Crl. Misc. No. 7662-M of 1988

5th March, 1991.

Petitioner Counsel: P. L. Verma, for the State.

Cases Cited:
(FB) (Rel. on.), 1986 Cril LJ 1834,AIR 1987 PunjHar 19 [Para 7]
High Court v. Madan Lal Sharma, (1985) Cri Misc. No. 1342-M of 1985 (Punj and Har) (FB) Registrar [Para 7]
1979 Chand LR (Cri) 195,1979 Chand Cri C 176 (Punj and Har) (Rel. on) [Para 9]

JUDGMENT

ORDER:-Sardul Singh has filed this petition u/ S. 482 of the Criminal P.C. 1973, for quashing the first information report No. 293, dt. 12-9-1988, for offences u/ Ss. 205, 209, 420, 467, 468, 506 and 471 read with S. 120-B of the I.P.C. registered at Police Station Sadar Hisar, inter alia, on the ground that the taking of cognizance for the above referred offences by the Court is specifically barred by the provisions of S. 195, sub-sec. (1)(b)(i) (ii) and (iii) read with S. 340 of the Criminal P.C. and that by necessary implication, the investigation into such offences is also barred.

2. The brief resume of facts relevant for the disposal of this petition is that on the application of Mst. Gurnam Kaur, complainant, the above said case was registered at

Police Station Sadar Hisar. In that application, Mst. Gurnam Kaur had averred that she is the owner of the land measuring 98 Kanals 8 Marlas located in the revenue estate of village Beer Babran and has also constructed a house thereon. She has further averred that Sardul Singh accused entered into conspiracy with fourteen other persons, fully described therein, to usurp the land and in pursuance of the same, obtained a decree dt. 9-6-1988 from the Court of Shri S. P. Sharma, Sub Judge IInd Class, Hisar, by producing some other lady impersonating as Gurnam Kaur. The lady who had impersonated as Gurnam Kaur filed a written-statement and also made a statement in the Court admitting the claim of the accused-plaintiff regarding ownership over the land in dispute in favour of Sardul Singh, petitioner, as well as Baldev Singh, Joginder Singh and Shehanshah Singh. It is further alleged that Mst. Gurnam Kaur had entered into an agreement to sell this land to Bhalla Ram and Tek Chand but after the death of the latter, none of the heirs of Tek Chand and Bhalla Ram came to get the sale deed executed and thus the said agreement to sell was cancelled as per its terms. Regarding this agreement, civil suits are pending in the civil Court between the applicant and Bhalla Ram and hairs of Tek Chand deceased. Thus it is maintained that these persons had entered into conspiracy to play fraud upon the complainant for usurping the land. It is also maintained that the complainant is still in possession of the land and got an interim stay order from the civil Court restraining the accused in this case from disturbing her possession over the land in dispute.

3. In the return filed by the respondent-State, it is stated that it is a clear case of playing fraud upon Gurnam Kaur as the accused had produced some other lady instead of Gurnam Kaur before the civil Court and got a decree in their favour. It is further stressed that the report of the Hand-writing Expert clearly shows that the signatures of Gurnam Kaur, complainant, do not tally with the signatures figuring on the written-statement and Vakalatnama filed by the lady impersonating as such in the above referred civil suit.

4. I have heard the learned counsel for the parties besides perusing the record.

5. Admittedly, in the case in hand, the written statement was filed by a lady allegedly impersonating as Gurnam Kaur admitting the claim of Sardul Singh and other plaintiffs regarding the ownership of the land in dispute before the Court of Sub Judge IInd Class, Hisar. The matter does not rest here as aforesaid lady who had allegedly impersonated as Gurnam Kaur had also made a statement in that civil Court admitting the claim of the plaintiffs in the suit. Thus under these circumstances, there is absolutely no doubt that the offence of impersonation, forgery and giving a false evidence etc. punishable u/ Ss. 205, 209, 468 and 469 of the Penal Code were committed in the civil Court itself. The provisions of S. 195(1)(b)(i) (ii) of the Criminal P.C. 1973, read 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 -

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(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Ss. 193 to 196, 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 S. 463, or punishable u/ Ss. 471, S. 475 or S. 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 ..................."

6. A bare glance through the above leaves no doubt that where the offences u/ Ss. 193 to 196, 199, 200, 205 to 211 and 228 are alleged to have been committed in or in relation to any proceedings in any Court or offences under Ss. 463, 471, 475 and 476 of the Penal Code are alleged to have been committed in respect of a document produced or given in evidence in any proceedings in any Court, then taking

of cognizance of such offences is barred by any Court except on the complaint in writing of that Court where such offences were committed or of some other Court to which such Court is subordinate. Although there are divergent views regarding the application of the above referred provisions of S. 195 of the Criminal P.C. regarding the document which was forged outside the Court but tendered in evidence thereafter in the Court and the one where the forgery regarding the document was committed after it was placed on the file of the Court.

7. A Full Bench of this Court comprising of three Judges in Harbans Singh v. State, AIR 1987 Punj and Hary 19: (1986 Cri LJ 1834) after elaborate discussion had held that the bar enacted in S. 195 of the Criminal P.C. is applicable to those documents only which are tampered with or fabricated after their production in the Court and not concerning those documents which were fabricated outside the Court but tendered in evidence later on. The ratio of the decision of the above referred Full Bench is under assail before a larger Full Bench of this Court in Registrar, High Court v. Madan Lal Sharma, (Criminal Misc. No. 1342-M of 1985). Any how as in the case in hand admittedly the lady who had allegedly impersonated as Gurnam Kaur had made a false statement in the Court itself, there is no doubt that the above referred provisions of S. 195(1)(b)(i)(ii) and (iii) would be applicable to the offences mentioned in Ss.193 to 196, 199, 200, 205 and 209 of the Penal Code, 1860, and the taking of cognizance of these offences by any Court except on the complaint in writing of Sub Judge IInd Class, Hisar, or some other superior Court to which that Court was subordinate. In the case in hand no such sanction was obtained. The facts and circumstances of the case constituting the above referred offences as well as the offences punishable u/Ss. 467, 468 and 471 are overlapping each other and form part of the same transaction. Thus by necessary implication, the provisions of S. 195(1)(b)(ii) would be applicable to these offences also.

8. The matter does not rest here as the provisions of S. 340 of the Criminal P.C. prescribing procedure in cases mentioned in S. 195 of the Criminal P.C. further make it clear that the Court where such offences mentioned in S. 195 are committed shall suo motu or on the application of the aggrieved party shall record a finding regarding the forgery of any document or giving of false evidence and thereafter make a complaint thereof in writing and despatch the same to the Magistrate Ist Class having jurisdiction to take cognizance of such offences. It is further provided that the Court shall take sufficient security for the appearance of the accused before such Magistrate, and bind over any person to appear and give evidence before such Magistrate. The reading of the above referred provisions of S. 195 coupled with the procedure prescribed in S. 340 of the Criminal P.C. absolutely leave no doubt that not only cognizance of such offences without the complaint in writing of the Court concerned is barred but also the investigation into such offences because that will amount to taking over the function of the Court, where forgery was committed, by the investigating agency which is against the mandate of S. 340 of the Criminal P.C.

9. The above referred view also finds support from the observations of Justice D.S. Tewatia (as he then was) in Sheela Devi v. State of Punjab, 1979 Chand LR (Cri) 195 (Punj and Har). In that case also, the first information report for offences under Ss. 467, 468, 471, 420 and 120-B read with S. 109 of the Penal Code was quashed by holding that the provisions of S. 195(1)(b)(ii) and (iii) read with S. 340 of the Criminal P.C. not only bar the taking of cognizance of the offence by the criminal court but also the investigation into the allegations of such offences by necessary implication, as that will be a futile exercise if the Criminal Court cannot take cognizance of the offence except on the complaint in writing of the Court where such offences were committed regarding giving of false evidence or forged documents etc.

10. For the reasons recorded above, there is no escape but to conclude that the continuance of the present investigation is a clear abuse of the process of the Court and futile

exercise as no Court can take cognizance of the above referred offences except on the complaint in writing of the civil Court where such offences were committed. Thus by accepting this petition, the above referred first information report and other proceedings resulting therefrom are quashed. It is, however, clarified that Gurnam Kaur, complainant, shall be at liberty to approach the concerned Court u/ S. 340 of the Criminal P.C. for filing a complaint against the accused for the afore-referred offences and the time spent by her in pursuing the present proceedings shall not be taken into consideration while computing the period of limitation or considering the effect of laches on her part as she has filed the complaint and lodged the first information report in good faith being oblivious of the provisions of Ss. 195 and 340 of the Criminal P.C.

Petition Allowed