of one Suresh son of Sain Dass Kaushal, and his wife, Smt. Kusum Lata. During the commitment proceedings before Shri N.K. Jain, Judicial Magistrate, Gurgaon, petitioner No. 1 allegedly filed birth certificate issued by the Faridabad Complex authority regarding his age and on the basis of the said certificate, petitioner No. 1 contended before the Judicial Magistrate, that at the time of the alleged commission of the offence under Section 302, Indian Penal Code, he was a child and thus claimed the benefit under the East Punjab Children Act, 1949. Sain Dass Kaushal lodged first information report with the Police alleging therein that the certificate produce by petitioner No. 1 in the Court of the Judicial Magistrate, Gurgaon, was a forged one. A case was registered against petitioner No. 1 under Section 468, read with Section 420, Indian Penal Code. However, Sain Dass filed a complaint against three petitioners under Section 466 read with Section 471, Indian Penal Code. Ultimately, the challan and the complaint were clubbed together and the proceedings were started in the Court of Judicial Magistrate Ist Class, Faridabad. The learned trial Magistrate proceeded to frame the charge. However, the petitioners filed an application before the Magistrate alleging therein that in view of the provisions of Section 195 read with section 340, Criminal Procedure Code, since it was not a complaint in writing as envisaged by Section 195 (1)(b), no proceedings before the Magistrate were competent. However, the trial, Magistrate came to a finding that since the alleged forged certificate was used at the time the bail application of petitioner No. 1 was filed, the Magistrate, in the bail proceedings, did not act as a Court. Consequently, Section 195 (1) Criminal Procedure Code, was not applicable to the proceedings. Hence this petition under Section 482, Criminal Procedure Code.

The sole contention raised by Mr. Behl, learned counsel for the petitioners, is that the view taken by the Magistrate that the bail proceedings are not judicial proceedings, and that the Magistrate does not act as a Court is erroneous. He placed reliance on a Supreme Court judgment in Kamalapati Trivedi v. The State of West Bengal, AIR 1979 SC 679, wherein their Lordship were pleased to hold :

"An order of bail passed by a magistrate also decides the rights of the State and the accused and is made by the Magistrate after the application of his mind and therefore in the discharge of his judicial duties, which factor constitutes it an act of a Court."

Undoubtedly, in view of this authority, the reason given by the trial Magistrate for declining the request of the petitioners is not sound, but on the other hand, Mr. Amar, learned counsel for the State, has placed reliance on a recent DB authority of this Court reported in Karnail Singh and another v. The State of Punjab, 1983(1) Recent Criminal Report 38; 1983(1) Chandigarh Law Reporter 199 , wherein their Lordships were pleased to hold :

"Now the core of the question herein is whether the aforesaid provision includes within its ambit the forgery of a document committed much earlier which may later come to be produced in Court. A close analysis of the provisions would indicate that this indeed may not be so. Though the language used is somewhat vide, it would appear that it pertains to the cognizance of an offence when the same is committed and is not merely rested on the factum of the production of a document in a court of law. To make a sharp distinction, clause (ii) is applicable and confined to the commission of forgery of a document already produced in court and does not extend to the commission of forgery of a document much earlier which may subsequently come to be produced and given in evidence in a proceeding in any court. In essence, this provision comes into play only when such a forgery is committed qua a document is custodia legis. It is only, this after the commission of an offence takes place during the course of the proceedings in any court or to put it in physical terms, it is committed within the four walls of the Court either by forging an existing document therein or fabricating the same, that clause (ii) would be attracted. In such a situation alone, the law creates a bar that the cognizance of the offence can be taken only at the instance of a court in the precincts whereof the offence has been committed."

Admittedly, in the case in hand, the certificate was allegedly forged before it was produced in the Court. Thereof, in view of judgment in Karnail Singh''s case (supra) the provisions of Section 195(1)(b) Criminal Procedure Code, would not be attracted.

Consequently, this petition fails without being any merit.

The parties, through their counsel, are directed to appear before the trial Magistrate on 5th August, 1985.