Prem Singh and Others vs State of U.P. and Others

Om Prakash-VII, J.—This writ petition under Article 226 of the Constitution of India has been filed by the petitioners with the prayer to issue writ, order or direction in the nature of certiorari to quash the impugned order dated 22.3.2014 passed by the Additional Sessions Judge, Court No. 4, Saharanpur in Criminal Revision No. 135 of 2012 (Raja Maheshwari vs. State of U.P.) and Criminal Revision No. 179 of 2012 (Prem Singh vs. State) as well as the order dated 13.2.2012 passed by the Chief Judicial Magistrate, Saharanpur in Criminal Case No. 194 of 2012 (State vs. Gurbux Singh and others).

It appears that a civil suit No. 202 of 1974 was filed by the father of petitioner No. 1 and others in regard to some property dispute, which was decreed in their favour. After the aforesaid judgment, order and decree, petitioner No. 1 and Gurubux Singh filed Execution Case No. 23 of 1997, which is pending before the Civil Judge (SD), Saharanpur. During pendency of the aforesaid Execution Case, some defendants expired. The petitioner No. 1 and others filed a substitution application. The said substitution application was allowed on 28.1.2011 and the concerned Court permitted to substitute the heirs and legal representative of the said defendants. It further appears that the defendant No. 3 was shown in the array of parties as dead person. The petitioner No. 1 and others filed correction application to correct the said mistake, which was allowed on 26.3.2012 on the cost of Rs. 200/-. Against the said order dated 26.3.2012, a Civil Revision No. 41 of 2012 was filed, which was dismissed by the order dated 7.2.2014. The respondent No. 2 filed an application under Section 156(3) Cr.P.C. against the petitioners to register a case of cheating. The Chief Judicial Magistrate, Saharanpur vide order dated 18.11.2011 directed the concerned police station to register and investigate the case against the petitioners. In pursuance of the order of the Chief Judicial Magistrate, case was registered on 30.11.2011 against the petitioners and Gurubux Singh at Police Station Kotwali City, Saharanpur at Case Crime No. 436 of 2011 under Sections 420 , 467 , 468 , 471 , 120-B , 295-A , 297 , 298 IPC and 3(1)(5)(8)(9)(10) of SC/ST Act. The Investigating Officer after completing the investigation submitted charge-sheet against the petitioners and one Gurubux Singh on 23.1.2012. The concerned Magistrate took the cognizance. Aggrieved with the said order, the petitioners filed criminal revision No. 179 of 2012, which was dismissed by the order dated 22.3.2014. Hence the present writ petition.

Heard Shri R.K. Khanna, learned counsel for the petitioners, Shri Vinay Kumar Pathak, learned counsel for the respondent No. 2 and the learned AGA appearing for the State respondent No. 1 and perused the entire record.

It was submitted by the learned counsel for the petitioners that during the execution proceeding pending before the Court concerned, a substitution application to substitute the heirs and legal representatives of the defendants was moved but due to inadvertent mistake, amendment was made before the defendant No. 3 showing him as dead. As and when this fact came to the knowledge of the petitioners, they moved an application to correct the mistake. The said correction application was allowed and amendment was also incorporated. The order passed by the court concerned was challenged in the higher forum but the same was dismissed. Proceeding initiated under Section 340 Cr.P.C. was also dismissed but the respondent No. 2 with ulterior motive moved an application under Section 156(3) Cr.P.C. The concerned Magistrate illegally took cognizance in the matter. The order taking cognizance was also challenged before the revisional court but the revisional court also did not consider the fact that private complaint is barred by the provision of Section 195 Cr.P.C. and dismissed the revision. It was further submitted that the court dealing with the execution case did not initiate any criminal proceeding in respect of the said offences. Since proceeding under Section 340 Cr.P.C. was also dismissed, the proceeding of the criminal case, which was started on the basis of charge-sheet, is illegal and cannot go-on. It was further submitted that the respondent No. 2 was not party in the suit, hence, he cannot initiate criminal proceedings. In support of his submissions, learned counsel for the petitioners has placed reliance on the following decisions:

Sachida Nand Singh and Another Vs. State of Bihar and Another, .

Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, .

On the other hand, learned counsel for the respondent No. 2 and the learned AGA appearing for the State has submitted that there is distinction between forgery committed by any party regarding any document during pendency of the matter inside the Court and outside the Court. It was further submitted that if the allegations levelled was committed in relation to a document outside the Court, the bar created under Section 195(1)(b)(ii) Cr.P.C. would not operate. The substitution application and the affidavit was prepared outside the court showing the respondent No. 3 Ram Prasad as dead, later on it was produced before the Court and on that basis by committing fraud an illegal order was obtained. The impugned orders passed by the Court below do not suffer from illegality or infirmity. It was further submitted that the disputed property belongs to a trust and the respondent No. 2 is the beneficiary as follower, therefore, he cannot be placed in the category of stranger. It was further submitted that regarding commission of cognizable offences, information can be given to the competent authority by any person to set the law in motion. Learned counsel for the respondent No. 2 and the learned AGA have placed reliance on the decision of the Supreme Court in the case of Kishorbhai Gandubhai Pethani vs. State of Gujarat and another, (2014)13 SCC 539.

I have considered the submissions made by the learned counsel for the parties and gone through the entire record including the case laws.

It is admitted fact between the parties that Civil Suit pending regarding the disputed property was decreed ex-parte and execution proceeding was going on. It is also not in dispute that some of the parties in the execution proceedings were expired during pendency of the execution proceeding. A substitution application was moved for substituting the heirs and legal representatives of the defendant No. 3 Ram Prasad, who was alive by that time but was shown as dead in the application. The concerned Court dealing with the matter allowed the substitution application in respect of the defendant No. 3. Later on the correction was made on the basis of permission granted by the court concerned. Proceeding under Section 340 Cr.P.C. was also finalized between the parties. No complaint or criminal proceeding was initiated by the court concerned. Criminal proceeding on the basis of application u/s 156(3) Cr.P.C. moved by the respondent No. 2 was initiated. The petitioners have challenged the order taking cognizance by the concerned Magistrate by way of criminal revision, which was also dismissed. Thus, on the basis of above factual situation, the questions to be considered by this Court are as to whether the respondent No. 2 has any locus-standi to move application u/s 156(3) Cr.P.C. and as to whether the offences levelled against the petitioners were committed in relation to document produced before the Court during pendency of the matter (custodia legis) or the offences levelled against them have been committed outside the Court.

Before dealing with the issues involved in the matter, I would like to refer to the law laid down by the Apex Court in the case of Kishorbhai Gandubhai Pethani (supra) wherein the Apex Court has also discussed the law laid down in the case of Sachida Nand Singh case (supra). Paragraph Nos. 8, 9, 10, 11, 12, 13 and 14 of the said case are as follows:

"8. In Mohan Singh Vs. Late Amar Singh Thr. The Lrs., , while dealing with a case of perjury, this Court held as under: (SCC p.704, para 36)

36.......Tampering with the record of judicial proceedings and filing of false affidavit, in a court of law has the tendency of causing obstruction in the due course of justice. I undermines and obstructs free flow of unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice has to be kept clear and pure and no one can be permitted to take liberties with it by soiling its purity."

Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large.

In the instant case, admittedly, the documents had been forged and fabricated. The manipulation, if any, had been made prior to filing of those documents in the court. Therefore, the question arises whether in such a fact situation, provisions of Section 195 and 340 CrPC are attracted.

In M.S. Ahlawat Vs. State of Haryana and Another, , this Court held as under: (SCC pp. 281-82, paras 5-6)

Chapter XI IPC deals with ''false evidence and offences against public justice'' and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (CrPC) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 IPC, etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice.

Section 340 CrPC prescribes the procedure as to how a complaint may be preferred under Section 195 Cr.P.C. While under Section 195 Cr.P.C. it is open to the court before which the offence was committed to prefer a complaint for the prosecution of the offender, Section 340 Cr.P.C. prescribes the procedure as to how that complaint may be preferred. Provisions under Section 195 Cr.P.C. are mandatory and no court can take cognizance of offences referred to therein (sic). It is in respect of such offences the court has jurisdiction to proceed under Section 340 Cr.P.C. and a complaint outside the provisions of Section 340 Cr.P.C. cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction."

However, a Constitution Bench of this Court in Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, , after considering a large number of judgments on the issue, held as under: (SCC pp. 389-91, paragraphs 31 & 33-34)

That apart, the section which we are required to interpret is not a penal provision but is part of a procedural law, namely, Code of Criminal Procedure which elaborately gives the procedure for trial of criminal cases. The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by Court. A penal statute is one upon which an action for penalties can be brought by a public officer or by a person aggrieved and a penal act in its wider sense includes every statute creating an offence against the State, whatever is the character of the penalty for the offence. The principle that a penal statute should be strictly construed, as projected by the learned counsel for the appellants can, therefore, have no application here.

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.

In the present case, the will has been produced in the Court subsequently. It is nobody''s case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.

This Court in Ram Dhan Vs. State of U.P. and Another, considered this very aspect of the matter and relying upon the earlier judgment of this Court in Sachida Nand Singh and Another Vs. State of Bihar and Another, came to the conclusion that if the fabrication of false evidence takes place or the document is tampered with before filing in the court, the provisions of Section 195 Cr.P.C. would not be attracted. It is only when the document is tampered with after filing in the court that the bar provided in Section 195 Cr.P.C. would be attracted. A similar view has been reiterated on the issue by this Court in P. Swaroopa Rani Vs. M. Hari Narayana @ Hari Babu, , Mahesh Chand Sharma Vs. State of U.P. and Others, , C. Muniappan and Others Vs. State of Tamil Nadu, , The Institute of Chartered Accountants of India Vs. Vimal Kumar Surana and Another, and C.P. Subhash Vs. Inspector of Police Chennai and Others, .

This Court while considering the issue in Rugmini Ammal (dead) by Lrs. Vs. V. Narayana Reddiar and Others, reiterated a similar view while placing reliance upon Sachida Nand Singh explaining as under: (Iqbal Singh Marwah case, SCC pp. 387-88, paragraphs 25-26):

An enlarged interpretation to Section 195(1)(b)(ii) , whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of society at large.

Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided."

In the present matter, criminal case was registered at the police station concerned on the basis of application u/s 156(3) Cr.P.C. moved by the respondent No. 2, who was not the party in the civil suit or execution proceeding started on the basis of the decree passed in the said civil suit, but the offences levelled against the petitioners are cognizable one and the respondent No. 2 claimed himself to be one of the beneficiary of the trust property. Looking to the settled legal position regarding initiation of the criminal proceeding for cognizable offences, the submissions made by the learned counsel for the petitioners that respondent No. 2 has no locus-standi is not acceptable.

So far as the question No. 2, mentioned hereinabove, is concerned, the substitution application was prepared outside the court and thereafter it was produced in the proceeding pending before the court. The defendant No. 3 Ram Prasad in the execution proceeding was shown dead in the application prepared outside the court. Permission granted by the court to make correction about the incorporation of the substitution order regarding Ram Prasad will not be a ground to terminate the entire proceeding started on the basis of the chargesheet for the reason that the offences levelled against the petitioners were committed by them outside the court. Bar created under Section 195 Cr.P.C. would be attracted only when the offences enumerated in the said provisions have been committed with respect to the 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. The offences said to have been committed were committed outside the court, when they prepared a forged document showing Ram Prasad as dead. The settled legal position is that when the document is tampered with after filing in the court, the bar provided under Section 195 Cr.P.C. would be attracted. In this matter, filing of private complaint is not barred.

In view of the above discussions, I am of the opinion that no interference is called for with the impugned orders. There is no infirmity or illegality in the said orders. The writ petition being devoid of merits is liable to be dismissed.

The Writ Petition is accordingly dismissed

It is made clear that what offences are attracted against the petitioners has to be considered by the court concerned at appropriate stage. It will be open to the petitioners to raise these questions at appropriate stage before the court concerned.