Iqbal Singh Marwah Vs. Meenakshi Marwah

Issue : Criminal Procedure Code – Sections, 195 (1), 340 and 482; Indian Penal Code – Sections, 192, 193, 463, 464, 465, 467, 469, 471, 475, 476, 499 and 500
Citation 2005 (4) SCC 370

CASE NO.:

Appeal (crl.)  402 of 2005

PETITIONER: Iqbal Singh Marwah & Anr.

RESPONDENT: Meenakshi Marwah & Anr.

DATE OF JUDGMENT: 11/03/2005

BENCH:

CJI R.C.Lahoti, B.N.Agrawal, H.K. Sema, G.P.Mathur & P.K.Balasubramanyan

JUDGMENT:J U D G M E N T

(Arising out of Special Leave Petition (Criminal ) No. 4111/2000)

(With Criminal Appeal Nos. 904/1998 & 1069-1070/1998)

  

G. P. MATHUR, J.

  

1.         Leave granted in Special Leave Petition (Crl) No.4111 of 2000.

2.         In view of conflict of opinion between two decisions of this Court

each rendered by a bench of three learned Judges in Surjit Singh vs. Balbir

Singh 1996 (3) SCC 533 and Sachida Nand Singh vs. State of Bihar 1998

(2) SCC 493, regarding interpretation of Section 195(1)(b)(ii) of Code of

Criminal Procedure 1973 (for short ‘Cr.P.C.’), this appeal has been placed

before the present Bench.

3.    The facts of the case may be noticed in brief.  The appellant nos.1 and 2

are real brothers of Mukhtar Singh Marwah, while respondent nos.1 and 2

are his widow and son respectively. Mukhtar Singh Marwah died on

3.6.1993.   The appellant no.1 filed Probate Case No.363 of 1993 in the

Court of District Judge, Delhi, for being granted probate of the will allegedly

executed by Mukhtar Singh Marwah on 20.1.1993.  The petition was

contested by the respondents on the ground that the will was forged.  On

their application the appellant no.1 filed the original will in the Court of

District Judge on 10.2.1994.  Thereafter, the respondents moved an

application under Section  340 Cr.P.C. requesting the Court to file a criminal

complaint against appellant no.1 as the will set up by him was forged.   A

reply to the said application was filed on 27.7.1994 but the application has

not been disposed of so far.   Thereafter, the respondents filed a criminal

complaint in May 1996 in the Court of Chief Metropolitan Magistrate, New

Delhi, for prosecution of the appellants and their mother Smt. Trilochan

Kaur Marwah under Sections 192, 193, 463, 464, 465, 467, 469, 471, 499

and 500 IPC on the ground that the will of Mukhtar Singh Marwah set up by

the appellants is a forged and fictitious document.  It is stated in the

complaint that though Mukhtar Singh Marwah was an educated person, but

the will bears his thumb impression. He had accounts in Bank of Tokyo and

Standard Chartered Bank which he used to operate by putting his signature.  

Under the will he had completely divested the respondents, who were his

widow and son respectively and also a daughter who was spastic and had

bequeathed his entire property to his mother and after her death to his

brothers and sisters.   The appellant no.1 Iqbal Singh Marwah was appointed

as the sole executor and trustee of the will.   Before the learned Metropolitan

Magistrate, the complainant examined six witnesses including two persons

from the banks who brought the relevant records and deposed that Mukhtar

Singh Marwah used to operate the accounts by putting his signature.   The

learned Metropolitan Magistrate held that as the question whether the will

was a genuine document or a forged one, was an issue before the District

Judge in the probate proceedings where the will had been filed, Sections 195

(1)(b)(i) and (ii) Cr.P.C. operated as a bar for taking cognizance of the

offences under Sections 192, 193, 463, 464, 471, 475 and 476 IPC.   The

complaint was accordingly dismissed by the order dated 2.5.1998.   The

respondents thereafter filed a criminal revision against the order of the

learned Metropolitan Magistrate, before the Sessions Judge, who, relying

upon Sachida Nand Singh vs. State of Bihar 1998 (2) SCC 493, held that the bar contained in Section  195 (1)(b)(ii) Cr.P.C. would not apply where forgery of a document was committed before the said document was

produced in Court.  The revision petition was accordingly allowed and the

matter was remanded to the Court of Metropolitan Magistrate for proceeding

in accordance with law.   The appellants challenged the order passed by the learned Additional Sessions Judge by filing a petition under Section  482 Cr.P.C. before Delhi High Court, but the same was dismissed on 15.9.2000 following the law laid down in Sachida Nand Singh.  Feeling aggrieved,

the appellants have preferred the present appeal in this Court.

4.         Sub-section (1) of Section 195 Cr.P.C., which according to the

appellants, creates a bar in taking cognizance on the complaint filed by the

respondents, reads as under :

195.     Prosecution for contempt of lawful authority of

public servants, for offences against public justice and for

offences relating to documents given in evidence. –   (1) No

Court shall take cognizance

(a) (i)  of any offence punishable under Sections 172 to 188

(both inclusive) of the Indian Penal Code (45 of 1860),

or

(ii)        of any abetment of, or attempt to commit, such offence,

or

  

(iii)         of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant

concerned or of some other public servant to whom he is

administratively subordinate ;

           

(b) (i)  of any offence punishable under any of the following

sections of the Indian Penal Code (45 of 1860), namely,

Sections 193 to 196 (both inclusive), 199, 200, 205 to

211 (both inclusive) and 228, when such offence is

alleged to have been committed in, or in relation to, any

proceeding in any Court, or

(ii)          of any offence described in Section 463, or punishable

under Section 471, Section 475 or Section 476, of the

said Code, when such offence is alleged to have been

committed in respect of a document produced or given

in evidence in a proceeding in any Court, or

(iii)       of any criminal conspiracy to commit, or attempt to

commit, or the abetment of, any offence specified in

sub-clause (i) or sub-clause (ii),

except on the complaint in writing of that Court, or of some

other Court to which that Court is subordinate.

           

5.         The principal controversy revolves round the interpretation of the

expression “when such offence is alleged to have been committed in respect

of a document produced or given in evidence in a proceeding in any Court”

occurring in clause (b)(ii) of sub-section (1) of Section  195 Cr.P.C.  The

appellants place reliance on the following observations made in para 10 of

the report in Surjit Singh vs. Balbir Singh :

            “It would thus be clear that for taking cognizance of an

offence, the document, the foundation of forgery, if

produced before the court or given in evidence, the bar of

taking cognizance under Section 195(1)(b)(ii) gets

attracted and the criminal court is prohibited from taking

cognizance of offence unless a complaint in writing is

filed as per the procedure prescribed under Section 340

of the Code by or on behalf of the Court.   The object

thereby is to preserve purity of the administration of

justice and to allow the parties to adduce evidence in

proof of certain documents without being compelled or

intimidated to proceed with the judicial process.   The bar

of Section 195 is to take cognizance of the offence

covered thereunder.”

                                   

to contend that once the document is produced or given in evidence in Court,

the taking of cognizance on the basis of private complaint is completely 

barred.  

            In Sachida Nand Singh after analysis of the relevant provisions and

noticing a number of earlier decisions (but not Surjit Singh), the Court

recorded its conclusions in paragraphs 11, 12 and 23 which are being

reproduced below :

“11.      The scope of the preliminary enquiry envisaged in

Section 340(1) of the Code is to ascertain whether any

offence affecting administration of justice has been

committed in respect of a document produced in court or

given in evidence in a proceeding in that Court.  In other

words, the offence should have been committed during

the time when the document was in custodia legis.

12.       It would be a strained thinking that any offence

involving forgery of a document if committed far outside

the precincts of the Court and long before its production

in the Court, could also be treated as one affecting

administration of justice merely because that document

later reached the court records.

23.       The sequitur of the above discussion is that the bar

contained in Section 195(1)(b)(ii) of the Code is not

applicable to a case where forgery of the document was

committed before the document was produced in a

court.”  

  

6.         On a plain reading clause (b)(ii) of sub-section (1) of Section  195 is

capable of two interpretations.  One possible interpretation is that when an

offence described in Section 463 or punishable under Section  471, Section

475 or Section  476 IPC is alleged to have been committed in respect of a

document which is subsequently produced or given in evidence in a

proceeding in any Court, a complaint by the Court would be necessary.   The

other possible interpretation is that when a document has been produced or

given in evidence in a proceeding in any Court and thereafter an offence

described as aforesaid is committed in respect thereof, a complaint by the

Court would be necessary.   On this interpretation if the offence as described in the Section  is committed prior to production or giving in evidence of the document in Court, no complaint by Court would be necessary and a private

complaint would be maintainable. The question which requires consideration

is which of the two interpretations should be accepted having regard to the

scheme of the Act and object sought to be achieved.

7.         Dr. A.M. Singhvi, learned senior counsel for the appellants, submitted

that the purpose of Section  195 is to bar private prosecution where the cause

of justice is sought to be perverted leaving it to the Court itself to uphold its

dignity and prestige.  If a very restricted interpretation is given to Section

195(1)(b)(ii) Cr.P.C., as held in Sachida Nand Singh, the protection

afforded by the provision will be virtually reduced to a vanishing point,

defeating the very object of the enactment.  The provision, it is urged,  does

not completely bar the prosecution of a person who has committed an

offence of the type described thereunder, but introduces a safeguard in the

sense that he can be so prosecuted only on the complaint of the Court where

the document has been produced or given in evidence or of some other Court

to which that Court is subordinate.  Learned counsel has also submitted that

being a penal provision, giving a restricted meaning as held in Sachida

Nand Singh, would not be proper as a person accused of having committed

an offence would be deprived of the protection given to him by the

legislature.  He has also submitted that on the aforesaid view there is a

possibility of conflicting findings being recorded by the civil or revenue

Court where the document has been produced or given in evidence and that

recorded by the criminal Court on the basis of private complaint and

therefore an effort should be made to interpret the Section  in the manner

which avoids such a possibility.

8.         Shri Y.P. Narula, learned counsel for the respondents has submitted

that the language of the Section  is clear and there being no ambiguity

therein, the only possible manner in which it can be interpreted is that the

complaint by a Court would be necessary when the offences enumerated in

the Section  are committed at a time when the document has already been

produced or given in evidence in Court i.e. when it is in the proceedings of

the Court.  The provision has to be strictly construed as it creates a bar on

the power of the Court to take cognizance of an offence and any provision

which ousts the jurisdiction of the Court, which it otherwise possesses, must

be strictly construed and cannot be given an enlarged meaning.  Since the

provision deprives a person who is a victim and is aggrieved by the offences

READ  DV dismissed - Sonia versus Vinod

described under Section  463 or punishable under Sections 471, 475 or 476

IPC to initiate a criminal prosecution by filing a complaint, his interest

cannot be overlooked and therefore the provision should not be given an

enlarged meaning, but only a restricted meaning should be given.   Learned

counsel has also submitted that in certain situations where the forgery has

been committed at any time prior to the production or giving in evidence of

the document in Court, it may not at all be possible for such Court to

effectively form an opinion as to whether it is expedient to file a complaint

and that may facilitate the escape of a guilty person.  Shri Narula has also

submitted that in Sachida Nand Singh, the Court has reiterated and has

adopted the same view which has been taken in several earlier decisions of

this Court, and only in Surjit Singh a discordant note has been struck which

is not correct.

9.         The scheme of the statutory provision may now be examined.

Broadly, Section  195 Cr.P.C. deals with three distinct categories of offences 

which have been described in clauses (a),  (b)(i) and (b)(ii) and they relate to

(1) contempt of lawful authority of public servants, (2) offences against

public justice, and (3) offences relating to documents given in evidence. 

Clause (a) deals with offences punishable under Sections 172 to 188 IPC

which occur in Chapter X of the IPC and the heading of the Chapter is  ‘Of

Contempts Of The Lawful Authority Of Public Servants’.  These are

offences which directly affect the functioning of or discharge of lawful

duties of a public servant.  Clause (b)(i) refers to offences in Chapter XI of

IPC which is headed as  ‘Of False Evidence And Offences Against Public

Justice’.  The offences mentioned in this clause clearly relate to giving or

fabricating false evidence or making a false declaration in any judicial

proceeding or before a Court of justice or before a public servant who is

bound or authorized by law to receive such declaration, and also to some

other offences which have a direct co-relation with the proceedings in a

Court of justice (Sections 205 and 211 IPC).  This being the scheme of two

provisions or clauses of Section  195, viz., that the offence should be such

which has direct bearing or affects the functioning or discharge of lawful

duties of a public servant or has a direct correlation with the proceedings in a

court of justice, the expression “when such offence is alleged to have been

committed in respect of a document produced or given in evidence in a

proceeding in a Court” occurring in clause (b)(ii) should normally mean

commission of such an offence after the document has actually been

produced  or given in evidence in the Court. The situation or contingency

where an offence as enumerated in this clause has already been committed

earlier and later on the document is produced or is given in evidence in

Court, does not appear to be in tune with clauses (a)(i) and (b)(i) and

consequently with the scheme of Section  195 Cr.P.C.  This indicates that

clause (b)(ii) contemplates a situation where the offences enumerated therein

are committed with respect to a document subsequent to its production or

giving in evidence in a proceeding in any Court.

10.       Section 195(1) mandates a complaint in writing of the Court for

taking cognizance of the offences enumerated in clauses (b) (i) and (b)(ii)

thereof.   Sections 340 and 341 Cr.P.C. which occur in Chapter XXVI give

the procedure for filing of the complaint and other matters connected

therewith.  The heading of this Chapter is –‘Provisions As To Offences

Affecting The Administration Of Justice’.  Though, as a general rule, the

language employed in a heading cannot be used to give a different effect to

clear words of the Section  where there cannot be any doubt as to their

ordinary meaning, but they are not to be treated as if they were marginal

notes or were introduced into the Act merely for the purpose of classifying

the enactments.  They constitute an important part  of the Act itself, and may

be read not only as explaining the Sections which immediately follow them,

as a preamble to a statute may be looked to explain its enactments, but as

affording a better key to the constructions of the Sections which follow them

than might be afforded by a mere preamble.(See Craies on Statute Law, 7th

Ed. Pages 207, 209).   The fact that the procedure for filing a complaint by

Court has been provided in Chapter XXVI dealing with offences affecting

administration of justice, is a clear pointer of the legislative intent that the

offence committed should be of such type which directly affects the

administration of justice, viz., which is committed after the document is

produced or given in evidence in Court.  Any offence committed with

respect to a document at a time prior to its production or giving in evidence

in Court cannot, strictly speaking, be said to be an offence affecting the

administration of justice.

11.       It will be useful to refer to some earlier decisions touching the

controversy in dispute which were rendered on Section  195 of Code of

Criminal Procedure 1908 (for short ‘old Code’).  Sub-section (1) (c) of

Section 195 of Old Code read as under:

“Section 195  

                       

                        (1)        No Court shall take cognizance –

                                   

(c) Prosecution for certain offences relating to

documents given in evidence. —  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”  

     

It may be noticed that language used in Section  195(1)(b)(ii) Cr.P.C.

is similar to the above provision except that the words “by a party to any

proceeding in any Court” occurring therein have been omitted.  We will

advert to the effect of this omission later on.

12.       A Full Bench of Allahabad High Court in Emperor vs. Kushal Pal

Singh  AIR 1931 All 443 considered the scope of the aforesaid provision and

held, that clause (c) of Section 195 applies only to cases where an offence is

committed by a party, as such, to a proceeding to any Court in respect of a

document which has been produced or given in evidence  in such

proceeding. It was held that an offence which has already been committed

by a person who does not become a party till, say, 30 years after the

commission of the offence,  cannot be said to have been committed by a

party within the meaning of clause (c).   A three Judge Bench of this Court

in Patel Lalji Bhai Somabhai vs. The State of Gujarat  1971(2) SCC 376

after examination of the controversy in considerable detail observed that as a

general rule the Courts consider it expedient in the interest of justice to start

prosecutions as contemplated by Section  476  (of the old Code which now

corresponds to Section  340 Cr.P.C.) only if there is a reasonable foundation

for the charge and there is a reasonable likelihood of conviction. The

requirement of a finding as to the expediency is understandable in case of an

offence alleged to have been committed either in or in relation to a

proceeding in that Court in case of offences specified in clause (b) [of the

old Code corresponding to clause (b)(i) Cr.P.C.] because of the close nexus

between the offence and the proceeding.  In case of offences specified in

clause (c)   they are required to be committed by a party to a proceeding in

that Court with respect to a document produced or given in evidence in that

Court.  The Court approved the view taken by Allahabad High Court in

Emperor vs. Kushal Pal Singh (supra) and held as under in para 7 of the

report :

“(i)  The underlying purpose of enacting Section

195(1)(b) and (c) Section 476 seems to be to control the

temptation on the part of the private parties to start

criminal prosecution on frivolous vexations or

unsufficient grounds inspired by a revengeful desire to

harass or spite their opponents.  These offences have

been selected for the court’s control because of their

direct impact on the judicial process.  It is the judicial

process or the administration of public justice which is

the direct and immediate object or the victim of these

offences.  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

who might ultimately suffer can persuade the Civil Court

to file complaint.

(ii)  the offences about which the court alone 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 proceeding 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 be more appropriate to

adopt the strict construction of confirming the prohibition

contained in Section 195(1)(c) only to those cases in

which the offences specified therein were committed by a

party to the proceeding in character as such party.  The

Legislature could not have intended to extend the

prohibition contained in Section 195(1)(c) to the offences

mentioned therein, when committed by a party to a

proceeding in that court prior to his becoming such

party.”.    

  

The court clearly rejected any construction being placed on the

provision by which a document forged before the commencement of the

proceeding in which it may happen to be used in evidence later on, to come

within the purview of Section  195, as that would unreasonably restrict the

right to initiate prosecution possessed by a person and recognized by Section 

190 Cr.P.C.

  

13.       The aforesaid decision was considered in Raghunath vs. State of U.P.

1973(1) SCC 564.  Here, the accused had obtained sale deed of the property

of a widow by setting up of an imposter and thereafter filed a mutation 

application before the Tehsildar  The widow contested the mutation

application on the ground that she had never executed the sale deed and

thereafter filed a criminal complaint under Sections 465, 468 and 471 IPC in

which the accused were convicted.  In appeal, it was contended that the

private complaint was barred by virtue of Section  195(1)(c) Cr.P.C. and the

revenue court alone could have filed the complaint.  The court repelled the

aforesaid contention after relying upon the ratio of Patel Lalji Bhai vs. State

of Gujarat and the private complaint was held to be maintainable.  In Mohan

Lal  vs. State of Rajasthan 1974(3) SCC 628, the above noted two decisions

were relied upon for holding that provisions of Section  195(1)(c) (old Code)

would not be applicable where mutation proceedings were commenced after

a will had been forged.  In Legal Remembrancer, Govt. of West Bengal vs.

Haridas Mundra  1976(1) SCC 555 Bhagwati, J. (as His Lordship then was), 

speaking  for a three Judge Bench observed that earlier there was divergence

of opinion in various High Courts, but the same was set at rest by this Court

in Patel Lalji Bhai Somabhai (supra) and approved the view taken therein

that the words of Section  195(1)(c) clearly meant the offence alleged to

have been committed by a party to the proceeding in his character as such

party, i.e. after having become a party to the proceeding, and Sections

195(1)(c), 476 and 476-A (of the old Code) read together indicated beyond

doubt that the legislature could not have intended to extend the prohibition

contained in Section  195(1)(c) to the offences mentioned in the said Section 

when committed by a party to a proceeding prior to his becoming such party.

Similar view has been taken in  Mahadev Bapuji Mahajan vs. State of

READ  Accused to be provided copies of FIR within 2 days of filing RTI

Maharashtra 1994(3) Supp SCC 748 where the contention that the absence

of a complaint by the revenue court was a bar to taking cognizance by the

criminal court in respect of offences under Sections 446, 468, 471 read with

Section  120-B IPC which were committed even before the start of the

proceedings before the revenue court, was not accepted.

14.       Dr. Singhvi, learned senior counsel for the appellants, in support of

his contention has placed strong reliance on Gopalkrishna Menon vs. D.

Raja Reddy 1983 (4) SCC 240  which is a decision rendered by a Bench of

two learned Judges.  In this case, the appellants filed a civil suit for refund of

Rs.20,000/- which they claimed to have deposited with the first respondent

and for recovery of certain amount. Along with the plaint the appellants

produced a receipt for Rs.20,000/- in support of their claim.  Thereafter the

first respondent filed a criminal complaint against the appellants alleging

forgery of his signature on the money receipt and thereby commission of

offences punishable under Sections 467 and 471 IPC. The appellants moved

the High Court for quashing of the proceedings on the ground that in

absence of a complaint by the court, the prosecution was barred under

Section 195(1)(b)(ii) Cr.P.C.  The High Court dismissed the petition holding

that Section 463 cannot be construed to include Section 467 IPC as well and,

therefore, the Magistrate was competent to take cognizance on the

complaint.  This Court reversed the view taken by the High Court observing

that as Section  463 defines the offence of forgery and Section  467 punishes

forgery of a particular category, Section 195(1)(b)(ii) Cr.P.C. would be

attracted  and in the absence of a complaint by the Court the prosecution

would not be maintainable.   After briefly referring to Patel Lalji Bhai

(supra), the Court observed that “not the conclusion but the ratio” of the said

case supported the view taken by it.  The judgment does not show that

applicability of Section 195(1)(b)(ii) was examined with regard to the

question as to whether the alleged forged receipt was prepared before or

after commencement of the civil suit, nor any such principle has been laid

down that the bar would operate even if the forgery was committed prior to

commencement of the proceeding in the civil court.

15.       The other case which is the sheet-anchor of the argument of learned

counsel for the appellants is Surjit Singh vs. Balbir Singh 1996(3) SCC

533.  The facts as stated in paras 1 & 11 of the report show that a criminal

complaint was filed by the respondent under Sections 420, 467, 468, 471

read with 120-B IPC alleging that the appellants had conspired and

fabricated an agreement dated 26.7.1978 and had forged the signature of

Smt. Dalip Kaur and on the basis thereof, they had made a claim to remain

in possession of a house.  The Magistrate took cognizance of the  offence on

27.9.1983.  The appellants thereafter filed a civil suit on 9.2.1984 wherein

they produced the agreement.  It may be noticed that the cognizance by the

criminal Court had been taken much before filing of the Civil Suit wherein

the agreement had been filed.  During the course of discussion, the court not

only noticed Gopalkrishna Menon  (supra), but also quoted extensively from

Patel Lalji Bhai (supra).  Reference was then made to Sanmukh Singh vs.

The King AIR 1950 Privy Council 31 and Sushil Kumar vs.  State of

Haryana  AIR 1988 SC 419 wherein it has been held that the bar of Section 

195 would not apply if the original document had not been produced or

given in evidence in Court.  Then comes the passage in the judgment (para

10 of the reports) which we have reproduced in the earlier part of our

judgment. The observations therein should not be understood as laying down

anything contrary to what has been held in Patel Lalji Bhai, but was made in

the context that bar contained in Section 195 (1)(b)(ii) would not be attracted

unless the original document was filed.  It is for this reason that in the very

next paragraph, after observing that the cognizance had been taken prior to

filing of the civil suit and the original agreement in Court, the view taken by

the High Court that the Magistrate could proceed with the trial of the

criminal case was upheld and the appeal was dismissed.

16.       As mentioned earlier, the words “by a party to any proceeding in any

Court” occurring in Section  195 (1)(c) of the old Code have been omitted in

Section 195(1)(b)(ii) Cr.P.C. Why these words were deleted in the

corresponding provision of Code of Criminal Procedure, 1973 will be

apparent from the 41st report of the Law Commission which said as under in

para 15.39 :

“15.39   The purpose of the section is to bar private

prosecutions where the course of justice is sought to be

perverted leaving to the court itself to uphold its dignity

and prestige.  On principle there is no reason why the

safeguard in clause (c) should not apply to offences

committed by witnesses also.  Witnesses need as much

protection against vexatious prosecutions as parties and

the court should have as much control over the acts of

witnesses that enter as a component of a judicial

proceeding, as over the acts of parties.   If, therefore, the

provisions of clause (c) are extended to witnesses, the

extension would be in conformity with the broad

principle which forms the basis of Section 195.”

  

            Since the object of deletion of the words “by a party to any

proceeding in any Court” occurring in Section 195(1)(c) of the old Code is

to afford protection to witnesses also, the interpretation placed on the said

provision in the earlier decisions would still hold good.

17.       Section 190 Cr.P.C. provides that a Magistrate may take cognizance 

of any offence (a) upon receiving a complaint of facts which constitute such

offence, (b) upon a police report of such facts, and (c) upon information

received from any person other than a police officer, or upon his own

knowledge, that such offence has been committed.  Section 195 Cr.P.C. is a

sort of exception to this general provision and creates an embargo  upon the

power of the Court to take cognizance of certain types of offences

enumerated therein. The procedure for filing a complaint by the Court as

contemplated by Section 195(1) Cr.P.C. is given in Section 340 Cr.P.C. and

sub-section (1) and (2) thereof are being reproduced below :

340.     Procedure  in  cases  mentioned  in  Section  195    –

(1) When, upon an application made to it in this behalf or

otherwise, any Court is of opinion that it is expedient in the

interests of justice that an inquiry should be made into any

offence referred to in clause (b) of sub-section (1) of Section

195, which appears to have been committed in or in relation to

a proceeding in that Court or, as the case may be, in respect of a

document produced or given in evidence in a proceeding in that

Court, such Court may, after such preliminary inquiry, if any,

as it thinks necessary, –

(a)        record a finding to that effect;

(b)        make a complaint thereof in writing;

(c)        send it to a Magistrate of the first class having

jurisdiction;

(d)        take sufficient security for the appearance of the accused

before such Magistrate, or if the alleged offence is non-

bailable and the Court thinks it necessary so to do, send

the accused in custody to such Magistrate; and

(e)        bind over any person to appear and give evidence before

such Magistrate.

(2)        The power conferred on a Court by sub-section (1) in

respect of an offence may, in any case where that Court has

neither made a complaint under sub-section (1) in respect of

that offence nor rejected an application for the making of such

complaint, be exercised by the Court to which such former

Court is subordinate within the meaning of sub-section (4) of

Section 195.

  

            Section 341 Cr.P.C. provides for an appeal to the Court to which such

former Court is subordinate within the meaning of sub-section (4) of Section 

195, against the order refusing to make a complaint or against an order

directing filing of a complaint and in such appeal the superior Court may

direct withdrawal of the complaint or making of the complaint.   Sub-section

(2) of Section 343 lays down that when it is brought to the notice of a

Magistrate to whom a complaint has been made under Section  340 or 341

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. 

18.       In view of the language used in Section 340 Cr.P.C. the Court is not

bound to make a complaint regarding commission of an offence referred to

in Section 195(1)(b), as the Section  is conditioned by the words “Court is of

opinion that it is expedient in the interest of justice.”  This shows that such a

course will be adopted only if the interest of justice requires and not in every

case.  Before filing of the complaint, the Court may hold a preliminary

enquiry and record a finding to the effect that it is expedient in the interests

of justice that enquiry should be made into any of the offences referred to in

Section 195(i)(b).  This expediency will normally be judged by the Court by

weighing not the magnitude of injury suffered by the person affected by

such forgery or forged document, but having regard to the effect or impact,

such commission of offence has upon administration of justice.  It is possible

that such forged document or forgery may cause a very serious or substantial

injury to a person in the sense that it may deprive him of a very valuable

property or status or the like, but such document may be just a piece of

evidence produced or given in evidence in Court, where voluminous

evidence may have been adduced and the effect of such piece of evidence on

the broad concept of administration of justice may be minimal.  In such

circumstances, the Court may not consider it expedient in the interest of

justice to make a complaint.  The broad view of clause (b)(ii), as canvassed

by learned counsel for the appellants, would render the victim of such

forgery or forged document remedyless.  Any interpretation which leads to a

situation where a victim of a crime is rendered remedyless, has to be

discarded.

19.       There is another consideration which has to be kept in mind.  Sub-

section (1) of Section 340 Cr.P.C. contemplates holding of a preliminary

enquiry.  Normally, a direction for filing of a complaint is not made during

the pendency of the proceeding before the Court and this is done at the stage

when the proceeding is concluded and the final judgment is rendered. 

Section 341 provides for an appeal against an order directing filing of the

complaint.  The hearing and ultimate decision of the appeal is bound to take

time.  Section 343(2) confers a discretion upon a Court trying the complaint

to adjourn the hearing of the case if it is brought to its notice that an appeal

is pending against the decision arrived at in the judicial proceeding out of

which the matter has arisen.  In view of these provisions, the complaint case

may not proceed at all for decades specially in matters arising out of civil

suits  where decisions are challenged in successive appellate fora which are

time consuming.  It is also to be noticed that there is no provision of appeal

against an order passed under Section 343(2), whereby hearing of the case is

adjourned until the decision of the appeal.  These provisions show that, in

reality, the procedure prescribed for filing a complaint by the Court is such

that it may not fructify in the actual trial of the offender for an unusually

long period.   Delay in prosecution of a guilty person comes to his advantage

READ  Magistrate Can't Order Further Investigation At Post Cognizance Stage

as witnesses become reluctant to give evidence and the evidence gets lost. 

This important consideration dissuades us from accepting the broad

interpretation sought to be placed upon clause (b)(ii).   

20.       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. 

21.       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 Statutory Interpretation by Francis Bennion (Third ed.) para 313, the

principle has been stated in the following manner :

“The court seeks to avoid a construction of an enactment

that produces an unworkable or impracticable result,

since this is unlikely to have been intended by

Parliament.  Sometimes however, there are overriding

reasons for applying such a construction, for example

where it appears that Parliament really intended it or the

literal meaning is too strong.”

  

            The learned author has referred to Sheffield City Council v. Yorkshire

Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under :

“Parliament is taken not to intend the carrying out of its

enactments to be unworkable or impracticable, so the

court will be slow to find in favour of a construction that

leads to these consequences.   This follows the path taken

by judges in developing the common law. ‘ the

common law of England has not always developed on

strictly logical lines, and where the logic leads down a

path that is beset with practical difficulties the courts

have not been frightened to turn aside and seek the

pragmatic solution that will best serve the needs of

society.”

  

            In S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2

All ER 91, while interpreting a provision in the Finance Act , 1972, Lord

Denning observed that if the literal construction leads to impracticable

results, it would be necessary to do little adjustment so as to make the

section workable. Therefore, in order that a victim of a crime of forgery,

namely, the person aggrieved is able to exercise his right conferred by law to

initiate prosecution of the offender, it is necessary to place a restrictive

interpretation on clause (b)(ii).

22.       Dr. Singhvi has also urged that since we are dealing with a penal

provision it should be strictly construed and in support of his proposition he

has placed reliance upon a Constitution Bench decision in Tolaram Relumal

vs. State of Bombay, 1955(1) SCR 158, wherein it was  held that it is well

settled rule of construction of penal statutes that if two possible and

reasonable constructions can be put upon a penal provision, the Court must

lean towards that construction which exempts the subject from penalty rather

than the one which imposes penalty and it is not competent for the Court to

stretch out the meaning of expression used by the legislature in order to

carry out the intention of the legislature.  The contention is that since Section 

195(1)(b)(ii) affords protection from private prosecution, it should not be

given a restrictive interpretation to curtail its scope.   We are unable to

accept such broad proposition as has been sought to be urged.  In Craies on

Statute Law (1971 ed.  Chapter 21), the principle regarding penal

provisions has been stated as under :

“But penal statutes must never be construed so as to

narrow the words of the statute to the exclusion of cases

which those words in their ordinary acceptations would

comprehend. . But where the thing is brought

within the words and within the spirit, there a penal

enactment is to be construed, like any other instrument,

according to the fair commonsense meaning of the

language used, and the court is not to find or make any

doubt or ambiguity in the language of a penal statute,

where such doubt or ambiguity would clearly not be

found or made in the same language in any other

instrument.”

  

            In Lalita Jalan vs. Bombay Gas Co. 2003 (6) SCC 107 this question

was examined in considerable detail and it was held that the principle that a

statute enacting an offence or imposing a penalty is to be strictly construed is

not of universal application which must necessarily be observed in every

case.  The Court after referring to Murlidhar Meghraj Loya vs. State of

Maharasthra AIR 1976 SC 1929, Kisan Trimbak Kothula vs. State of

Maharashtra AIR 1977 SC 435, Superintendent and Remembrancer of Legal

Affairs to Govt. of West Bengal vs. Abani Maity AIR 1979 SC 1029 and

State of Maharashtra vs. Natwarlal Damodardas Soni AIR 1980 SC 593 held

that the penal provisions should be construed in a manner which will

suppress the mischief and advance the object which the legislature had in

view.

23.       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.  

24.       Coming to the last contention that an effort should be made to avoid

conflict of findings between the civil and criminal Courts, it is necessary to

point out that the standard of proof required in the two proceedings are

entirely different.  Civil cases are decided on the basis of preponderance of

evidence while in a criminal case the entire burden lies on the prosecution

and proof beyond reasonable doubt has to be given.  There is neither any

statutory provision nor any legal principle that the findings recorded in one

proceeding may be treated as final or binding in the other, as both the cases

have to be decided on the basis of the evidence adduced therein.  While

examining a similar contention in an appeal against an order directing filing

of a complaint under Section 476 of old Code, the following observations

made by a Constitution Bench in M.S. Sheriff vs. State of Madras AIR 1954

SC 397 give a complete answer to the problem posed :

“(15)    As between the civil and the criminal proceedings

we are of the opinion that the criminal matters should be

given precedence.  There is some difference of opinion in

the High Courts of India on this point.  No hard and fast

rule can be laid down but we do not consider that the

possibility of conflicting decisions in the civil and

criminal Courts is a relevant consideration.  The law

envisages such an eventuality when it expressly refrains

from making the decision of one Court binding on the

other, or even relevant, except for certain limited

purposes, such as sentence or damages.  The only

relevant consideration here is the likelihood of

embarrassment.

(16)      Another factor which weighs with us is that a civil

suit often drags on for years and it is undesirable that a

criminal prosecution should wait till everybody

concerned has forgotten all about the crime.  The public

interests demand that criminal justice should be swift and

sure; that the guilty should be punished while the events

are still fresh in the public mind and that the innocent

should be absolved as early as is consistent with a fair

and impartial trial.  Another reason is that it is

undesirable to let things slide till memories have grown

too dim to trust.

This, however, is not a hard and fast rule.  Special

considerations obtaining in any particular case might

make some other course more expedient and just.  For

example, the civil case or the other criminal proceeding

may be so near its end as to make it inexpedient to stay it

in order to give precedence to a prosecution ordered

under S. 476.  But in this case we are of the view that the

civil suits should be stayed till the criminal proceedings

have finished.”

  

25.       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.

26.       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.

27.       The appeal is, accordingly, dismissed. 

Criminal Appeal No. 904/1998

  

28.   This appeal has been preferred by the complainant against the judgment

and order dated 6.2.1998 of the Madras High Court by which the criminal

revision petition preferred by the second respondent Ramaraj was allowed

and he was acquitted of the charges under Section 467 and 471 IPC on the

ground that in view of the bar created by Section 195(1)(b)(ii) Cr.P.C., the

learned Magistrate could not have taken cognizance on the police report.  

According to the case of the prosecution, the sale deed had been forged

earlier and thereafter the same was filed in the Civil Court.   For the reasons

already discussed, the appeal is allowed and the judgment of the High Court

is set aside.   The criminal revision petition filed by the second respondent

shall be heard and decided by the High Court afresh and in accordance with

law.

  

Criminal Appeal Nos. 1069-1070 of  1998

30.       The High Court in the impugned order dismissed the petition filed by

the appellant under Section 482 Cr.P.C. relying upon the decision of this

Court in Sachida Nand Singh.   In view of the reasons already discussed,

the appeals lack merit and are hereby dismissed.

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