Dina Nath vs Hansraj and another

Whether or not the provisions of Section 195(1)(c) of the Code of Criminal Procedure are attracted in application so as to bar a prosecution on

behalf of a complainant other than a court is the short but ticklish and simple but a debatable question which calls for determination in this revision

application. The circumstances under which the question has arisen and, the background to which the question is referable can be appreciated from

the contents of the paras which follow :

The petitioner was the defendant and the respondent the plaintiff in a suit for recovery of money in the Court of Subordinate Judge at Reasi. The

suit culminated in a decree in favour of the plaintiffs against the defendant with costs, the date of decree being 16101968.

To enable them to take out execution of the decree the decreeholders applied for a copy of the decreesheet from the Court of the SubJudge,

Reasi. The decreesheet mentioned the amount of costs as Rs. 90/. The copy of the decreesheet obtained by the decreeholders, it was alleged by

the petitioner in this revision application, was forged by the respondentsdecreeholders by making insertions in it raising the amount of cost by

another sum of Rs. 50/, as the cost incurred by the plaintiffdecreeholders in the Court of SubJudge at Udhampur. It was further alleged that after

committing the aforesaid forgery the respondentdecreeholders filed an application for execution of the said decree on 15111968 in the court of

C.J.M., Udhampur, after obtaining requisite certificates regarding the nonsatisfaction of the decree in the court of Subordinate Judge at Reasi, the

court which passed the decree. The application for execution remained pending in the court of Subordinate Judge at Udhampur upto 12121968

when the judgementdebtors, the present petitioner deposited the decretal amount.

The present complaint was filed in the court of C.J.M., Udhampur on 19121968 by the petitioner who was the judgement debtor in the execution

proceedings against the respondent, the decreeholders in the execution proceedings, under Section 466 of the Penal Code alleging that the

respondents had committed forgery by making interpolations and insertions in the copy of the decreesheet obtained by them from the court of

Subordinate Judge at Reasi and that in the execution application this inflated sum of costs was sought to be recovered on the basis of the aforesaid

forged copy of the decreesheet. The process having been issued in the aforesaid complaint against the respondent by the C.J.M., Udhampur (sic).

The accused appeared on 20111969, later the case was transferred by the C.J.M., Udhampur to the Court of SubJudge, Judicial Magistrate,

Reasi, on an application made by Badri Nath, one of the accused, with the consent of the parties.

The SubJudge, Judicial Magistrate, Reasi; thereafter proceeded with the enquiry. Evidence having been recorded the complaint reached the

stage of charge. It was at this stage that the accused respondents raised a plea in bar of the prosecution on the ground that Section 195(1)(c) of

the Code of Criminal Procedure was attracted in application and that the court could not take cognizance of the complaint, the same not having

been made by the court before whom the proceedings in the course of which the offence was committed were pending.

The trial court of SubJudge, Judicial Magistrate, Reasi, after having heard the parties on this question, allowed the plea to prevail and dismissed

the complaint holding that the same could not be taken cognizance of Section 195(1)(c) of the Code of Criminal. Procedure being the bar. The

petitioner before this court approached the Sessions Judge, Udhampur, in revision who refused to interfere with the order passed by the trial

Magistrate and dismissed the revision application. The present revision is directed against the order of the learned Sessions Judge, Udhampur,

passed in revision.

For the reasons which I assign hereafter I feel that the courts below have rightly arrived at the conclusion that Section 195(1)(c) constitutes a

bar to the complaint filed by the petitioner being taken cognizance of.

Section 195(1)(c) reads as under :

No court shall take cognizance of :

(a) ... ... ... ...

(b) ... ... ... ... (c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when

such 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 complaint in writing of such Court, or of some other Court to which such Court is subordinate.

The aforesaid provision plainly interpreted, would require the following conditions precedent for its application :

(1) The offence must be alleged to have been committed by a party to any proceeding in any court;

(2) That the offence must have been committed in respect of a document produced or given in evidence in such proceedings; and

(3) That the offence must be one described under Section 463 of the Penal Code or other Sections mentioned in the subsection itself.

There is no dispute that Section 463 of the Penal Code describes forgery as making of a false document or part of a document, with intent to

cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into

any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

Offence under Section 466, R.P.C. is only an aggravated form of forgery in relation inter alia to the records or proceedings of a court of justice.

If the remaining conditions contemplated by Section 195(1)(c) enumerated above apply admittedly an offence under Section 466 would fall within

the ambit of the said provision and a prosecution would be barred at the instance of a private individual. In so far as the second requirement

namely that such offence must be alleged to have been committed by a party to any proceeding in any court is concerned, it cannot be said that the

respondents were not a party to the execution proceedings based on a forged copy of the decreesheet. The second requirement for the application

of the said provision barring the prosecution at the instance of a private individual cannot also thus be said to be absent. Counsel for the parties

agree that if the decision regarding the existence or nonexistence of the 2nd requirement goes against the complainantpetitioner the bar contained

under Section 195(1)(c) must strictly apply.

Mr. R.P. Bakhshi, appearing on behalf of the petitioner, submitted that Section 195(1)(c) does not apply as in the circumstances of this case the

perpetration of forgery by the respondents had preceded the commencement of the execution proceedings and therefore the offence of forgery

was not committed in the course of the proceedings before the court. According to him, Section 195(1)(c) would apply only in cases in which the

commission of offences mentioned in clause (c) of SubSection (1) of Section 195, takes place in the course of proceedings before the Court. He

has further submitted that if the copy of the decreesheet had been forged much before the making of the execution application this was an offence

committed otherwise than in the course of judicial proceedings and therefore the complainant was competent to maintain a complaint against the

respondents.

I am of the opinion that the argument is not well founded and cannot prevail. The following words of the Section provide a complete answer to

the argument of Mr. R.P. Bakhshi :

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

proceedings.

The aforesaid expression occurring in the said Section would show that it is not necessary that the offence, should have been committed after

the production of the document before the Court. What the Section contemplates is .the commission of an offence in respect of a document

produced or given in evidence, in such proceedings. It does not lay down that the offence must have been committed after the production of the

document or after the document was tendered in evidence. It was, therefore, sufficient for the application of the said Section to establish that a

document in respect of which forgery was committed was produced in the course of proceedings before the Court.

Mr. Bakshi relied upon a judgement reported as AIR 1969 Guj 195 : (1969 Cri LJ 902). His Lordship, Mr. Justice N.G. Shelat in that case

observed as under :

Clause (c) of Section 195(1) is confined only to those cases where the offences mentioned in the clause are committed in respect of documents

after they are so produced or given in evidence. In other words, the offence in respect of that document already produced in the Court must have

been committed while it remained in custody of the Court. It does not refer to any offence already committed in respect of that document outside

and later on produced in Court in a proceeding between the same parties.

With respect I do not find myself in agreement with the interpretation of the learned Judge given to Section 195(1)(c). I feel that there is

nothing in the clause (1)(c) of Section 195 which would suggest that its application would be attracted only if it is alleged that the offence was

committed in the course of the proceedings. All that this Section lays down is that if a forged document is produced or given in evidence by a party

to any proceeding in any Court the bar laid down in that Section is attracted and for that purpose it is immaterial whether the forgery was

committed prior or subsequent to the initiation of the said proceedings.

In a large number of cases the Court trying a complaint of forgery may hold that the forgery has been committed but it may not be possible for

it to locate the exact stage at which the forgery was committed. In every complaint, therefore, which falls under Section 195(1)(c) the Criminal

Court may not be able to decide whether the complaint at the instance of a private individual would be cognizable by it or not. It may be possible

for the Court to give a finding only at the final stage and if the Court finds that the forgery had taken place before the production of the document

or before the tendering of the document in evidence it may be left with no option but to dismiss the complaint on the ground that bar contained in

Section 195(1)(c) was attracted. An intention therefore, which could lead to such results could not at all have been intended by the Legislature

while enacting Section 195(1)(c).

The principle behind the provision aforesaid appears to be that so long as the Court before whom the document in respect of which the forgery is

alleged to have been committed does not give its own finding in regard to the allegation of forgery it should not be made possible for another Court

to entertain a complaint at the instance of a private individual regardless or irrespective of the impressions which the Court before whom the

document was produced had formed in regard to the allegation. It really intends to obviate the possibility of two conflicting findings being recorded

by two Courts one before which the document was produced in the course of the proceedings and the other trying the complaint of forgery. If this

was the object there would be no reasonable and rational distinction between a case where the commission of offence of forgery has taken place

during the course of the proceedings and a case where the forgery has been committed before the commencement of the proceedings and the

production of the document, because in either case the Court before which the document is produced shall have to be called upon to say

something regarding the principal proceedings before it or at any subsequent stage where an application is made before it for initiating proceedings

under Section 466 of the Code of Criminal Procedure. This aspect of the matter does not appear to have been considered by his Lordship Mr.

Justice N.G. Shelat of the Gujarat High Court in the case referred to above.

Another authority cited by Mr. Bakshi in support of his contention is reported as AIR 1971 SC 1708 : (1971 Cri LJ 1266). In this case the

accused was charged with offences under Sections 167, 466 and 471 of the Penal Code and an order of commitment was passed by the

Magistrate against him. The accused sought the quashing of the orders of commitment on various grounds before the High Court; one of them

being that the provisions of Section 195(1)(c) barred such a prosecution. It appears that the High Court of Patna after a careful consideration

came to the conclusion that the bar contained in Section 195 did not apply to an offence under Section 167 as the same was not mentioned in

Section 195(1)(c). So far as the offence under Section 466 was concerned, it was admitted before the Supreme Court by the counsel for the

parties that Section 466 of the Penal Code is not covered by clause (b) or clause (c) of Section 195 of the Code and that therefore that section did

not operate as a bar in respect of that offence.

It is true that their Lordships of the Supreme Court on the basis of concessions made before them accepted the position that Section 466 of

the Penal Code not having been mentioned specifically in Section 195(1)(c) the bar contained would not apply but the concessions and the

admissions made by the parties before their Lordships of the Supreme Court was based, it appears to my mind, on misapprehension of the words

described in Section 463."" The offence described under Section 463 is the offence of forgery. This offence of forgery is punishable by Sections

465, 466, 467, 468 and 469 according to the degree of gravity of the offence. Simple forgery is punishable under Section 465 with imprisonment

which may extend to one year or with fine or with both. Forgery in respect of record or proceeding of or in a Court of Justice, or a register of

birth, etc. is punishable under Section 466 with imprisonment of either description which may extend to seven years. Forgery in respect of valuable

security or a will, or an authority to adopt a son, etc. etc. is punishable under Section 467 with imprisonment for life, or with imprisonment of either

description for a term which may extend to ten years. Forgery for purpose of harming human reputation is punishable under Section 469. When

Section 195(1)(c) refers to an offence the description of which is given in S. 463, it really refers to all the offences of simple forgery or forgery in

an aggravated form which are made punishable by the aforesaid sections of the Penal Code. The fact that Section 466 of the Penal Code is not

specifically mentioned in Section 195(1)(c) therefore would not make Section 466 of the Penal Code fall outside the ambit of the bar contained

under Section 195(1)(c).

There is no dispute with the proposition that the law declared by their Lordships of the Supreme Court is the law binding on all the Courts in

the country but the question is whether in such a case it can be said that the law has been declared by the Supreme Court. It is pertinent to note

that in para 15 of the judgement at page 1711 their Lordships of the Supreme Court dealt with the two offences namely 167 and 466 distinctly. In

respect of Section 167 of the Penal Code their Lordships after considering the question, expressed complete agreement with the view taken by the

High Court that Section 195(1)(b) or (c) is no bar to the Magistrate taking cognizance of an offence under Section 167, But so far as the offence

under Sec. 466 is concerned their Lordships did not consider the question but only accepted the admissions made before them By the parties, that

Section 466 of the Penal Code not covered by (1) (b) or (c) of Sec. 195.

In order to clearly appreciate and amplify the position para 15 of the judgement of their Lordships of the Supreme Court in Govind Mehta v.

The State of Bihar, reported as AIR 1971 SC 1708 : (1971 Cri LJ 3266) is reproduced below :

The High Court after a careful analysis of the allegations made in the complaint and the material placed before it and after a very elaborate

consideration of the matter has come to the conclusion that on the case of the prosecution the charge framed under Section 167 of the Penal Code,

is justified. The High Court has considered the ingredients of the offence under Sections 192 and 193 as well as Section 167 of the Penal Code :

As the charge has been framed under Sec. 167, the bar under Section 195(1)(b) or (c) of the Code has no application. We agree with the view of

the High Court that Section 195(1)(b) or (c) is no bar to the Magistrate taking cognisance for an offence under Section 167. The offence under

Section 466 of the Penal Code is, admittedly, not covered by clause (b) or clause (c) of Section 195(1) of the Code. Therefore, that section does

not operate as a bar in respect of this offence.

Under these circumstances, therefore the judgement of their Lordships of the Supreme Court does not apply to the facts of the present case.

So far as the binding effect of their Lordships judgement of the Supreme Court is concerned a reference may with advantage be made to the case.

State of West Bengal v. Corpn. of Calcutta reported as AIR 1967 SC 997 : (1967 Cri LJ 950). Dealing with the question as to whether a

judgement on the basis of a concession amount to laying down the law by the Privy Council. K. Subba Rao, C.J. speaking for the majority

observed at page 1004 as follows :

''The decision made on a concession made by the parties even though the principle conceded was accepted by the Privy Council without

discussion, cannot be given the same value as one given upon a careful consideration of the pros and cons of the question raised. Further, no

argument was raised before the Privy Council that the Common Law of England had legal force only in the said three Presidency towns and not in

the rest of the country, for that case happened to be one that arose in the City of Bombay. The observations of the Privy Council that the principles

obtaining in England also governed the Crown in India are rather wide. Nor any argument was raised before the Privy Council making a distinction

between substantive branches of Common, Law and mere rules of construction. It is not possible to predicate what the Privy Council would have

said if that distinction had been placed before it. Be that as it may, this decision cannot be taken as finally deciding the question that is raised before

us.

The aforesaid observations of the Supreme Court do not leave any doubt in my mind that the declaration spoken about in Article 141 of the

Constitution of India is the declaration which the Hon'ble Supreme Court makes after consideration of the question and not by accepting the

position on the basis of concession.

Mr. Bakshi then relied upon a Division Bench Judgement of the Calcutta High Court reported as AIR 1930 Cal 278 : (31 Cri LJ 1205). The

view taken by the Calcutta High Court in the aforesaid judgement also is consistent with the observations of his Lordship Mr. Justice N.G. Shelat,

reported as AIR 1969 Guj 195 : (1969 Cri LJ 902) with which I have ventured to differ for the reasons already given.

I borrow support for my view from a judgement of the Allahabad High Court in Jia Lal v. State of U.P. reported as AIR 1967 All 420 : (1967

Cri LJ 1121). In this case the accused was charged with offences under Ss. 120B, 193, 196, 467, 471, 420 and 511 read with Section 109,

I.P.C. Even when Section 467 does not find mention in Cl. (c) of SubSection (1) of Section 195 it was held that a complaint instituted by the

Court after taking proceedings under Section 476 of the Criminal Procedure Code was legally valid and maintainable. Dealing with the question in

para. 9 of the judgement the Court observed as follows :

In order to arrive at the proper, conclusion it is necessary to consider certain Sections of the Indian Penal Code and the Code of Criminal

Procedure. Section 195(1)(b), Criminal P.C. provides that no Court shall take cognizance of any offence punishable under Sections 193, 194,

195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to any

proceeding in any Court, except on the complaint in writing of such Court. SubSection (1)(c) of Section 195 further provides that a Court shall not

take cognizance of any offence described in Section 463 or punishable under Sections 471, 475 and 476, I.P.C. (i.e. offences relating to

production of forged document in evidence) except on complaint in writing of such Court. It is noteworthy that Section 195(1)(b). Criminal P.C.

contemplates the commission of enumerated offences both ""in or in relation to any proceeding in any Court"". In the instant case the ijazatnamas

Exhibits Kha1 and 2 had been actually filed and proved by the evidence of defence witnesses in the then legal proceeding pending in the Court of

the Judicial Magistrate Jalesar and, therefore, the said Magistrate was competent to lodge a complaint against the seven opposite parties inter alia

under Ss. 193, 196 and 471, I.P.C. which clearly fall within the ambit of Section 195 (1)(b) and (c), Criminal P.C.

This view is further reinforced from another judgement of the Allahabad High Court in Har Prasad v. Mans Ram reported as AIR 1966 All

124 : (1966 Cri LJ 244). The Court while dealing with the question of applicability of Sec. 195(1)(c) of the Code of Criminal Procedure, in para

11 of the judgement observed as under :

It will be noticed that the words used in this subsection are ""in respect of a document produced or given in evidence in such proceeding............

which indicate that the intention of the legislature was not to circumscribe the offences described in it only when they are committed when the

proceedings are pending in Court but also to include them within the ambit of the Section, even if they had been committed anterior to it and the

fruit of that offence has been relied upon in those proceedings. In other words, the words ""in respect of"" are wide enough to include even a

document which was prepared before the proceedings started in a Court of law but was produced or given in evidence in that proceeding. In this

view of the matter, I am of opinion that although the document in question was fabricated before the proceedings started in Court and although two

of the opposite parties were not impleaded in the mutation proceeding before the Tahsildar, it must be held that the cognizance of the offence was

barred by Section 195(1)(c) of the Code.

Further support in this view is available from yet another judgement of the Allahabad High Court reported as AIR 1969 All 189 : (1969 Cri LJ

460). Dealing with the similar question in para 6 of the judgement the Court held :

On behalf of the State it was, however, contended that as the offence of forgery as described in Section 463, I.P.C. was committed prior to the

applicant becoming a party to the aforesaid proceeding in the Court of the Compensation Officer, Section 195(1)(c) had no application to this

case. I do not agree, for the simple reason that there is nothing in this section to warrant such an interpretation. All that that section lays down is

that if a forged document is produced or given in evidence by a party to any proceeding in any Court the bar laid down in that section is attracted

and for that purpose it is immaterial whether the forgery was committed prior or subsequent to the initiation of the said proceeding. Thus on the

plain terms of the section I am satisfied that the first contention of the applicant's learned counsel is correct.

On a consideration of the provisions of the section and the views expressed by various High Courts I am of the opinion that it is not necessary

that the forgery should have been committed during the pendency of the proceedings before the Court, for the application of the bar contained in

Section 195(1)(c) of the Code. I am of the opinion that the offence described in Section 463 is the offence of forgery and as such regardless of the

particular section under which it is made punishable it falls within the ambit of Section 195(1)(c) and a complaint even for an offence punishable

under Section 466 is also barred at the instance of a private individual if the offence has been committed in respect of a document tendered by a

party to the proceedings before the Court. The complaint filed by the petitioner in this case could not be therefore taken cognizance of by the

Court. The only option available to the petitioner was to move the Court of C.J.M. Udhampur for initiating proceedings under Section 476 and for

ultimately instituting a complaint for an offence under Section 466.

Mr. Bakshi submitted that in case this Court upholds the orders of the courts below the complaint may be treated as a petition for moving the

Court to initiate the proceedings against the respondent, I think that would not be a proper order because a petition under Section 476 for making

a motion to institute a complaint is expected to contain facts different from those contained in the complaint. A refusal of the prayer will not entail

any hardship to the petitioner but the acceptance thereof will unnecessarily result in a confusion both for the petitioner and for the Court by whom

the proceedings are to be initiated. It is open to the petitioner to make a petition in a proper forum for initiating proceedings against the respondents

and if the Court after a careful consideration of the facts and circumstances of the case decides to institute a complaint it can do so.

For the foregoing reasons this revision application is dismissed and the rule is discharged.