Prosecution for Offences Relating to Documents given in Evidence
Relevant Provisions of Law
- Section 195(1)(b)(ii) : Prosecution for offences relating to documents given in evidence.
- Section 340 : Procedure in cases mentioned in Section 195
Note:- Corresponding provisions of Section 195(1)(b)(ii) in the old code was 195(1)(c) and of Section 340 was Sections 476 and 476-A.
- a) Section 195(1)(c) in the old code was as under:-
“No Court shall take cognizance –
(a) and (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.”
- b) Section 195(1)(b)(ii) in the new code is as under:-
“ (a) No Court shall take cognizance –
(a) and (b)(i) …………………………
(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”
Difference between the two
The only difference in these two provisions is the omission of the words “by a party to any proceeding in any Court”.
Basic Principles of Law
- Prohibition of Section 195 is applicable only to the offences mentioned therein. For other offences accused can be tried even without the complaint of the concerned Court.
- Prohibition of Section 195 is applicable only when such offences have been committed in respect of a document produced or given in evidence i.e. while the document was in the custody of the Court. If the forgery was committed before the production of the documentary record then the accused can be tried even without the complaint of the concerned Court.
- Prohibition of Section 195 is applicable only when such offences have been committed by a party to the proceedings in the character as such party. When the offences are committed by a party to a proceeding, prior to his becoming such party the accused can be tried even without the complaint of the concerned Court.
- When an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such other offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of S. 195 of the Code.
- Protection of this provision is available not only to the party to the proceeding but also to persons who were intimately connected with the document such as scribe, witnesses etc.
- When a criminal Court takes cognizance before the filing of the document in the Civil Court, the prohibition of Section 195(1)(b)(ii) is not applicable.
- In respect of offences affecting Administration of Justice, complaint U/s 340 Cr.P.C. may be lodged even by a stranger to the proceedings.
- Court of Sessions has no inherent power to order investigation and also not to direct a particular officer to conduct investigation.
9.
Object and Purpose
(i) In case Patel Laljibhai Somabhai v. The State of Gujarat, (1971 Cri.L.J. 1437) the Hon’ble Full Bench of the Supreme Court explained the object and purpose of this provision as under:-
Para “7. “The underlying purpose of enacting S.195(1)(b) and (c) and S.476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient 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, in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private 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.”
Para “10. The purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in Section 195(1)(b) and (c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the Courts in which forged documents are produced or false evidence is led and the conclusions of the criminal Courts dealing with the private complaint. It is for this reason as suggested earlier, that the Legislature has entrusted the Court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest of a criminal trial of the guilty party.”
(i) Again in case Surjit Singh & others V/s Balbir Singh, 1996 Cri.L.J. 2304, the Hon’ble Full Bench of the Supreme Court explained the object of this provision as under:-
Para “7. The object thereby is to protect persons from needless harassment by prosecution for private vendetta; to preserve purity of the judicial process and unsullied administration of justice; to prevent the parties of the temptation to preempt the proceedings pending in a Court and to pressure and desist parties from proceeding with the case. Equally when the act complained of relates to an offence, i.e., contempt of lawful authority of public servant, or against public justice or for offence relating to documents produced or give in evidence, public justice demands absolute bar of private prosecution and that power be given to the Court to lay complaint under Section 340 of the Code as per the procedure prescribed therein. ……”
Scope
(i) This section envisages bar against prosecution by private parties in respect of offences mentioned therein, except on complaint of Civil Court.
(ii) It is limited in its operation to offences committed while document is in the custody of the Court.
(iii) This Section is not applicable to a case in which such a document is fabricated prior to its production in evidence.
In case Harbans Singh & others v/s State of Punjab 1986 Cril.L.J.1834(1), the Full Bench of the Hon’ble Punjab & Haryana High Court explained the scope of this section while observing as under:-
Para “18. Section 195(1)(b)(ii) of the new Code is limited in its operation only to the offences mentioned in this section if committed in regard to a document produced or given in evidence in such proceedings, while the document is in the custody of the Court. It has no application to a case in which such a document is fabricated prior to its production or given in evidence.”
Applicability
The pre-requisite conditions to attract the provisions of this Section are as under:-
(i) Offence should be described as in section 463 or punishable under section 471, 475 or 476 of the Indian Penal Code.
(ii) Such an offence should have been committed in respect of a document produced or given in evidence.
(iii) Such a production or giving in evidence of a document should be in a proceeding in any Court.
(iv) Such offence should have been committed by a party to the proceedings or by a person intimately connected with the document, such as a witness, scribe etc.
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First decision of the Full Bench of the Hon’ble Supreme Court on the Subject Patel Laljibhai Somabhai vs. The State of Gujarat, (1971 Cri.L.J. 1437)
Prior to the decision of this case, there was a conflict of judicial opinion. The conflict was regarding the scope and effect of Section 195(1)(c) (now Section 195(1)(b)(ii) 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 Ss.467 and 471, I.P.C. in respect of that document. To settle the dispute a Full Bench of the Hon’ble Supreme Court was constituted.
Brief Facts of the case
The appellant/accused 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 (complainant) and his brother Vora Ahmed Huseian Yusufali for the recovery of Rs.2,000/- on the basis of a cheque dated November 22, 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, Dholka. The Court did not believe the plaintiff’s story about the cheque. On November 16, 1965 the complainant filed a complaint in the Court of the Judicial Magistrate, First Class, Dholka against two accused persons for offences punishable under Ss.467 and 471, I.P.C. The two accused were Vora Saifuddin Akbarali and the appellant. Vora Saifuddin Akbarali (accused no. 1) was described in the complaint as the complainant’s sister’s husband. It was averred in the complaint that the complainant’s elder brother Ahmedbhai had started a business in milk in Ahmedabad and accused no. 1 used to help him in that business from time to time. This business was started in the shop of the brother of accused no. 1 who was also dealing in milk. Ahmedbhai used to stay at the house of accused no 1. The books, coupons and cheque books of the milk business were kept at the residence of accused no. 1. This business was carried on till July, 1962 when it was closed and Ahmedbhai left Ahmedabad for Limbdi for staying there. The appellant was appointed as the commission agent through accused no. 1 and milk was collected from various milkmen through him (the appellant). When the business was closed on July 28, 1962 a sum of Rs. 231.1.0 remained to be paid to the appellant and nine cans of milk remained in balance with him. A notice was given in this connection after settling all the accounts and the appellant paid Rs. 200/- in cash to Ahmedbhai and thereafter nothing was due to the appellant.
On November 30, 1962 the defendants in the suit at the instance of accused no. 1 started a milk shop at Jamalpur and they used to stay at the house of accused no. 1 who was employed in the Mercantile Bank and through whom an account was opened with that bank in the name of the defendants. Accused no. 1 used to utilise this account for himself and his brothers. Being a relative, accused no. 1 was trusted by the complainant and his brother and they used to act according to the instructions of accused No. 1. In June, 1962 accused No. 1 came to Limbdi and asked for a loan of Rupees 15,000/- from the complainant’s father. But this request was declined with the result that accused No. 1 got annoyed and threatened him with ruinous consequences. Thereafter accused No. 1 conspired with the appellant to harm the complainant and his brother and father. Cheque books 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 Rs. 2,000/- in his own handwriting on a blank cheque form bearing the complainant’s signature and the appellant utilised that cheque.
The appellant/accused and accused No. 1 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.
Proceedings before the Committing Magistrate
The petitioner/accused pleaded that the prohibition of Section 195 (1) (c) Cr.P.C. is applicable in this case, hence he may be discharged. The Committing Magistrate held that the prohibition of this Section is inapplicable.
Proceedings before the Trial Court
The Sessions Judge referred the matter to the High Court and recommended the quashing of the order of the Committing Magistrate.
Findings of the Hon’ble High Court
The High Court upheld the order of the Committing Magistrate.
Feeling aggrieved, the appellant/accused filed an appeal in the Hon’ble Supreme Court.
As the matter was first of its kind, the Hon’ble Supreme Court constituted a Full Bench to settle the dispute.
Principles of law laid down by the Hon’ble Supreme Court
- Prohibition of Section 195 is applicable only to the offences mentioned therein. For other offences accused can be tried even without the complaint of the concerned Court.
Para “7. 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 strict construction of confining 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 the character as such party.”
- Prohibition of Section 195 is applicable only when such offences have been committed in respect of a document produced or given in evidence i.e. while the document was in the custody of the Court. If the forgery was committed before the production of the documentary record then the accused can be tried even without the complaint of the concerned Court.
Para “7. ….. It is no doubt true that quite often – if not almost invariably – the documents are forged for being used or produced in evidence in Court before the proceedings are started. But that in our opinion cannot be the controlling factor, because to adopt that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years later by some other party would also be subject to Ss.195 and 476 Cr. P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by S.190 Cr. P.C. without promoting the real purpose and object underlying these two sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint.”
- Prohibition of Section 195 is applicable only when such offences have been committed by a party to the proceedings in the character as such party. When the offences are committed by a party to a proceeding, prior to his becoming such party the accused can be tried even without the complaint of the concerned Court.
Para “7. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining 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 the character as such party.” …….
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……. All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c) Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that Court prior to his becoming such party.”
Finding on the facts of this case
Para “11. In this case the offence under Section 471, I.P.C. is clearly covered by the prohibition contained in Section 195(1)(c) but the offence under Section 467, I.P.C. can in our view be tried in the absence of a complaint by the Court unless it is shown by the evidence that the documents in question were forged by a party to the earlier proceeding in his character as such party, in other words, after the suit had been instituted.”
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One more Full Bench case reiterating the above Principles of law Legal Remembrancer of Govt. of W.B. v/s Haridass Mundra (1976 Cri.L.J.1732)
Brief Facts of the case
One Haridas Mundra was the Managing Director of S. B. Industrial Development Co. (Pvt.) Ltd. who was the managing agents of a company called Richardson and Cruddas Ltd. He and his brother Tulsidas Mundra were also directors of Richardson and Cruddas Ltd. The Life Insurance Corporation of India, which was the largest shareholder, filed a petition in the High Court of Calcutta being Matter No. 357 of 1957 seeking relief against mismanagement of Richardson and Cruddas Ltd. under Sections 397 and 398 of the Companies Act, 1956. The respondent/accused and other directors were impleaded as party-respondents to the petition. The High Court, on the application of the Life Insurance Corporation, made an interim order sometime in December 1957 appointing Sir Dhirendra Mitra as Special Officer to manage the affairs of Richardson and Cruddas Ltd.
The Special Officer appointed a reputed firm of Chartered Accountants namely Ferguson and Company. This company after examining the records found that there were two bills in the records of the Company, one for Rs.4,12,000/- dated 20th June, 1955 and the other for Rs. 6,18,900/- dated 27th June, 1955 purporting to be issued by a firm called Indian Machine Tools Co. having its address at 7, Mission Row, Calcutta, showing purchase of certain machinery by Richardson and Cruddas Ltd. from Indian Machine Tools Co. and on the strength of these two bills, entries were made in the books of account of Richardson and Cruddas Ltd. on 24th June, 1955 in respect of the first bill and on 29th June, 1955 in respect of the second bill, crediting the amounts of the bills to S. B. Industrial Development Co. (Pvt.) Ltd. and debiting to the machinery account. On making inquiries, Ferguson and Co. discovered that there was no firm of Indian Machine Tools Co. in existence at 7, Mission Row, Calcutta and no machinery was in fact purchased or received by Richardson and Cruddas Ltd. as shown in the two bills supposed to have been made out by Indian Machine Tools Co. The conclusion reached by Ferguson and Co. as a result of this probe was that Richardson and Cruddas Ltd. had been defrauded of an aggregate sum of Rs. 10,60,900/- representing the amounts of the two bills and that amount had been siphoned off to S.B. Industrial Development Co. (Pvt.) Ltd. by using these two bills, which were forged, as genuine and they made a report to this effect to the Special Officer.
Action taken by Special Officer
The Special Officer, on receipt of the report, made an application to the Company Judge for a direction that he might be authorised to lodge a complaint with the police for further investigation into these facts set out in the report. The Company Judge gave the necessary direction and the Special Officer thereupon moved the police for making further investigation in the matter.
Findings of the Special Police Establishment
The Special Police Establishment started the investigation and ultimately submitted a charge-sheet against the respondent and Tulsidas Mundra in the Court of the Chief Presidency Magistrate.
Proceedings before the Magistrate and before the High Court (having original jurisdiction)
The respondent and Tulsidas Mundra were committed by the Chief Presidency Magistrate to stand their trial before the High Court on charges under Ss.120B, 409, 471 read with S.468 and S.477A against the respondent and Ss.120B and 409 of the Indian Penal Code against Tulsidas Mundra.
When the trial commenced before the High Court, the Public Prosecutor made two applications on 17th April, 1967, one for amending the charges against the respondent by dropping Sections 120B and 409 and adding Section 418 and the other for withdrawing the prosecution against Tulsidas Mundra. Both these applications were allowed by the High Court.
The trial proceeded only against the respondent/accused on charges under Secs. 418, 471 read with Section 468 and Section 477A.
Order of the High Court
The High Court, by an elaborate judgment held that as the accused is being tried U/s 471 IPC along with other offences, Sec. 195(1)(c) of the Code of Criminal Procedure, 1898, is applicable in the present case. High Court had no jurisdiction to proceed further with the trial of the accused. Accordingly accused was discharged by an order dated 27th April, 1967.
Feeling aggrieved, the State of West Bengal filed an appeal before the Hon’ble Supreme Court.
Proceedings before the Hon’ble Supreme Court
Plea of the State Counsel
The contention of the State Counsel was that the prohibition of Section 195 is applicable only to the offences mentioned therein. The accused was charge-sheeted for the offences U/ss 418, 471 and 477-A IPC. The provisions of this Section are not applicable to the offences U/s 418 and 477-A IPC. Another submission was that the documents were forged by the accused much prior to the start of the proceedings. At the time of forgery of the documents, the accused was not a party to any proceeding.
Questions of Law
- Whether an accused can be tried for offences, other than those mentioned in Section 195 Cr.P.C., without the complaint of the concerned Court?
- Whether the provisions of Section 195 are applicable to a person who committed the offence before becoming a party to the proceedings?
- Whether the provisions of Section 195 Cr.P.C. are applicable to the documents which were forged before producing in Court as evidence?
Findings of the Hon’ble Supreme Court
While deciding this case, the Full Bench of the Hon’ble Supreme Court laid down the following principles of law:-
- Prohibition of Section 195(1)(c) is applicable only to the offences mentioned therein. For other offences the accused can be tried even without the complaint of the concerned Court.
Para “4. Section 195(1)(c) provides that no court shall take cognisance of an offence described in Section 463 or punishable under Sections 471, 475 and 476 of the Indian Penal Code where such offence is alleged to have been committed by a party to any proceeding in any court in respect of any 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. Obviously on its plain language, the inhibition in Section 195(1)(c) applies only where a person is being tried for an offence described in Section 463 or punishable under Sections 471, 475 or Section 476. Here, the respondent was being tried for three distinct offences under Sections 418, 471 and 477A. So far as the offences under Ss.418 and 477A are concerned, they were plainly not covered by Section 195(1)(c) and even if Section 195(1)(c) were otherwise applicable, it is difficult to see how the trial of the respondent for these two offences could be said to be vitiated on the ground that no complaint in writing was made by the Company Judge. The High Court had, therefore, clearly and indubitably jurisdiction to proceed with the trial against the respondent in respect of the offences under Sections 418 and 477A.”
- Prohibition of Section 195(1)(c) is applicable only to a party who committed the offence after becoming a party to the proceedings.
Para “4. The offence under S.471 which was charged against the respondent was that he had used the two forged bills of Indian Machine Tools Co. as genuine on 24th and 29th June, 1955 by making, on the strength of these two bills, false entries in the books of account of Richardson and Cruddas Ltd., crediting the aggregate sum of Rs.10,60,900/- in the account of S.B. Industrial Development Co. (Pvt.) Ltd. and debiting it in the machinery account. This offence was alleged to have been committed by the respondent on 24th and 29th June, 1955 long before the proceeding in Matter No.357 of 1957 commenced and he became a party to that proceeding and it was not committed by him in his capacity as such party, that is, after having become a party to the proceeding………..
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In Patel Laljibhai Somabhai v. The State of Gujarat, (1971) Supp SCR 834 : (AIR 1971 SC 1935) …… This Court pointed out that the words of Sec. 195(1)(c) clearly meant that the offence a should be alleged to have been committed by the party to the proceeding in his character as such party, that is, after having become a party to the proceeding. Sections 195(1)(c), 476 and 476A 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 therein when committed by a party to a processing prior to his becoming such party. The scope and ambit of Section 195(1)(c) was thus restricted by this Court to cases where the offence was alleged to have been committed by a party to or proceeding after he became such party and not before. This view as to the interpretation of Sec. 195(1)(c) was reaffirmed by this Court in Raghunath v. State of U.P., AIR 1973 SC 1100 and Mohan Lal v. The State of Rajasthan, AIR 1974 SC 299. It must inevitably follow, on this view that since the offence charged against the respondent was one alleged to have been committed by him before he became a party to the proceeding in Matter No. 357 of 1957, Section 195(1)(c) had no application.”
- The prohibition of Section 195(1)(c) is not applicable to a document which is forged before producing it in the Court.
Para “4. … It may also be noted that neither of the two forged bills of Indian Machine Tools Co. was produced or given in evidence in the proceeding in Matter No. 351 of 1957. Both these farmed bills formed part of the record of Richardson and Cruddas Ltd. and they were taken possession of by the Special Officer along with the other record of the Company and nobody produced them or tendered them in evidence being the Company Judge in the proceeding in Matter No. 357 of 1957. The requirement of Section 195(1)(c) that the document in question should be produced or given in evidence in the proceeding was, therefore, clearly not satisfied and on this ground also, Section 195(1)(c) was not attracted in the present case. We must, therefore, hold that the High Court was entitled to proceed with the trial of the respondent in respect of the offence under Sec. 471 without any complaint in writing from the Company Judge before whom the proceeding in Matter No. 357 of 1957 was pending.
Finding on the facts
Para “5. We accordingly allow Criminal Appeal No. 256 of 1971, set aside the judgement of Mr. Justice Bagchi discharging the respondent and remand the case to the City Sessions Court, to which the original criminal jurisdiction in Sessions cases has now been transferred, for disposal according to law.”
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State of U.P. V/s Suresh Chandra Shrivastva, (1984 Cri.L.J.926)
Brief Facts of the case
Some time in the year 1967 Shankar Lal Bhargava, who was officiating as Stamp Reporter in the Registry of the Allahabad High Court, with the aid of Suresh Chandra Srivastava and Bishan Swarup, who were clerks of Advocates, removed used stamps and out of them reused three court-fee stamps of the value of Rupees 1,000/- each in First Civil Appeal Nos. 281/67, 282/67 and 357/67. When the matter was detected, an enquiry was ordered and the Judicial Department of the High Court reported to the Registrar that court-fee stamps of the value of Rs. 23,007.50 p. (on 15 sheets) were missing from the judicial file of First Appeal No. 186 of 1960. The enquiry further
revealed that in several other cases also court-fee stamps had been taken out from the original files and reused in new cases. The Registrar of the High Court suspected that a well-organised gang of racketeers was operating in the High Court to defraud the Government by surreptitiously removing the used stamps from the judicial files and reusing them in new cases. The Registrar, with the permission of the Chief Justice of the High Court, reported the matter to the Inspector General of Police, U. P., who ordered the Criminal Investigation Department of U. P. to investigate in to the matter Finally, three charge-sheets were submitted for offences under Sections 262, 263, 467, 471, 420 and 120B of the Indian Penal Code.
The respondents/accused filed an application before the High Court.
Proceedings before the Hon’ble High Court
Plea of the accused
The accused contended that as offences under Sections 467, 471 and 120B, I. P. C. fell within the purview of Section 195 of the Code, no prosecution could be launched without following the procedure, laid down in Section 195, being followed.
Findings of the High Court
The High Court held as under:-
- a) That as the offences under Sections 467, 471 and 120B, I. P. C. fell within the ambit of Section 195 (1)(b)(ii) of the Code, no cognizance could be taken by the Magistrate without a complaint being filed by the competent Court.
- b) That the accused can be tried for other offences.
Feeling aggrieved the accused filed appeal in the Hon’ble Supreme Court.
Proceedings before the Hon’ble Supreme Court
Plea of the accused
Plea of the accused was the same as for before the High Court.
Question of Law
Whether accused can be tried for the offences other than those mentioned in Section 195, without the complaint of the concerned Court?
Findings of the Hon’ble Supreme Court
Principle of law laid down by the Hon’ble Supreme Court
- When an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such other offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of S. 195 of the Code.
While holding so, the Hon’ble Supreme Court observed as under:-
Para “6. In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471 & 120-B IPC are committed, the complain would proceed or not. The law is not well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of S. 195 of the Code.”
Finding on facts
After examining the facts of the case, the Hon’ble Supreme Court came to the following conclusions:-
“It seems to us that the only offences which have been made out would be offences under Sections 262, 263, 380 and 420 which are obviously not covered by Section 195 of the Code.The fact that some persons aided and abetted the detaching of the used stamps from the old files and re-using them in the other cases does not involve any process of forgery or use of a forged document.”
While upholding of the decision of the High Court, the Hon’ble Supreme Court observed as under:-
Para “7. In the instant case, as already pointed out by us, on the facts narrated by the Registrar in his complaint no offences under Sections 467, 471 and 120B, I. P. C. is at all revealed and as such it is not necessary to go into the question as to what offences are connected with Sections 467, 471 and 120B and which are severable from them.
The High Court was fully justified in quashing the proceedings against the accused as far as offences under Section 467, 471 and 120B, I. P. C. were concerned, not because they were covered by Section 195 of the Code but because allegations contained in the complaint did not constitute these offences. The High Court was further fully justified in directing that other offences mentioned above did not require a complaint under Section 195 and would have to be tried.
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Harbans Singh & others v/s State of Punjab (1986 Cril.L.J. 1834(1))
(Full Bench Decision of the Hon’ble Punjab & Haryana High Court)
Brief Facts of the case
While hearing Criminal Misc. Application No.5095-M of 1984 (Harbans Singh etc. v. State), M.M. Punchhi, J. formed the view that a Division Bench decision of Punjab & Haryana High court reported as Karnail Singh v. State of Punjab, 1983 Cri LJ 713 went against the Supreme Court judgment reported as Gopalakrishna Menon v. D. Raja
Reddy, AIR 1983 SC 1053: (1983 Cri LJ 1599). In the view of M.M. Punchhi, J., the principle of Gopalakrishna Menon’s case (supra) had escaped the notice of the learned Judges in Karnail Singh’s case (1983 Cri LJ 713) (Punj and Har) (supra). The latter judgment might be rendered per incuriam.
On this basis, the matter of this case in which the interpretation of section 195(1)(b)(ii) of the Code of Criminal Procedure 1973 was involved was referred to a larger Bench. Criminal Revision No.517 of 1985 Baldev Singh etc. v. State of Punjab was also directed to be heard with Criminal Misc. No.5095-M of 1984.
History of Karnail Singh’s case
In Karnail Singh’s case (1983 Cri LJ 713), the Division Bench of Hon’ble Punjab & Haryana High Court was seized of the question whether the police had the statutory power to investigate the cognizable offences under section 471, 475 or 476 of the Penal Code vis-a-vis the bar under Section 195(1)(b)(ii) of the new Code with regard to the cognizance thereof by a court.
Question of law before the Division Bench
- i) What was the effect of the deletion of the words, “by a party to any proceeding in any Court” from S.195(1)(c) of the Code of Criminal Procedure, 1898, while enacting S.195(1)(b)(ii) of the new Code.
- ii) Whether after amendment, S.195 (1)(b)(ii) of the new Code applied to the case where forgery was committed much earlier than the production or giving the document in evidence in a proceeding, or only if the offences mentioned in this sub-section are committed when the document is in court.
Findings of the Division Bench
The Division Bench, after relying on Patel Laljibhai Somabhai v. State of Gujarat, AIR 1971 SC 1935: (1971 Cri LJ 1437), Raghunath v. State of U.P., AIR 1973 SC 1100: (1973 Cri LJ 858), Mohan Lal v. State of Rajasthan, AIR 1974 SC 299: (1974 Cri LJ 350), Legal Remembrancer of Government of West Bengal v. Haridas Mundra, AIR 1976 SC 2225: (1976 Cri LJ 1732) and Dr. S.L.Goswami v. High Court of Madhya Pradesh, AIR 1979 SC 437: (1979 Cri LJ 193), held as under:-
“On principle as also on the sound canons of construction, it is apt to confine section 195(1)(b)(ii) of the Code to forgeries committed in respect of a document during its custody by the court or its fabrication in the course of the proceedings itself.”
Findings of the Full Bench of the Hon’ble Punjab & Haryana High Court
After considering large number of relevant cases and the report of the Law Commission, the Hon’ble High Court came to the following conclusions:-
Para “18. The net result of the discussion is that Karnail Singh’s case (1983 Cri LJ 713) (Punj and Har) is correctly decided and depicts the correct position of the law. Section 195(1)(b)(ii) of the new Code is limited in its operation only to the offences mentioned in this section if committed in regard to a document produced or given in evidence in such proceedings, while the document is in the custody of the Court. It has no application to a case in which such a document is fabricated prior to its production or given in evidence.”
————
Part-B
Effect of omission of words, “by a party to any proceeding in any Court’” from Section 195(1)(b)(ii) of the new Code.
- Protection of this provision is available not only to the party to the proceeding but also to persons who were intimately connected with the document such as scribe, witnesses etc.
(i) In case Harbans Singh & others v/s State of Punjab 1986 Cril.L.J.1834(1), the Full Bench of the Hon’ble Punjab & Haryana High Court considered the following questions of law
Question of Law
“What was the effect of the deletion of the words, “by a party to any proceeding in any Court” from S.195 (1)(c) of the Code of Criminal Procedure, 1898, while enacting S.195(1)(b)(ii) of the new Code.”
Findings of the Hon’ble Punjab & Haryana High Court
The Hon’ble High Court held that by the deletion of said words the protection of Section 195(1)(B)(ii) has been enlarged. Now the benefit of this provision is available to the witnesses, scribes, attesters etc.
The Hon’ble High Court observed as under:-
Para “4. …… To my mind the deletion of the words ‘by a party to any proceeding in any court’ in section 195(1)(b)(ii) of the Code has only the effect of enlarging the protection envisaged by the section to the witnesses, scribes, attestors, etc., of the document with regard to which the offence has been committed. This class of persons would now be equally within the ambit of the provision irrespective of the fact whether they are parties to the proceedings or not. Apart from this, I am unable to read any other meaningful change brought in the law in this context.”
Para “14. ……. It was further observed that the purpose of the amendment to delete the words” “by a party to any proceedings in any Court” was to extend the benefit to the scribe, witnesses etc., who were intimately connected with the document, about which the suspicion of an offence having been committed is voiced by any party or is found to exist.”
(ii) In case Ram Khelawan and others, v. State of U.P., 1998 Cri.L.J.2331, the Full Bench of the Hon’ ble Allahabad High Court considered this question of law and while reiterating the principle laid down by the Hon’ble Full Bench of the Punjab & Haryana High Court in the above mentioned, Harbans Singh & others v/s State of Punjab 1986 Cril.L.J.1834 (1) case, observed as under:-
Para “16. However before considering these cases it would also be relevant to consider the effect of omission of the words ‘by a party to any proceeding’ from Section 195, as that would, to a large extent settle the controversy raised before this Bench. In this respect after considering the objects and reasons of the amendment as mentioned in the Law Commission’s report, quoted above, we find ourselves to be in agreement with the view taken by Hon. Judges of the Punjab and Haryana High Court in the case of Harbans Singh (AIR 1987 Punjab and Haryana (FB) (supra) and hold that the amendment or deletion of the words was to extend the scope and benefit of Section 195 (1) (b) (ii) in the new Code to witnesses also and not merely to the party to proceedings as was mentioned in the old Code.”
Part-C
Misc. Topics
- When a criminal Court takes cognizance before the filing of the document in the Civil Court, the prohibition of Section 195(1)(b)(ii) is not applicable
In case Surjit Singh & others V/s Balbir Singh, 1996 Cri.L.J.2304
Brief Facts of the case
- a) On 13.06.1983, the complainant/respondent filed a complaint for offences punishable under Section 420, 467, 468,471 read with Section 120-B, I.P.C.with the allegation that the appellants/accused had conspired and fabricated an agreement dated July 26, 1978 and forged the signature of Smt. Dalip Kaur and on the basis thereof they attempted to claim retention of the possession of the remaining part of the house. The Magistrate, Amritsar examined witnesses under Section 202 of the Code of Criminal Procedure, 1973 and ordered issue of process summoning the appellants/accused to appear on September 27, 1983.
- b) The appellants/accused filed civil suit for an injunction to restrain Dalip Kaur from interfering with the possession of appellants 1to 3 and produced the agreement dated 21-2-1984 which was said to have been executed and signed
by Dalip Kaur.
- c) Thereafter, the appellants/accused filed an application to quash the complaint on the ground of bar under Section 195 of the Code.
Findings of the Trial Magistrate, Sessions Judge and of the High Court
The Magistrate and on revision the Session Judge dismissed the same. When the revision was filed in the High Court of Punjab and Haryana, the matter was referred to the Full Bench which decided the matter against the appellants/accused.
Feeling aggrieved, the appellants/accused filed an appeal in the Hon’ble Supreme Court.
Proceedings before the Hon’ble Supreme Court
Plea of the accused/appellant
The plea of the accused/appellant was that once the document has been produced before the Court, it is the civil Court that has seisin of the matter. It alone or an officer on its behalf has to lay the complaint in writing. The private complaint laid by the respondent is not maintainable.
Question of Law
When a criminal Court takes cognizance of a case before the filing of the document in the Civil Court, whether the prohibition of Section 195(1)(b)(ii) is applicable?
Findings of the Hon’ble Supreme Court
The Hon’ble Supreme Court held that if a criminal Court takes cognizance before the filing of the document in another Court, and the document is filed after take a cognizance, the Bar of Section 195(1)(b)(ii) is not applicable.
While holding so the Hon’ble Supreme Court observed as under:-
Para “12. It is seen that in this case cognizance was taken by the criminal Court on
September 27, 1983 and the original agreement appears to have been filed in the
civil Court on February 9, 1984 – long after cognizance was taken by the Magistrate.
It is settled law that once cognizance is taken, two courses are open to the Magistrate,
namely, either to discharge the accused if the evidence does not disclose the offence
or to acquit of the accused after the full trial. Unless either of the two courses is taken
and orders passed, the cognizance duly taken cannot be set at nought. In this case
since cognizance was already taken before filing of the document in the civil
Court and the original has not been filed before cognizance was taken, the High
Court was right in directing that the Magistrate is at liberty to proceed with the
trial of the criminal case.”
- In respect of offences affecting Administration of Justice, complaint
U/s 340 Cr.P.C. may be lodged even by a stranger to the proceedings
In case N. Natrajan v/s B.K. Subarao 2003, Cri.L.J. 820
Brief Facts of the case
An application under Section 340 of the Criminal Procedure Code was laid by the
respondent/complainant in the Designated Court at Bombay. The appellant/PP had been
conducting the cases as the Chief Public Prosecutor before the Designated Judge in
what is popularly known as “Bombay Blast Cases.” The respondent urged in his petition
that the appellant being a public prosecutor had an onerous duty and had to act in a fair
manner. That at one stage of the proceedings both orally and in writing he had submitted
to the Court that the material on record was sufficient to frame charges against various
offences arising under Chapter VI of the Indian Penal Code like waging war against
the State, etc. after adverting to the decisions of this Court. However, at a later stage of
the proceedings in the same case, the appellant urged the Designated Court to drop the
charges under Sections 121 and 121A, IPC against all the 157 accused as there was no
material. Thus PP made statements which were contradictory to the earlier stand taken
by him and left the matter to the discretion of the Court to accept one or the other
version to be true in order to secure the ends of justice. Apart from misconduct on the
part of the appellant arising under the Advocates Act, it was contended that the same
amounted to criminal contempt of Court. The contention advanced on behalf of the
respondent was that the charge of waging war against the State without reasonable or
sufficient material on record results in grave injustice and injury to some of the accused
and if he had carried out his functions with due care and caution, such injustice would
not have occasioned. The respondent also submitted that he was not concerned with
the outcome of the case but more in the conduct of the public prosecutor in making
contradictory submissions. He submitted that this conduct on the part of the appellant
would attract the provisions of Section 192 to 196 and 227, IPC.
Findings of the Designated Court
The Designated Judge held that as offences were affecting the administration of justice,
a complaint, even at the instance of a stranger can be entertained.
Feeling aggrieved, the appellant/PP filed an appeal in the Hon’ble Supreme Court.
Proceedings before the Hon’ble Supreme Court
Plea of the appellant
Plea of the appellant/PP was that the respondent had a habit of making such complaints.
He was not interested in the matter in any way. No public interest would be served by
entertaining an application made by him. And that complainant was a total stranger to
the proceedings.
Question of Law
Whether in respect of offences affecting administration of justice, complaint by a stranger
to the proceedings is maintainable?
Findings of the Hon’ble Supreme Court
While answering this question in the affirmative, the Hon’ble Supreme Court observed
as under:-
Para “8…..It is well settled that in criminal law that a complaint can be lodged by
anyone who has become aware of a crime having been committed and thereby set the
law into motion. In respect of offences adverted to in S. 195, Cr. P.C. there is a restriction
that the same cannot be entertained unless a complaint is made by a Court because
the offence is stated to have been committed in relation to the proceedings in that
Court S. 340, Cr. P.C. is invoked to get over the bar imposed under S. 195, Cr. P.C. In
ordinary crimes not adverted to under S. 195, Cr. P.C., if in respect of any offence,
law can be set into motion by any citizen of this country, we fail to see how any
citizen of this country cannot approach even under S. 340, Cr. P.C. For that
matter, the wordings of S. 340, Cr. P.C. are significant. The Court will have to act in
the interest of justice on a complaint or otherwise. Assuming that the complaint may
have to be made at the instance of a party having an interest in the matter, still the
Court can take action in the matter otherwise than on a complaint, that is, when it
has received information as to a crime having been committed covered by the said
provision. Therefore, it is wholly unnecessary to examine this aspect of the matter.
We proceed on the basis that the respondent has locus standi to present the
complaint before the Designated Judge.”
- Court of Sessions has no inherent power to order investigation and also not
to direct a particular officer to conduct investigation
In case K. Thankamani & etc. v/s The Inspector General of Police, 2002
Cri.L.J.1092
Brief Facts of the Case
One Bindu filed an application before the Court of Session, under Section 438, Cr.P.C.
seeking anticipatory bail in case registered under Sections 361, 366, 366A, 377 and
109 read with Section 34 of the Indian Penal Code and also under Section 5(1) (a), (c)
and (d) of Immoral Traffic (Prevention) Act. She alleged in the petition that she was
questioned twice by the police and that she apprehends arrest and ill treatment at the
hands of the police. Along with the petition, she filed two affidavits, one in Malayalam
attested by a Notary Public and the other in English attested by Advocate K. Thankamani.
The application for anticipatory bail was filed through an Advocate.
The Public Prosecutor submitted that the petitioner Bindu is not an accused in
Crime No. 282/97, she is only a witness in the crime and that the police has no intention
to arrest her.
The Sessions Court did not dispose off the matter but decided to further consider
the matter. After making enquiry the Court came to the conclusion that the affidavits
filed in support of the petition for anticipatory bail contain false averments and that the
affidavits came into existence due to forgery. Comparison of the signatures contained
in the affidavits was also made by the Court who came to the conclusion that there is
material difference between the signatures contained in the two affidavits. The Court
also ventured to compare the contents of the affidavits with the statement of Bindu
recorded under Section 161, Cr.P.C. and found that there is material difference between
the two. There is every reason to think that the affidavits came into existence on
suspicious circumstances.
Direction of the Sessions Court
The Sessions Court issued following directions:-
- a) The Chief Judicial the Chief Judicial Magistrate was directed to consider whether
facts disclose offences under Sections 182, 211 or any other section of the Indian
Penal Code and in case it prima facie discloses any such offence, to take further
action against the petitioner in accordance with law.
- b) The Inspector General of Police, North Zone, with a direction to constitute a
special team with a senior police officer who is not below the rank of the
respondent in this case, to conduct a through investigation or enquiry into the
matters and take appropriate action in accordance with law.
On receipt of the copy of the order from the Court of Sessions, the Inspector General
of Police, North Zone, directed the Sub-Inspector of Police, Nadakkavu Police Station
to register a crime under Sections 193, 199, 201, 571 and 511 read with Section 363,
IPC and such other sections as may be applicable and constituted a special team for
investigation of the offence alleged. Pursuant to the direction of the Inspector General
of Police, a case was registered by the Nadakkavu Police under the above mentioned
sections.
Feeling aggrieved, accused filed a criminal revision in the Kerala High Court.
Proceedings before the Hon’ble High Court
While hearing the revision petition, the single judge referred the matter to the larger
Bench.
Question of Law referred by single judge to the larger Bench
“Important questions regarding the jurisdiction of the Court of Session and its power to
issue direction to the Chief Judicial Magistrate and the Inspector General of Police to
conduct an enquiry/investigation are involved in these petitions. Whether the directions
could be saved by ‘inherent’ powers of the Court which every Court has (though it will
not come under Section 482, Cr. P.C.) is a matter for consideration. It is also a matter
for consideration that in view of the decision reported in State of Kerala v. Moosa Haji
(1993) 2 Ker LT 609, the : (1994 Cri LJ 1288), the direction issued by the Court of
Session is legal or justifiable on the facts and circumstances of the case.”
Findings of the Division Bench of the Kerala High Court
While holding that the Court of Sessions has no such power, the Hon’ble Supreme
Court observed as under:-
Para “10….In view of S. 156(3) read with S. 193 of Cr. P.C., as already held, ordinarily,
only a Magistrate can order investigation and not a Court of Session. However, if the
Court of Session, in preliminary enquiry, finds, prima facie, that an offence under S.
195(1)(b) is committed, it has to make a complaint in writing and send it to a
Magistrate of the first class having jurisdiction. It cannot direct enquiry/
investigation by Chief Judicial Magistrate or Police and in particular by a specific
police officer like Inspector General of Police as done in this case. If prima facie
case is made out in a preliminary enquiry, Court of Session could have made a
complaint to the Magistrate of the first class. Court need not express any final opinion
as to the guilt of the accused but there should be prima facie material before the
Court. But, the direction for investigation and for taking appropriate action by the
Chief Judicial Magistrate or Inspector General of Police is without jurisdiction……..”
Finding on Facts
Para “10. In view of the above decision, the matter is settled and direction of the
Sessions Court directing the Inspector General of Police to conduct investigation
and take appropriate action and final report filed as per the above direction is
clearly illegal as provisions of Ss. 193 and 195 read with S. 340 of Cr. P.C. were not
complied with for the offences specifically mentioned in S. 195(1)(b). ….”
Cases Referred:-
- Patel Laljibhai Somabhai v. The State of Gujarat, (1971 Cri.L.J. 1437) (Full
Bench)
- Surjit Singh & others V/s Balbir Singh, 1996 Cri.L.J. 2304 (Full Bench)
- Harbans Singh & others v/s State of Punjab 1986 Cril.L.J.1834(1) (Full
Bench)
- Legal Remembrancer v/s Haridass Mundra 1976 Cri.L.J.1732 (Full Bench)
- State of U.P. V/s Suresh Chandra Shrivastva, 1984 Cri.L.J.926 (Full Bench)
- N. Natrajan v/s B.K. Subarao 2003, Cri.L.J. 820
- K. Thankamani & etc. v/s The Inspector General of Police, 2002 Cri.L.J.1092
(Division Bench)
- Ram Khelawan and others, v. State of U.P., 1998 Cri.L.J.2331 (Full Bench)
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