TMI Blog1971 (5) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... was, however, granted by the learned Judge. 2. The question raised relates to the scope and effect of Section 195(1)(c), Cr.P.C. and its applicability to cases where a forged document has been produced as evidence in a judicial proceeding by a party thereto and prosecution of that party is sought for offences under Sections 467 and 471, I.P.C. in respect of that document. 3. The relevant facts of the case may now be briefly stated, The appellant Patel Laljibhai Somabhai instituted a civil suit (No. 11 of 1964) in the court of Joint Civil Judge at Dholka against Vora Safakat Huseian Yusufali (hereafter called the complainant) and his brother Vora Ahmed Huseian Yusufali for the recovery of ₹ 2,000/-on the basis of a cheque dated November 22, 1963 (alleged to have been given to him on June 27, 1963) under the signatures of the complainant Vora Safakat Huseian Yusufali Lakadwala on the Bombay Mercantile Cooperative Bank Ltd., Ahmedabad Branch. The defence in the suit was that the cheque in question and certain coupons which were produced and relied upon in that suit were forged and the suit was false. The suit was dismissed on January 30, 1965 by the Joint Civil Judge, Dho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s containing blank cheque forms but bearing the complainant's signatures and all the books of account were at that time kept in the house of accused No. 1, where the complainant and his brother used to stay. It is in this background that the accused No. 1 prepared a cheque for ₹ 2,000/-in his own handwriting on a blank cheque form bearing the complainant's signature and the appellant utilised that cheque. The appellant and accused No. 1 were, on these averments, alleged to have forged the cheque. Civil Suit No. 11/64 was then filed in which this cheque was used knowing the same to be forged The Magistrate found prima facie evidence that the appellant (accused No. 2) had fraudulently used in the civil suit the forged cheque in question. The Magistrate also found prima facie evidence that accused No. 1 had committed an offence punishable under Section 467, I.P.C. and the appellant was liable under Section 34, I.P.C. The forgery of the cheque and the use of the forged cheque as genuine were considered by the Committing Magistrate to form part of the same transaction and the two charges could, therefore, be tried together. The question of the necessity of complaint by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject by giving him a right to approach the court if he considers that a wrong has been done to him. Sub-section (1) of Section 195 which is concerned with (a) Prosecution for contempt of lawful authority of public servants , (b) Prosecution for certain offences against public justice , and (c) Prosecution for certain offences relating to documents given in evidence places some restrictions on the general power conferred on courts of Magistrates by Section 190 to take cognizance of offences. This section may here be reproduced. 195. Prosecution for contempt of lawful authority of public servants.- (1) No Court shall take cognizance- (a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate; (b) Prosecution for certain offences against public justice.-of any offence punishable under any of the following sections of the same Code, namely, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an offence in respect of a document produced or given in evidence in a proceeding in a court; and (ii) the commission of such offence by a party to such proceeding. The use of the words in respect of in the first ingredient would seem to some extent to enlarge the scope of this clause. Judicial opinion, however, differs on the effect and meaning of the words to have been committed by a party to any proceeding in any court . As Clause (b) of Section 195(1) does not speak of offence committed by a party to the proceeding, while considering decisions on that clause this distinction deserves to be borne in mind. Broadly speaking two divergent views have been expressed in decided cases in this connection. According to one view, to attract the prohibition contained in Clause (c) the offence should be alleged to have been committed by the party to the proceeding in his character as such party, which means after having become a party to the proceeding, whereas according to the other view the alleged offence may have been committed by the accused even prior to his becoming a party to the proceeding provided that the document in question is produced or given in evidence in such procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court, the complaint may be signed by such officer of the Court as the Court may appoint. For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200. (3) Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided. This section quite clearly postulates formation of judicial opinion that it is expedient to hold an inquiry into an offence referred to in Clause (b) or in Clause (c) of Section 195(1) which appears to the Court to have been committed either in or in relation to a proceeding in that court. Offences mentioned in Clause (b), it may be recalled, would be covered by that clause even if they are alleged to have been committed in relation to a proceeding in a court, whereas those mentioned in Clause (c) should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the stric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in that case read both Section 195 and Section 476 Cr.P.C. together because Section 195 was held to lay down the bar against the cognizance of certain offences and Section 476 the method for removing the bar. On the view taken by the court a complaint cannot be filed by a court under its inherent jurisdiction outside the provisions of Section 476 Cr.P.C. In Hari Prasad v. Hans Raj AIR1966All124 a learned single Judge of the Allahabad High Court, dealing with the allegations made in a complaint under Sections 476 and 471 I.P.C. that a forged sale deed had been got executed and registered in pursuance of a criminal conspiracy amongst three opposite parties one of whom had filed an application for the mutation proceedings on the basis of the said forged deed observed that a close nexus was established between the conspiracy and its resulting in a forged deed and the subsequent filing of the mutation application on its basis, all of which form various links of the same chain. On this premise it was observed that cognizance of the offences was a bar on a private complaint under Section 195(1)(b) Cr.P.C. The learned Judge in the course of the judgment also said that even if it is held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Huq v. State of West Bengal 1953CriLJ1232 it was observed that offences under Sections 193 and 218 I.P.C. in that case were both barred. In Krishna Nair v. State of Kerala (1962) 1 Crl.L.J. 340 a learned single Judge of the Kerala High Court observed that the words when such offence has been committed by a party to any proceedings in any court used in Section 195(1)(c) referred not to the date of the commission of the alleged offence but to the date on which the cognizance of the criminal court is invited and that when once a document has been produced or given in evidence before a court the sanction of that court or perhaps of some other court to which that court is subordinate is necessary before a party to the proceedings in which the document was produced or given in evidence can be prosecuted notwithstanding that the offence alleged was committed before the document came into the court at a date when the person complained against was not a party to any proceeding in court. In this case reference was made to several decisions of various High Courts including some decisions of the Allahabad High Court prior to the Full Bench decision which was significantly not noticed. The Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The second charge with which alone the court was concerned was based on the allegation that Rajak had made use of the receipt dated May, 23, 1964, alleged to be forged before the Mamlatdar by producing the same before that officer on July 16, 1964. The objection taken by Rajak was that by virtue of Section 195(1)(c) the court could not take cognizance of this case whereas on behalf of the prosecution it was contended that the forged receipt had been produced before the Mamlatdar before its production in the civil court and, therefore, Section 195(1)(c) was inapplicable. It was in this context that the majority of the judges held that no complaint by the court was necessary whereas one learned Judge took the contrary view. It appears to us that in the Gujarat case the use of the forged power of attorney before the Mamlatdar occurred while the execution proceedings were pending but since it was not this user which was the subject matter of the charge the majority of the Judges rightly held that this was not barred by Section 195(1)(c). It was apparently not argued that the complaint of the Mamlatdar was necessary. 9. In State v. Bhikubhai A.I.R. 1965 Guj. 70 a Division Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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