Durga Prasad Singh and Others vs State of U.P. and Others

V.N. Misra, J.—This is a petition u/s 482, Code of Criminal Procedure to get proceedings in Criminal Case No. 268 of 1978 pending in the court of Special Judicial Magistrate, Basti quashed.

The first ground urged by the learned Counsel for the Petitioner was that since the document said to be forged which was a Will and was produced in the court of the Tahsildar, therefore, the complaint filed would come within the ambit of Section 195(1)(b)(ii) Code of Criminal Procedure. Therefore, the complaint could not be filed by Manni, but had to be filed by the Tahsildar as presiding officer of the court in which the document was filed. The second ground urged is that no offence was made out either u/s 167 or Section 218 of the Indian Penal Code because it was the duty of the Secretary of the Gaon Sabha to prepare these registers in which false entry was said to have been made and, therefore, the complaint could not be brought against the Pradhan. As against this it was contended by the learned Counsel for the opposite party that it was the duty of the Pradhan to prepare these registers.

The complaint against the applicants was filed under Sections 167, 218, 419, 420, 465, 467 and 471, Indian Penal Code . The Will which was said to have been forged was executed in the office of the Sub-Registrar on 26-3-76 and it was then filed in mutation proceedings in the court of Tahsildar on 13-8-76. It was argued by the learned Counsel for the opposite parties that in this case there would be no bar u/s 195, Code of Criminal Procedure because forgery was done prior to the document being filed in the court. I am, however, unable to accept this argument because whenever forgery was committed and it was in respect of a document which was produced in court then the bar contained in Section 195(1)(b)(ii), Code of Criminal Procedure would apply. Since forgery was said to have been committed and it was in respect of a document which was filed in the court of Tahsildar, therefore, the bar contained in Section 195 would come into play. This bar would not be only in respect of the offence punishable u/s 471, Indian Penal Code but would also be in respect of the offence punishable u/s 465 and 467, Indian Penal Code because forgery is said to have been committed as defined in Section 463, Indian Penal Code . Because of this bar of Section 195, therefore, the learned Magistrate could not take cognizance of the offence which was complained to have been committed under Sections 465, 467 and 471, Indian Penal Code .

Then, we may consider the case in respect of offences said to have been committed u/s 419 and 420, Indian Penal Code . These offences clearly flowed from the offence said to have been committed u/s 471, Indian Penal Code . Offences under these two sections were thus very much connected with the offence u/s 471, Indian Penal Code and, therefore, the bar of Section 195 shall apply to taking cognizance in respect of offences under these two sections also. In Vivekanand Nand Kishore v. State, AIR 1969 All. 189 it was held that the main offence was u/s 471, Indian Penal Code and the other offence flowed from it in the sense that if the charge u/s 471 failed charges for other offences would also fail. Therefore, none of these other offences ''in truth and substance'' could be said to be of a different nature and the case would not be taken out of the scope and ambit of Section 195, because other connected offences were said to have been committed. Applying this very test to the facts of this case it would be seen that if the charge in this case u/s 471 fails then charges under Sections 419 and 420, Indian Penal Code would also fail, because if no forgery was committed then the question of any cheating would not arise. To my mind, therefore, taking cognizance of offences under Sections 419 and 420, Indian Penal Code was also barred u/s 195(1)(b)(ii), Code of Criminal Procedure.

That leaves the complaint only in respect of two other offences said to have been committed under Sections 167 and 218, Indian Penal Code .

It is true that Under Rule 142(b) of Panchayat Raj Rules framed under U. P. Panchayat Raj Act the Pradhan and the Secretary both are responsible for correct maintenance of birth and death registers, but Under Rule 4 it was the Secretary alone who was to make entries in the family registers and to enter death and birth in it. u/s 167, Indian Penal Code only a public servant charged with the preparation or translation of any document would be liable but it has not been shown to me that it was the Pradhan of the Gaon Sabha who was charged with the preparation of this register. Again, u/s 218, Indian Penal Code it was public servant charged with the preparation of any record who could be made liable, but as stated in this case, the Pradhan was only liable for correct maintenance of these registers and was not required to prepare them or to make any entries in them. It is, therefore, clear that no offence was committed by the Pradhan either under Sections 167 or 218, Indian Penal Code . To take an example it is the District Magistrate who is responsible for correct maintenance of all records in his office but if some forgery is made in any of the records it will be the person responsible for preparing those records who would be liable and not the District Magistrate. Similarly, even if any wrong entry was made in these registers the offence was not committed u/s 167 or 218, Indian Penal Code by the Pradhan. Manni, opposite party, who filed this complaint against the applicants made an application to the SDO to get the Pradhan removed from his office. He also admitted in his statement that he was inimical to the Pradhan. It was, therefore, obvious that he filed this complaint only to harass the applicant and to let such a complaint proceed even in respect of offences under Sections 167 and 218, Indian Penal Code would be an abuse of the process of the Court.

Thus, it would be evident that the Magistrate could not take cognizance of this complaint in respect of offences under Sections 465, 467, 471, 419 and 420 Indian Penal Code because of the bar contained in Section 195(1)(b)(ii), Code of Criminal Procedure and proceedings in respect of offences under Sections 167 and 218, Indian Penal Code would also be an abuse of process of court. Therefore, it is a very fit case in which proceedings pending against the applicants under these sections in the court of Special Judicial Magistrate, Basti, must be quashed.

This petition is, therefore, allowed and proceedings in the complaint filed against the applicants in the court of Special Judicial Magistrate, Basti, are hereby quashed.