M/S BANDEKAR BROTHERS PVT. LTD. & ANR versus PRASAD VASSUDEV KENI, ETC. ETC on 2 September 2020

[2020] 10 S.C.R. 1075

M/S BANDEKAR BROTHERS PVT. LTD. & ANR

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PRASAD VASSUDEV KENI, ETC. ETC.

(Criminal Appeal Nos. 546-550 of 2017)

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SEPTEMBER 02, 2020

[R. F. NARIMAN AND NAVIN SINHA, JJ.]

Code of Criminal Procedure, 1973 – s.340 – Penal Code,1860 – ss.191 and 192 – Respondent/accused-proprietory concernhad shared a business relationship with the appellants – Disputearose between the parties, as a result of which various suits werefiled by the appellants – The respondents filed their written statementsand counter-claims in the said suits filed by the appellants – Theappellants filed criminal complaints and contended that respondent/accused had given false evidence and had forged debit notes andmade false entries in books of accounts – The Magistrate convertedthe said complaints into private complaints and issued process u/ss.191, 192 and 193 IPC – The respondent filed revision applicationsagainst the said orders, in which it was stated that the bar containedin s.195(1)(b)(i) of Cr.PC and the procedure u/s.340 Cr.PC beingmandatory could not be circumvented – In a counter-affidavit tothe revision application, the appellants for the first time took theplea that offences u/ss.463, 464, 465, 467, 468, 469, 471, 474,475 and 477-A of the IPC were also made out against therespondents, as a result of which a private complaint would bemaintainable – The Additional Sessions Judge allowed the revisionand quashed the complaints – Writ petitions filed by the appellantswere dismissed by the High Court – On appeal, held: Iqbal SinghMarwah case is clear authority for the proposition that in caseswhich fall u/s.195(1)(b)(ii) of the Cr.PC, the document that is saidto have been forged should be custodia legis after which the forgerytakes place – Further, various judgments of the Supreme Court alsolay down that when s.195(1)(b)(i) of the Cr.PC is attracted, the ratioof Iqbal Singh Marwah case is not attracted and that therefore, iffalse evidence is created outside the Court premises attracting ss.191/192 of the IPC, the aforesaid ratio would not apply so as to validatea private complaint filed for offences made out under these sections– A perusal of the complaints filed in the instant case, leaves no CDEFIqbal SinghG is not attracted and that therefore, ifH1075

Amanner of doubt that the first complaint attracts the provisions ofs.191 of the IPC and the second complaint attracts the provisionsof s.192 of the IPC – The debit notes that are said to be created bythe respondents, it is clear that the debit notes were not ‘falsedocuments’ u/s.464 IPC, inasmuch they had not been made with theintention of causing it to be believed that they were made by orBunder the authority of some other person – Since this basic ingredientof forgery itself is not made out, none of the sections that are soughtto be relied upon in chapter XVIII of the IPC can thus said to beeven prima facie attracted in the facts of the present case – Thefacts clearly show that the two complaints correctly invoked s.195Cr/w. s.340 of the Cr.PC and were then sought to be converted intoprivate complaints thereby attempting to fix a square peg in a roundrole – This has correctly been interdicted by the Sessions Court inrevision and by the High Court under appeal – While it is correct tosay that the order of conversion and issuing of process thereafteron a private complaint may not be correct, yet the two complaintsDas originally filed can still be pursued – Therefore, the twocomplaints reinstated in their original form so that they may beproceeded further, following the drill of s.195 and s.340 of Cr.PC.

Disposing of the appeals, the Court

Disposing of the appeals, the Court

EHELD: 1. It is important to understand the differencebetween the offences mentioned in Section 195(1)(b)(i) andSection 195(1)(b)(ii) of the CrPC. Where the facts mentioned ina complaint attracts the provisions of Section 191 to 193 of theIPC, Section 195(1)(b)(i) of the CrPC applies. What is importantis that once these sections of the IPC are attracted, the offenceFshould be alleged to have been committed in, or in relation to,any proceeding in any Court. Thus, what is clear is that the offencepunishable under these sections does not have to be committedonly in any proceeding in any Court but can also be an offencealleged to have been committed in relation to any proceeding inGany Court. [Para 19][1100-C-E]

2. Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii)of the CrPC speaks of offences described in Section 463, andpunishable under Sections 471, 475 or 476 of the IPC, when suchoffences are alleged to have been committed in respect of aHdocument produced or given in evidence in a proceeding in any Court. What is conspicuous by its absence in Section 195(1)(b)(ii)are the words “or in relation to”, making it clear that if theprovisions of Section 195(1)(b)(ii) are attracted, then the offencealleged to have been committed must be committed in respect ofa document that is custodia legis, and not an offence that mayhave occurred prior to the document being introduced in courtproceedings. Indeed, it is this distinction that is vital inunderstanding the sheet anchor of the Appellant’s case namely,this Court’s judgment in Iqbal Singh Marwah. [Para 22][1102-B-D]

3. The Iqbal Singh Marwah is clear authority for theproposition that in cases which fall under Section 195(1)(b)(ii) ofthe CrPC, the document that is said to have been forged shouldbe custodia legisafter whichthe forgery takes place. [Para29][1106-G]

4. The various Supreme Court judgments clearly lay downthat when Section 195(1)(b)(i) of the Cr.PC is attracted, the ratioof Iqbal Singh Marwah, which approved Sachida Nand Singh andAnr. v. State of Bihar and Anr. (1998) 2 SCC 493, is not attracted,and that therefore, if false evidence is created outside the Courtpremises attracting Sections 191/192 of the IPC, the aforesaidratio would not apply so as to validate a private complaint filedfor offences made out under these sections. [Para 33][1110-H;1111-A]

5. A perusal of the complaints leaves no manner of doubtthat the first complaint attracts the provisions of Section 191 ofthe IPC, and the second complaint attracts the provisions ofSection 192 of the IPC. However, for the first time in the counter-affidavit to the revision application that was filed by theRespondents before the Sessions Judge, the Appellants took theplea that offences u/ss.463, 464, 465, 467, 468, 469, 471, 474,475 and 477-A of the IPC were also made out against therespondents. [Para 42][1117-G-H; 1118-A-B]

6. There is no doubt that realising the difficulties in theirway, the Appellants suddenly changed course, and applied to theMagistrate vide application dated 09.05.2011 to convert what wasa properly drafted application under Section 195 read with section340 of the CrPC, into a private complaint. A reading of the two A

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Acomplaints leaves no manner of doubt that they have been draftedkeeping the ingredients of Sections 191 and 192 of the IPC alonein mind – the only argument from the Appellants now being thatsince certain debit notes were forged prior to their beingintroduced in the court proceedings, not only would the ratio inIqbal Singh Marwah apply, but also that the ingredients of theB“forgery” sections of the IPC have now been made out. While itis important to bear in mind that in genuine cases where theingredients of forgery as defined in Section 463 of the IPC havebeen made out, and that therefore, a private complainant shouldnot be left remediless, yet it is equally important to bear in mindCthe admonition laid down in an early judgment of this Court. [Para43][1118-D-G]

7. It is thus clear that even if all the averments made in thetwo complaints (which clearly attract the provisions of Sections191 and 192 of the Penal Code) are put aside, and were toDconcentrate only on the debit notes that are said to have been“created” by the Respondents, it is clear that the debit noteswere not “false documents” under Section 464 of the IPC,inasmuch they had not been made with the intention of causing itto be believed that they were made by or under the authority ofsome other person. Since this basic ingredient of forgery itself isEnot made out, none of the sections that are sought to be reliedupon in Chapter XVIII of the IPC can thus be said to be evenprima facie attracted in the facts of this case. [Para 52][1127-B- C]

8. It now remains to deal with some of the other submissionsFof appellants. The submission of appellants challenging the findingof the High Court that the Appellants did not file any proceedingsunder Section 482 of the CrPC to make a grievance that thecomplaint discloses other offences also, and that the Magistrateought to have issued process for the same, has no legs to standGon. Whether a High Court acts suo motu under Section 482 of theCrPC is for the High Court to decide, being a discretion vestedin the High Court to be exercised on the facts of the case. As thisCourt has seen, the facts of this case clearly show that the twocomplaints dated 11.08.2009 correctly invoked Section 195 readwith Section 340 of the CrPC, and were then sought to beH

converted into private complaints, thereby attempting to fit asquare peg in a round role. This has correctly been interdictedby the Sessions Court in revision, and by the High Court judgmentunder appeal. [Para 53][1127-D-F]

9. Writ petitions that were filed against this order havebeen dismissed by the impugned judgment. It seems to this Courtthat the baby and the bath-water have both been thrown outtogether. While it is correct to say that the order of conversionand issuing of process thereafter on a private complaint may notbe correct, yet the two complaints as originally filed can still bepursued. Once the Magistrate’s order had been set aside, theAdditional Sessions Judge ought to have relegated the partiesto the position before the original complaints had been convertedinto private complaints. Since this has not been done, this Courtfinds that appellants is right in stating that even though allegedlyserious offences have been made out under Sections 191 and192 of the IPC, yet the complaints themselves have now beenquashed. Therefore, reinstate the two complaints in their originalform so that they may be proceeded with further, following thedrill of Sections 195 and 340 of the CrPC. [Para 60][1131-B-D]

Iqbal Singh Marwah and Anr. v. Meenakshi Marwahand Anr. (2005) 4 SCC 370 : [2005] 2 SCR 708; BabuLal v. State of Uttar Pradesh [1964] 4 SCR 957 –followed.

Patel Laljibhai Somabhai v. State of Gujarat (1971) 2SCC 376 : [1971] Suppl. SCR 834; Daulat Ram v. Stateof Punjab [1962] 2 Suppl. SCR 812; Dr. S. Dutt v. Stateof Uttar Pradesh [1966] 1 SCR 493; Baban Singh andAnr. v. Jagdish Singh and Anr. [1966] 3 SCR 552; KamlaPrasad Singh v. Hari Nath Singh [1967] 3 SCR 828;Kailash Mangal v. Ramesh Chand (2015) 15 SCC 729;Narendra Kumar Srivastava v. State of Bihar and Ors.(2019) 3 SCC 318 : [2019] 2 SCR 643; Basir-ul-Huqand Ors. v. State of West Bengal [1953] SCR 836; Stateof Karnataka v. Hemareddy (1981) 2 SCC 185 : [1981]2 SCR 695; Devendra v. State of U.P. (2009) 7 SCC495 : [2009] 7 SCR 872; Mohd. Ibrahim v. State of A

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ABihar (2009) 8 SCC 751 : [2009] 13 SCR 1254; MirNagvi Askari v. CBI (2009) 15 SCC 643 : [2009]13 SCR 124 – relied on.Surjit Singh v. Balbir Singh (1996) 3 SCC 533 : [1996]3 SCR 70; Mansukhlal Dhanraj Jain and Ors. Etc. v.BEknath Vithal Ogale Etc. (1995) 2 SCC 665 : [1995] 1SCR 996; Mahesh Chand Sharma v. State of U.P andOrs. (2009) 15 SCC 519 : [2009] 13 SCR 922; C.P.Subhash v. Inspector of Police, Chennai and Ors. (2013)11 SCC 559 : [2013] 1 SCR 545; KishorbhaiGandubhai Pethani v. State of Gujarat and Anr.C(2014) 13 SCC 539 : [2013] 10 SCR 208; VishnuChandruGaonkar v. N.M. Dessai (2018) 5 SCC 422 :[2018] 3 SCR 103; Sachida Nand Singh and Anr. v.State of Bihar and Anr. (1998) 2 SCC 493 : [1998] 1SCR 492 – referred to.DState Wakf Board, Madras v. Abdul Azeez Sahib andOrs. AIR 1968 Mad. 79; Re V.V.L. NarasimhamurthyAIR 1955 Mad 237 – referred to.

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M/S BANDEKAR BROTHERS PVT. LTD. & ANR v.PRASAD VASSUDEV KENI

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.546-550 of 2017.

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From the Judgment and Order dated 22.11.2013 of the High Courtof Bombay at Goa in Criminal Writ Petition Nos. 65, 66, 69, 70 and 73 of2013.

Anil Kumar Mishra, E. Dais, Parijat Sinha, Ms. Reshmi Rea Sinha,Devesh Mishra, Rudra Dutta, Yogesh Nadkarni, A. Raghunath,Ms. Ruchira Gupta, Shishir Deshpande, Advs. for the appearing parties.

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The Judgment of the Court was delivered by

R. F. NARIMAN, J.

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1. The proceedings in this case arise out of two criminal complaintsdated 11.08.2009 filed by the Appellants against the Respondents hereinbefore the Court of the Sessions Judge, North Goa, under Section 340read with Section 195 of the Code of Criminal Procedure, 1973 (“CrPC”)in respect of offences alleged under Sections 191 and 192 of the IndianPenal Code, 1860 (“IPC”).

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2. Accused No.1 in the aforesaid complaints is a proprietaryconcern of the late V.G. Quenim, based in Goa, which is engaged in thebusiness of producing, processing and sale of iron ore. Accused Nos.2and 3 are his son and wife respectively, who are the co-proprietors ofM/s V.G. Quenim, the aforesaid V.G. Quenim having expired on H

A20.07.2007. M/s V.G. Quenimhad shared a business relationship withthe Appellants since the year 1990. However, disputes arose betweenthe parties, as a result of which four suits, being Suit Nos.7, 8, 14 and 21of 2000/A,were filed by the Appellants against M/s V. G. Quenim beforethe Civil Court at Bacholim. A fifth suit, being Suit No.1/2003/A, wasfiled by the late V. G. Quenim against the Appellants, which wasBwithdrawn on 01.10.2007 unconditionally.The Respondents filed theirWritten Statements and Counter Claims in the said suits filed by theAppellants.

3. After withdrawal of the fifth suit, these criminal complaintswere filed, inasmuch as the Appellants contended that in theseCproceedings, the Respondent/Accused had given false evidence, andhad forged debit notes and made false entries in books of accounts.Bytwo orders dated 01.10.2009, the learned Additional Sessions Judge-I inNorth Goa at Panaji, returned the complaints, stating that these complaintscould only be filed in the Court before whom such proceedings wereDpending in which the alleged offences were committed.The complaintswere then filed before the learned Judicial Magistrate First Class atBicholim.

4. After various depositions had been made by witnesses beforethe said Magistrate, an application dated 09.05.2011 was filed, in whichEthe Appellants prayed, relying upon the Supreme Court judgment in IqbalSingh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4SCC 370, that the said complaints be converted to private complaints.Thiswas done by two orders of the Judicial Magistrate dated 13.10.2011,who after converting the said complaints into private complaints, issuedprocess under Sections 191, 192 and 193 of the IPC. It is important toFnote that the Appellants/complainants did not file any revision or otherproceedings to challenge the issue of process under the aforesaid sectionsof the IPC.

5. The Respondents, however, filed revision applications againstthe said orders, in which it was stated that the bar contained in SectionG195(1)(b)(i) of the CrPC, and the procedure under Section 340 CrPCbeing mandatory, could not be circumvented, and the complaints read asa whole would clearly show that offences under Sections 191 to 193 ofthe IPC alone were made out, as a result of which the drill under theaforesaid sections of the CrPC would have to be observed. In a counter-Haffidavit dated 08.10.2012 filed to the aforesaid revision applications, the Appellants, for the first time, took the plea that offences under Sections463, 464, 465, 467, 468, 469, 471, 474, 475 and 477-A of the IPC werealso made out against the Respondents, as a result of which a privatecomplaint would be maintainable.The learned Additional Sessions Judge,Mapusa, by his judgment dated 05.03.2013, held that the bar under Section195(1)(b)(i) of the CrPC was attracted, and that the provisions underSection 340 of the CrPC, which were mandatory, had to be followed.Since this was not done, the revision petitions were allowed and thecomplaints quashed. Iqbal Singh Marwah (supra) was distinguished,stating that it was a judgment which concerned itself with Section195(1)(b)(ii) and not Section 195(1)(b)(i) of the CrPC, and would,therefore, have no application in the facts of this case.

6. Writ petitions filed by the Appellants against the aforesaidjudgment proved unsuccessful, the High Court dismissing the aforesaidwrit petitions by the impugned judgment dated 22.11.2013.

7. Shri Anil Kumar Mishra, learned Advocate appearing on behalfof the Appellants, took us through the complaints dated 11.08.2009. Itwas his case that debit notes had been created by the Respondentswhich were totally fraudulent, in order to buttress their case that certainamounts were owed by the Appellants to the Respondents. The learnedcounsel argued with great vehemence that this is why the fifth suit, viz.,Suit No.1/2003/A was ultimately withdrawn on 01.10.2007,theRespondents having realised that the evidence given would completelybelie their false case. The learned counsel then referred to the counter-affidavit filed to the revision petition before the learned Sessions Judgein order to buttress his plea that offences under the “forgery” sectionsof the IPC had been made out, which would all be the subject matter ofa private complaint, and which do not have to follow the procedure setout by Section 340 CrPC. He relied very heavily upon Iqbal SinghMarwah (supra) to argue that the documents and books of accountsetc. that were forged, were all forged before they were taken in evidencein the Court proceedings, as a result of which the judgment squarelyapplied, and a private complaint, therefore, would be maintainable.Healso argued that the High Court was wrong in stating that the Appellantsdid not file any Section 482 petition making a grievance that the complaintsdisclosed other offences also, and that the Magistrate ought to haveissued process for the same. He cited a judgment to assail this part ofthe High Court judgment, stating that the High Court ought not to have A

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Astood upon ceremony, but if it had found injustice, ought to have suomoto exercised powers under Section 482 of the CrPC.He furtherattacked the impugned judgment, by stating that its reliance on SurjitSingh v. Balbir Singh (1996) 3 SCC 533, a judgment that has beenexpressly overruled in Iqbal Singh Marwah (supra), would also showthat the reasoning of the aforesaid judgment is completely faulty. HeBcited a number of judgments which followed Iqbal Singh Marwah(supra), and stated that it was wrong to say that it was confined only toSection 195(1)(b)(ii), but that its reasoning would clearly apply to caseswhich fall within both Section 195(1)(b)(i) as well as Section 195(1)(b)(ii)of the CrPC. As an alternative argument, he went on to add that processCmay have been issued stating wrong sections, which would make nodifference,as at the stage of framing a charge under Section 211 of theCrPC, the correct sections could then be referred to. Even thereafter,charges as framed can always be altered under Section 216 of the CrPC.He then went on to point out that under Section 460(e) of the CrPC,once a Magistrate issues process under Section 190(1)(a) of the CrPC,Dany irregularity that may be committed in the course of the proceedingscan always be condoned. According to him, therefore, the complaintswere correctly registered as private complaints and ought to continue assuch.

8. Shri Yogesh Nadkarni, learned counsel appearing on behalf ofEthe Respondents, referred to the pending suits, and to the application forconversion of the complaints, which, according to him, were correctlyfiled under Section 195 read with Section 340 CrPC. He argued that theHigh Court was correct in its conclusion that Iqbal Singh Marwah(supra) was a case which arose only under Section 195(1)(b)(ii) of theFCrPC, and that the complaints filed in the present case disclose offenceswhich would fall within Section 195(1)(b)(i) of the CrPC.He alsovehemently argued that the debit notes, which were the sheet-anchor ofthe Appellants’ case, cannot be said to have been forged within themeaning of Sections 463 and 464 of the IPC, as the debit notes, even if dishonestly or fraudulently made, had to be made within the intention ofGcausing it to be believed that such debit notes were made by a personwhom the person making it knows that it was not made, which is not thecase, as the debit notes were made on the sole proprietorship’s letterhead,with the writing and signatures that were of the proprietor.He, therefore,argued that the forgery sections under the IPC do not get attracted at allHto the complaints, which were correctly filed under Section 195 read with Section 340 of the CrPC. He contended that the counter-affidavitthat was relied upon by the Appellants to the Respondent’s revisionapplicationswas clearly an afterthought, in order to buttress a hopelesscase. In any event, the complaints read as a whole, would make it clearthat the entirety of the complaints were in, or in relation to, offencescommitted under Sections 191 and 192 of the IPC used/to be used injudicial proceedings and, therefore, fell squarely within Section 195(1)(b)(i)of the CrPC. He also argued that after conversion into a privatecomplaint, the Magistrate issued process only under Sections 191 to 193of the IPC, which order remained unchallenged by the Appellants.Healso cited judgments relating to the object sought to be achieved by Section195, as well as judgments which distinguished Iqbal Singh Marwah(supra) on that ground that it applied only to cases falling under Section195(1)(b)(ii) and not to cases falling under Section 195(1)(b)(i) of theCrPC.

9. Having heard the learned counsel appearing on behalf of theparties, it is necessary to set out the relevant sections of the CrPC andthe IPC.

CrPC

“190. Cognizance of offences by Magistrates.—(1) Subjectto the provisions of this Chapter, any Magistrate of the first class,and any Magistrate of the second class specially empowered inthis behalf under sub-section (2), may take cognizance of anyoffence—

(a) upon receiving a complaint of facts which constitute suchoffence; (b) upon a police report of such facts;

(c) upon information received from any person other than a policeofficer, or upon his own knowledge, that such offence has beencommitted.

(2) The Chief Judicial Magistrate may empower any Magistrateof the second class to take cognizance under sub-section (1) ofsuch offences as are within his competence to inquire into or try.”

“195. Prosecution for contempt of lawful authority of publicservants, for offences against public justice and for offences AB

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Arelating to documents given in evidence.—(1) No Court shalltake 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 B

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concernedor of some other public servant to whom he is administrativelysubordinate; C(b) (i) of any offence punishable under any of the following sectionsof the Indian Penal Code (45 of 1860), namely, sections 193 to196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228,when such offence is alleged to have been committed in, or inrelation to, any proceeding in any Court, or D(ii) of any offence described in section 463, or punishable undersection 471, section 475 or section 476, of the said Code, whensuch offence is alleged to have been committed in respect of adocument produced or given in evidence in a proceeding in anyCourt, or E(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 by such officerof the Court as that Court may authorise in writing in this behalf,For of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant underclause (a) of sub-section (1) any authority to which he isadministratively subordinate may order the withdrawal of thecomplaint and send a copy of such order to the Court; and uponGits receipt by the Court, no further proceedings shall be taken onthe complaint:

Provided that no such withdrawal shall be ordered if the trial inthe Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “Court” means aHCivil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by thatAct to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shallbe deemed to be subordinate to the Court to which appealsordinarily lie from the appealable decrees or sentences of suchformer Court, or in the case of a Civil Court from whose decreesno appeal ordinarily lies, to the Principal Court having ordinaryoriginal civil jurisdiction within whose local jurisdiction such CivilCourt is situate:

Provided that—

(a) where appeals lie to more than one Court, the Appellate Courtof inferior jurisdiction shall be the Court to which such Court shallbe deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, suchCourt shall be deemed to be subordinate to the Civil or RevenueCourt according to the nature of the case or proceeding inconnection with which the offence is alleged to have beencommitted.”

“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 Justicethat an inquiry should be made into any offence referred to inclause (b) of sub-section (1) of section 195, which appears tohave been committed in or in relation to a proceeding in that Courtor, as the case may be, in respect of a document produced orgiven in evidence in a proceeding in that Court, such Court may,after such preliminary inquiry, if any, as it thinks necessary,—

(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 accusedbefore such Magistrate, or if the alleged offence is non-bailableand the Court thinks it necessary so to do, send the accused incustody to such Magistrate; and AB

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[2020] 10 S.C.R.

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(e) bind over any person to appear and give evidence beforesuch Magistrate.

(2) The power conferred on a Court by sub-section (1) in respectof an offence may, in any case where that Court has neither madea complaint under sub-section (1) in respect of that offence norrejected an application for the making of such complaint, beexercised by the Court to which such former Court is subordinatewithin the meaning of sub-section (4) of section 195.

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(3) A complaint made under this section shall be signed,—

(a) where the Court making the complaint is a High Court, bysuch officer of the Court as the Court may appoint; C

(b) in any other case, by the presiding officer of the Court orby such officer of the Court as the Court may authorise inwriting in this behalf.

(4) In this section, “Court” has the same meaning as in section195.

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341. Appeal.—(1) Any person on whose application any Courtother than a High Court has refused to make a complaint undersub-section (1) or sub-section (2) of section 340, or against whomsuch a complaint has been made by such Court, may appeal toEthe Court to which such former Court is subordinate within themeaning of sub-section (4) of section 195, and the superior Courtmay thereupon, after notice to the parties concerned, direct thewithdrawal of the complaint, or, as the case may be, making ofthe complaint which such former Court might have made underFsection 340, and, if it makes such complaint, the provisions of thatsection shall apply accordingly.

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(2) An order under this section, and subject to any such order, anorder under section 340, shall be final, and shall not be subject torevision.”

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“343. Procedure of Magistrate taking cognizance.—(1) AMagistrate to whom a complaint is made under section 340 orsection 341 shall, notwithstanding anything contained in ChapterXV, proceed, as far as may be, to deal with the case as if it wereinstituted on a police report.

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(2) Where it is brought to the notice of such Magistrate, or of anyother Magistrate to whom the case may have been transferred,that an appeal is pending against the decision arrived at in thejudicial proceeding out of which the matter has arisen, he may, ifhe thinks fit, at any stage, adjourn the hearing of the case untilsuch appeal is decided.”

IPC

“24. “Dishonestly”.—Whoever does anything with the intentionof causing wrongful gain to one person or wrongful loss to anotherperson, is said to do that thing “dishonestly”.

25. “Fraudulently”.—A person is said to do a thing fraudulentlyif he does that thing with intent to defraud but not otherwise.”

“191. Giving false evidence.—Whoever, being legally boundby an oath or by an express provision of law to state the truth, orbeing bound by law to make a declaration upon any subject, makesany statement which is false, and which he either knows or believesto be false or does not believe to be true, is said to give falseevidence.

Explanation 1.—A statement is within the meaning of this section,whether it is made verbally or otherwise.

Explanation 2.—A false statement as to the belief of the personattesting is within the meaning of this section, and a person maybe guilty of giving false evidence by stating that he believes athing which he does not believe, as well as by stating that heknows a thing which he does not know.

192. Fabricating false evidence.—Whoever causes anycircumstance to exist or makes any false entry in any book orrecord, or electronic record or makes any document or electronicrecord containing a false statement, intending that suchcircumstance, false entry or false statement may appear in evidencein a judicial proceeding, or in a proceeding taken by law before apublic servant as such, or before an arbitrator, and that suchcircumstance, false entry or false statement, so appearing inevidence, may cause any person who in such proceeding is toform an opinion upon the evidence, to entertain an erroneousopinion touching any point material to the result of such proceedingis said “to fabricate false evidence”.

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A193. Punishment for false evidence.—Whoever intentionallygives false evidence in any of a judicial proceeding, or fabricatesfalse evidence for the purpose of being used in any stage of ajudicial proceeding, shall be punished with imprisonment of eitherdescription for a term which may extend to seven years, and shallalso be liable to fine; and whoever intentionally gives or fabricatesBfalse evidence in any other case, shall be punished withimprisonment of either description for a term which may extendto three years, and shall also be liable to fine.

Explanation 1.—A trial before a Court-martial is a judicialproceeding.

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Explanation 2.—An investigation directed by law preliminary toa proceeding before a Court of Justice, is a stage of a judicialproceeding, though that investigation may not take place before aCourt of Justice.”

“196. Using evidence known to be false.—Whoever corruptlyDuses or attempts to use as true or genuine evidence any evidencewhich he knows to be false or fabricated, shall be punished in thesame manner as if he gave or fabricated false evidence.”

“463. Forgery.—Whoever makes any false document or falseelectronic record or part of a document or electronic record, withEintent to cause damage or injury, to the public or to any person, orto support any claim or title, or to cause any person to part withproperty, or to enter into any express or implied contract, or withintent to commit fraud or that fraud may be committed, commitsforgery.

F464. Making a false document.—A person is said to make afalse document or false electronic record—

First.—Who dishonestly or fraudulently—

(a) makes, signs, seals or executes a document or part of adocument; G

(b) makes or transmits any electronic record or part of anyelectronic record;

(c) affixes any electronic signature on any electronic record;(d) makes any mark denoting the execution of a document orHthe authenticity of theelectronic signature,

with the intention of causing it to be believed that such documentor part of document, electronic record orelectronic signature wasmade, signed, sealed, executed, transmitted or affixed by or bythe authority of a person by whom or by whose authority he knowsthat it was not made, signed, sealed, executed or affixed; or Secondly.—Who without lawful authority, dishonestly orfraudulently, by cancellation or otherwise, alters a document oran electronic record in any material part thereof, after it has beenmade, executed or affixed with electronic signature either byhimself or by any other person, whether such person be living ordead at the time of such alteration; or Thirdly.—Who dishonestly or fraudulently causes any person tosign, seal, execute or alter a document or an electronic record orto affix his electronic signature on any electronic record knowingthat such person by reason of unsoundness of mind or intoxicationcannot, or that by reason of deception practised upon him, hedoes not know the contents of the document or electronic recordor the nature of the alteration.

Explanation 1.—A man’s signature of his own name may amountto forgery Explanation 2.—The making of a false document in the name ofa fictious person, intending it to be believed that the documentwas made by a real person, or in the name of a deceased person,intending it to be believed that the document was made by theperson in his lifetime, may amount to forgery.

Explanation 3.—For the purposes of this section, the expression“affixing electronic signature” shall have the meaning assigned toit in clause (d) of sub-section (1) of section 2 of the InformationTechnology Act, 2000 (21 of 2000).”

10. Section 190 of the CrPC states that a Magistrate may takecognizance of any offence in one of three situations: (a) upon receivinga complaint of facts which constitute such offence; (b) upon a policereport of such facts; and (c) upon information received from any personother than a police officer, or upon his own knowledge, that such offencehas been committed. However, Section 195 of the CrPC states that inthe offences covered by it, no Court shall take cognizance except uponthe complaint in writing of a public servant, insofar as the offences A

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Amentioned in sub-clause (1)(a) are concerned, and by the complaint inwriting of the “Court” as defined by sub-section (3), insofar as theoffences delineated in sub-clause (1)(b) are concerned.The reason forthe enactment of Section 195 of the CrPC has been stated felicitously inPatel Lalji bhai Somabhai v. State of Gujarat (1971) 2 SCC 376, asfollows:B

“7. The underlying purpose of enacting Section 195(1)(b) and (c)and Section 476, seems to be to control the temptation on the partof the private parties considering themselves aggrieved by theoffences mentioned in those sections to start criminal prosecutionson frivolous, vexatious or insufficient grounds inspired by aCrevengeful desire to harass or spite their opponents. Theseoffences have been selected for the court’s control because oftheir direct impact on the judicial process. It is the judicial process,in other words the administration of public justice, which is thedirect and immediate object or victim of those offence and it isDonly by misleading the courts and thereby perverting the due courseof law and justice that the ultimate object of harming the privateparty is designed to be realised. As the purity of the proceedingsof the court is directly sullied by the crime, the Court is consideredto be the only party entitled to consider the desirability ofcomplaining against the guilty party. The private party designedEultimately to be injured through the offence against theadministration of public justice is undoubtedly entitled to move thecourt for persuading it to file the complaint. But such party isdeprived of the general right recognized by Section 190 CrPC, ofthe aggrieved parties directly initiating the criminal proceedings.

FThe offences about which the court alone, to the exclusion of theaggrieved private parties, is clothed with the right to complainmay, therefore, be appropriately considered to be only thoseoffences committed by a party to a proceeding in that court, thecommission of which has a reasonably close nexus with theproceedings in that court so that it can, without embarking upon aGcompletely independent and fresh inquiry, satisfactorily considerby reference principally to its records the expediency ofprosecuting the delinquent party.”

11. This section has been construed to be mandatory, being anabsolute bar to the taking of cognizance under Section 190 of the CrPC,H

unless the conditions of the section are met, as held by this Court inDaulat Ram v. State of Punjab (1962) Supp. 2 SCR 812 as follows (atpage 815):

“The words of the section, namely, that the complaint has to be inwriting by the public servant concerned and that no court shalltake cognizance except on such a complaint clearly show that inevery instance the court must be moved by the appropriate publicservant. We have to decide therefore whether the Tahsildar canbe said to be the public servant concerned and if he had not filedthe complaint in writing, whether the police officers in filing thecharge-sheet had satisfied the requirements of Section 195. Thewords “no court shall take cognizance” have been interpreted onmore than one occasion and they show that there is an absolutebar against the court taking seisin of the case except in the mannerprovided by the section.”

12. Under Section 340 of the CrPC, the procedure in casesmentioned in Section 195 of the CrPC is set out. The Court may make apreliminary enquiry if it thinks necessary, and then record a finding tothe effect that the provisions of Section 195(1)(b) of the CrPC areattracted, as a result of which the Court itself is then to make a complaintin writing, and send it to a Magistrate of the first class having jurisdiction.Where the Court declines to make any such complaint, an appeal isprovided under Section 341 of the CrPC. The appellate power of theCourt under Section 341 can also be invoked, insofar as a complaint hasbeen made under Section 340, by the person so aggrieved. By Section341(2), the appellate order shall be final and shall not be subject torevision. Finally, a Magistrate to whom a complaint is made under thesesections shall proceed to deal with the case as if it were instituted on apolice report – vide Section 343(1).

13. The point forcefully argued by the learned counsel on behalfof the Appellants is that his clients, being victims of forgery, ought not tobe rendered remediless in respect of the acts of forgery which arecommitted beforethey are used as evidence in a court proceeding, andthat therefore, a private complaint would be maintainable in the factcircumstance mentioned in the two criminal complaints referred tohereinabove.The Court has thus to steer between two opposite poles ofa spectrum – the “yin” being the protection of a person from frivolouscriminal complaints, and the”yang” being the right of a victim to ventilate A

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Ahis grievance and have the Court try the offence of forgery by means ofa private complaint. In order to appreciate whether this case falls withinthe category of avoiding frivolous litigation, or whether it falls within theindividual’s right to pursue a private complaint,we must needs refer toseveral decisions of this Court.

B14. In Babu Lal v. State of Uttar Pradesh (1964) 4 SCR 957, a5-Judge Bench of this Court dealt with the difference between theingredients of offences made out under Sections 192 and 193 of the IPCon the one hand, and the “forgery” sections of the IPC on the other. TheCourt put it thus (at pages 962-963):

C“It is true that some of the ingredients of the act of fabricatingfalse evidence which is penalised under Section 193 Indian PenalCode and of making a false document and thereby committingforgery within the meaning of Sections 463 and 464 of the IndianPenal Code are common. A person by making a false entry in anybook or record or by making any document containing a falseDstatement may, if the prescribed conditions of Section 463 arefulfilled, commit an offence of forgery. But the important ingredientwhich constitutes fabrication of false evidence within the meaningof Section 192 Indian Penal Code beside causing a circumstanceto exist or making a false document — to use a compendiousEexpression — is the intention that the circumstance so caused toexist or the false document made may appear in evidence in ajudicial proceeding, or before a public servant or before anarbitrator, and lead to the forming of an erroneous opinion touchingany point material to the result of the proceeding. The offences offorgery and of fabricating false evidence for the purpose of usingFit in a judicial proceeding are therefore distinct, and within thedescription of fabricating false evidence for the purpose specifiedin Section 479-A Criminal Procedure Code, the offence of forgeryis not included. In any event the offence penalised under Section471 Indian Penal Code can never be covered by sub-section (1)Gof Section 479-A. Therefore for taking proceeding against aperson who is found to have used a false document dishonestly orfraudulently in any judicial proceeding, resort may only be madeto Section 476 Code of Criminal Procedure.”

15. In Dr. S. Dutt v. State of Uttar Pradesh (1966) 1 SCR 493,Hthe question arose in the context of an expert witness (i.e. the Appellant

before the Supreme Court) who produced a diploma before the SessionsCourt from the Imperial College of Science and Technology in London,to the effect that he had specialised in the subject of criminology. Theprosecution applied to the Sessions Judge under Section 195 of the CrPCfor prosecution of Dr.Dutt under Section 193 of the IPC. This applicationwas rejected. Two days after its rejection, the private complainant lodgeda report at a police station alleging that Dr.Dutt had committed an offenceunder Section 465, 466 and 471 of the IPC, stating that the diplomaproduced was forged, and that Dr. Dutt had used this “in the court witha bad motive”, passing it off as genuine. The question which arose beforethis Court was as to whether the private complaint was substantially foroffences under Sections 191 to 193 or 196 of the IPC, as against the“forgery”sections contained in the IPC from Section 463 onwards.Aftersetting out the two sets of sections contained in the IPC, the Court held:

“The broad distinction between offences under the two groups isthis. Section 465 deals with the offence of forgery by the makingof a false document and Section 471 with the offences of usingforged documents dishonestly or fraudulently. Section 193 dealswith the giving or fabricating of false evidence and Section 196with corruptly using evidence known to be false. The gist of theoffence in the first group is the making of a false document andthe gist of the offences in the second group is the procuring offalse circumstances or the making of a document containing afalse statement so that a judicial officer may form a wrong opinionin a judicial proceeding on the faith of the false evidence. Anotherimportant difference is that whereas Section 471 requires a userto be either fraudulent, dishonest or both, Section 196 is satisfiedif the user is corrupt. The Penal Code defines the expressionsfraudulently and dishonestly but not the expression corrupt.

We shall now attempt to apply the two groups of offencescontained in Chapter XI and Chapter XVIII, to the proved acts ofDr Dutt. We shall begin with Chapter XI. The definition of theexpression “fabricating false evidence” in Section 192, alreadyquoted, quite clearly covers this case. If Dr Dutt fabricated thefalse diploma he made a document containing a false statementintending that it may appear in evidence and so appearing inevidence may cause any person who is to form an opinion upon itto entertain an erroneous opinion touching on point material to the AB

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Aresult of a judicial proceedings. Dr Dutt, as alleged, was falselyposing as an expert and was deposing about matters which werematerial to the result of the trial. He had a document to supporthis claim should occasion arise. He produced the document,although asked to do so, intending that the presiding Judge mayform an erroneous opinion about Dr Dutt and the relevancy of hisBevidence. The case was thus covered by Section 192. When DrDutt deposed, let us assume falsely about his training, he committedan offence under Section 193. Again, when Dr Dutt used thediploma as genuine his conduct was corrupt, whether or not itwas dishonest or fraudulent.”

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(at pages 499-500)

“It would thus be seen that the action of Dr Dutt was covered bySections 192 and 196 of the Penal Code. If Dr Dutt gave falseevidence in court or if he fabricated false evidence the offenceunder Section 193 was clearly committed. If he used fabricatedevidence an offence under Section 196 was committed by him.These offences would have required a complaint in writing of theSessions Judge before cognizance could be taken.”

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(at page 501)

E“We are, therefore, satisfied that Dr Dutt’s conduct does not comewithin Section 471. On the other hand, it falls within Section 196which casts its net wider in the interest of the purity ofadministration of justice. It may be noted that an offence underSection 196 of the Penal Code is a far more serious offence thanthe offence under Sections 465/471. The former is punishableFwith imprisonment upto seven years and fine while the latter ispunishable with imprisonment upto two years or with fine.

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In this connection we may again recall the words of this Courtwhich were put in the forefront by Mr Chari that it is not permissiblefor the prosecution to drop a serious charge and select one whichdoes not require the procedure under Section 195 of the Code ofCriminal Procedure. If the offence was under Section 196 of theIndian Penal Code, a complaint in writing by the court concernedwas required. Before a complaint is made the court has to considerwhether it is expedient in the interests of justice to order aprosecution. In the lesser offence no such complaint by the court G

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is necessary and it is obvious that the lesser offence was chosento bypass the Sessions Judge who had earlier decided that DrDutt should not be prosecuted for perjury. Such a device is not tobe commended. In our opinion, the offence in the present casedid not fall within Sections 465/471 IPC and the prosecutionlaunched against Dr Dutt cannot be allowed to go on.”

(at pages 503-504)

16. In Baban Singh and Anr. v. Jagdish Singh and Anr. (1966)3 SCR 552, the question was whether the swearing of false affidavitsbefore a Court would amount to an offence under Sections 191 or 192of the IPC, or whether Section 199 of the IPC would be attracted, inwhich case the special procedure delineated by Section 479-A of theCode of Criminal Procedure, 1898 need not be followed. The Courtheld (at pages 555-556):

“The matter has to be considered from three standpoints. Doesthe swearing of the false affidavits amount to an offence unders.199, Indian Penal Code or under either s.191 or 192, IndianPenal Code? If it comes under the two latter sections, the presentprosecution cannot be sustained, Section 199 deals with adeclaration and does not state that the declaration must be onoath. The only condition necessary is that the declaration must becapable of being used as evidence and which any court of justiceor any public servant or other person, is bound or authorised bylaw to receive as evidence. Section 191 deals with evidence onoath and s.192 with fabricating false evidence. If we considerthis matter from the standpoint of s.191, Indian Penal Code theoffence is constituted by swearing falsely when one is bound byoath to state the truth because an affidavit is a declaration madeunder oath. The definition of the offence of giving false evidencethus applies to the affidavits. The offence may also fall within s.192. It lays down inter alia that a person is said to fabricate falseevidence if he makes a document containing a false statementintending that such false statement may appear in evidence in ajudicial proceeding and so appearing in evidence may cause anyperson who, in such proceeding is to form an opinion upon theevidence, to entertain an erroneous opinion touching any pointmaterial to the result of such proceeding. When Baban Singh andDharichhanKuer made declarations in their affidavits which were A

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Atendered in the High Court to be taken into consideration, theyintended the statements to appear in evidence in a judicialproceeding, and so appearing, to cause the court to entertain anerroneous opinion regarding the compromise. In this way theiroffence came within the words of ss.191/192 rather than s.199 ofthe Indian Penal Code. They were thus prima facie guilty of anBoffence of giving false evidence or of fabricating false evidencefor the purpose of being used in a judicial proceeding.

Section 479-A lays down a special procedure which applies topersons who appear as witnesses before civil, revenue or criminalcourts and do one of two things: (i) intentionally give false evidenceCin any stage of the judicial proceeding or (ii) intentionally fabricatefalse evidence for the purpose of being used in any stage of thejudicial proceeding. The first refers to an offence under Section191/193 and the second to that under 192/193 of the Indian PenalCode. In respect of such offences when committed by a witness,Daction under s.479-A alone can be taken. The appellants werewitnesses in the inquiry in the High Court and they had fabricatedfalse evidence. If any prosecution was to be started against themthe High Court ought to have followed the procedure under s.479-A of the Code of Criminal Procedure. Not having done so,the action under S.476 of the Code of Criminal Procedure wasEnot open because of sub-s. (6) of s.479-A and the order underappeal cannot be allowed to stand.”

17. In Kamla Prasad Singh v. Hari Nath Singh (1967) 3 SCR828, the question which arose before the Court was as to whether theintentional making of a false entry in a document to be used in a judicialFproceeding would make out an offence under Section 192, or whether itwould make out an offence under Section 218 of the IPC, in which casea private complaint would have been maintainable before a Magistrate.Indealing with the distinctive features of complaints filed under Sections192 and 193 of the IPC, the Court held (at pages 829-830):

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“The first question is what are the distinct features of Section 193and Section 218 of the Indian Penal Code. Section 193 states thepunishment for giving false evidence in any stage of a judicialproceeding or fabricating false evidence for the purpose of beingused in any stage of judicial proceeding. Section 191 defines theHoffence of giving false evidence and Section 192 the offence of fabricating false evidence. We may ignore Section 191 becausehere admittedly there is no giving of false evidence as defined inthe Penal Code. The offence of fabricating false evidence comesinto existence when a person causes any circumstance to exist ormakes any false entry in any book or record or makes anydocument containing a false statement intending that suchcircumstance, false entry or false statement may appear in evidencein a judicial proceeding etc. and so appearing cause an erroneousopinion be formed touching a point material to the result of suchproceeding. The offence is a general one and does not specifythe person or the kind of document. It may be any person and thefabricated evidence may be in any form. Section 218 on the otherhand deals with the intentional preparation of a false record by apublic servant with the object of saving or injuring any person orproperty. The difference between the two sections is clearlynoticeable. Section 192 deals with judicial proceeding and the falseevidence is intended to be used in a judicial proceeding. Section218 deals with public servants and there the gist is the intentionalpreparation of a false record with a view of saving or injuring anyperson or property. This need not have relation to a judicialproceeding as such.”

18. In holding that the alleged offence committed by one Ahlmadwould fall under Section 192 and not under Section 218 of the IPC, theCourt then went on to observe (at pages 830-831):

“It will appear from this that the alleged offence committed bythe Ahlmad was clearly in or in relation to a proceeding in Court.In fact he made an incorrect entry about a case actually in Courtwith the intention that the date of the institution of the proceedingmay be taken to be November 9, 1962 although the case wasalleged to be instituted after December 4, 1962. His offence (ifany be proved against him) would fall within Section 192. Section192 deals with fabrication of false evidence to be used in a judicialproceeding so as to cause an erroneous opinion to be formed on amaterial point. Section 192 therefore completely covers the caseagainst Ahlmad, and must cover the case of Hari Nath Singh thealleged abettor. Section 218 Indian Penal Code does not apply inthis case, because the record was not made with the object ofsaving or injuring any person or property. The offence of Section ABC

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A192 of the Indian Penal Code is punishable under Section 193Indian Penal Code and the latter section is one of the sectionsmentioned in Section 195(1)(b) of the Code of Criminal Procedure,the gist of which has been reproduced above. The decision of theHigh Court was therefore right that the Court could not takecognizance of the offence alleged against the Ahlmad and hisBabettor, because the offence was fabricating of false evidence ina case which was in fact pending and the false entry was madewith the object that an erroneous opinion be formed on a materialpoint. Such a case could only be instituted by a court in which orin relation to which this offence was committed and a privateCcomplaint was therefore incompetent.”

19. At this stage, it is important to understand the differencebetween the offences mentioned in Section 195(1)(b)(i) and Section195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaintattracts the provisions of Section 191 to 193 of the IPC, SectionD195(1)(b)(i) of the CrPC applies. What is important is that once thesesections of the IPC are attracted, the offence should be alleged to havebeen committed in, or in relation to, any proceeding in any Court. Thus,what is clear is that the offence punishable under these sections doesnot have to be committed only in any proceeding in any Court but canalso be an offence alleged to have been committed in relation to anyEproceeding in any Court.

20. The words “in relation to” have been the subject matter ofjudicial discussion in many judgments.Suffice it to say that for the present,two such judgments need to be noticed. In State Wakf Board, Madrasv. Abdul Azeez Sahib and Ors., AIR 1968 Mad. 79, the expressionF“relating to” contained in Section 57(1) of the Wakf Act, 1954 fell forconsideration before the Madras High Court. The High Court held:

“8. We have no doubt whatever that the learned Judge, (Kailasam,J.), was correct in his view that even the second suit has to beinterpreted as within the scope of the words employed in S. 57(1)namely, “In every suit or proceeding relating to title to Wakfproperty”. There is ample judicial authority for the view that suchwords as “relating to” or “in relation to” are words ofcomprehensiveness which might both have a direct significanceas well as an indirect significance, depending on the context. Theyare not words of restrictive content and ought not to be so G

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construed. The matter has come up for judicial determination inmore than one instance. The case in Compagnie Financiec DaePacifique v. Peruvian Guano Co, is of great interest, on thisparticular aspect and the judgment of Brett, L.J., expounds theinterpretation of O. 31, R. 12 of the Rules of the Supreme Court,1875, in the context of the phrase “material to any matter in questionin the action”. Brett, L.J., observed that this could both be directas well as indirect in consequences and according to the learnedJudge the test was this (at page 63):

“…a document can properly be said to contain information whichmay enable the party requiring the affidavit either to advance hisown case or to damage the case of his adversary if it is a documentwhich may fairly lead him to a train of inquiry, which may haveeither of these consequences.””

21. Likewise, in Mansukhlal Dhanraj Jain and Ors. Etc. v.Eknath Vithal Ogale Etc., (1995) 2 SCC 665, the expression “Suitsand proceedings between a licensor and licensee…relating to the recoveryof possession” under Section 41(1) of the Presidency Small Cause CourtsAct, 1882 came up for consideration before this Court. The Court held:

“14…The words ‘relating to’ are of wide import and can take intheir sweep any suit in which the grievance is made that thedefendant is threatening to illegally recover possession from theplaintiff-licensee. Suits for protecting such possession of immovableproperty against the alleged illegal attempts on the part of thedefendant to forcibly recover such possession from the plaintiff,can clearly get covered by the wide sweep of the words “relatingto recovery of possession” as employed by Section 41(1).

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16. It is, therefore, obvious that the phrase “relating to recoveryof possession” as found in Section 41(1) of the Small Cause CourtsAct is comprehensive in nature and takes in its sweep all types ofsuits and proceedings which are concerned with the recovery ofpossession of suit property from the licensee and, therefore, suitsfor permanent injunction restraining the defendant from effectingforcible recovery of such possession from the licensee-plaintiffwould squarely be covered by the wide sweep of the said phrase.Consequently in the light of the averments in the plaints under A

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Aconsideration and the prayers sought for therein, on the clearlanguage of Section 41(1), the conclusion is inevitable that thesesuits could lie within the exclusive jurisdiction of Small Cause Court,Bombay and the City Civil Court would have no jurisdiction toentertain such suits.”

B22. Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii) ofthe CrPC speaks of offences described in Section 463, and punishableunder Sections 471, 475 or 476 of the IPC, when such offences arealleged to have been committed in respect of a document produced orgiven in evidence in a proceeding in any Court. What is conspicuous byits absence in Section 195(1)(b)(ii) are the words “or in relation to”,Cmaking it clear that if the provisions of Section 195(1)(b)(ii) are attracted,then the offence alleged to have been committed must be committed inrespect of a document that is custodia legis, and not an offence thatmay have occurred prior to the document being introduced in courtproceedings.Indeed, it is this distinction that is vital in understanding theDsheet anchor of the Appellant’s case namely, this Court’s judgment inIqbal Singh Marwah (supra).

23. In Iqbal Singh Marwah (supra), a 5-Judge Bench wasconstituted in view of a conflict between decisions of this Court as follows:

“2. In view of conflict of opinion between two decisions of thisECourt, each rendered by a Bench of three learned Judges in SurjitSingh v. Balbir Singh [(1996) 3 SCC 533] and Sachida NandSingh v. State of Bihar [(1998) 2 SCC 493] regardinginterpretation of Section 195(1)(b)(ii) of the Code of CriminalProcedure, 1973 (for short “CrPC”), this appeal has been placedFbefore the present Bench.”

24. The Court first spoke of the broad scheme of Section 195 ofthe CrPC, which deals with three distinct categories of offences, andheld that the category of offences contained in Section 195(1)(b)(ii) oughtto be read along with the offences contained in Section 195(1)(a) andG195(1)(b)(i), which are clearly offences which directly affect either thefunctioning or discharge of duties of a public servant or of courts ofjustice. This was stated in paragraph 10 of the judgment as follows:

“10. The scheme of the statutory provision may now be examined.Broadly, Section 195 CrPC deals with three distinct categories ofoffences which have been described in clauses (a), (b)(i) andH

(b) (ii) and they relate to (1) contempt of lawful authority of publicservants, (2) offences against public justice, and (3) offencesrelating to documents given in evidence. Clause (a) deals withoffences punishable under Sections 172 to 188 IPC which occurin Chapter X IPC and the heading of the Chapter is — “OfContempts of the Lawful Authority of Public Servants”. Theseare offences which directly affect the functioning of or dischargeof lawful duties of a public servant. Clause (b)(i) refers to offencesin Chapter XI IPC which is headed as — “Of False Evidenceand Offences Against Public Justice”. The offences mentionedin this clause clearly relate to giving or fabricating false evidenceor making a false declaration in any judicial proceeding or beforea court of justice or before a public servant who is bound orauthorised by law to receive such declaration, and also to someother offences which have a direct correlation with the proceedingsin a court of justice (Sections 205 and 211 IPC). This being thescheme of two provisions or clauses of Section 195 viz. that theoffence should be such which has direct bearing or affects thefunctioning or discharge of lawful duties of a public servant orhas a direct correlation with the proceedings in a court of justice,the expression “when such offence is alleged to have beencommitted in respect of a document produced or given in evidencein a proceeding in any court” occurring in clause (b)(ii) shouldnormally mean commission of such an offence after the documenthas actually been produced or given in evidence in the court. Thesituation or contingency where an offence as enumerated in thisclause has already been committed earlier and later on thedocument is produced or is given in evidence in court, does notappear to be in tune with clauses (a)(i) and (b)(i) and consequentlywith the scheme of Section 195 CrPC. This indicates that clause(b)(ii) contemplates a situation where the offences enumeratedtherein are committed with respect to a document subsequent toits production or giving in evidence in a proceeding in any court.”

25. The Chapter heading of Chapter XXVI of the CrPC, whichcontains Sections 340 and 341 was then referred to – the heading reading“Provisions as to Offences Affecting the Administration of Justice”, whichaccording to the Court also indicated that the offences mentioned inSection 195(1)(b)(ii) are offences which directly affect the administration AB

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Aof justice. After referring to various judgments, the Court then explainedthe difference between Section 195(1)(c) of the Code of CriminalProcedure, 1898 and Section 195(1)(b)(ii) of the CrPC, 1973 as follows:

“19. As mentioned earlier, the words “by a party to any proceedingin any court” occurring in Section 195(1)(c) of the old Code haveBbeen omitted in Section 195(1)(b)(ii) CrPC. Why these wordswere deleted in the corresponding provision of the Code of CriminalProcedure, 1973 will be apparent from the 41st Report of theLaw Commission which said as under in para 15.39:

“15.39. The purpose of the section is to bar private prosecutionsCwhere the course of justice is sought to be perverted leaving tothe court itself to uphold its dignity and prestige. On principle thereis no reason why the safeguard in clause (c) should not apply tooffences committed by witnesses also. Witnesses need as muchprotection against vexatious prosecutions as parties and the courtshould have as much control over the acts of witnesses that enterDas 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 whichforms the basis of Section 195.”

20. Since the object of deletion of the words “by a party to anyEproceeding in any court” occurring in Section 195(1)(c) of the oldCode is to afford protection to witnesses also, the interpretationplaced on the said provision in the earlier decisions would still holdgood.”

26. Importantly, the Court then stated that Section 195 of the CrPCFis an exception to the general provision contained in Section 190 thereof,and creates an embargo upon the power of the Court to take cognizanceof certain types of offences enumerated under Section 195, which mustbe necessarily follow the drill contained in Section 340 of the CrPC (seeparagraph 21). An important reason is then given by the Court, which isGthat the victim of a forged document which is forged outside the courtpremises and before being introduced in a Court proceeding, would renderthe victim of such forgery remediless, in that it would otherwise be leftonly to the court mentioned in Section 340 of the CrPC who decides asto whether a complaint ought or ought not to be lodged in respect ofsuch complaint. Paragraph 23 therefore states:H

M/S BANDEKAR BROTHERS PVT. LTD. & ANR v.PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]

“23. In view of the language used in Section 340 CrPC the courtis not bound to make a complaint regarding commission of anoffence referred to in Section 195(1)(b), as the section isconditioned by the words “court is of opinion that it is expedient inthe interests of justice”. This shows that such a course will beadopted only if the interest of justice requires and not in everycase. Before filing of the complaint, the court may hold apreliminary enquiry and record a finding to the effect that it isexpedient in the interests of justice that enquiry should be madeinto any of the offences referred to in Section 195(1)(b). Thisexpediency will normally be judged by the court by weighing notthe magnitude of injury suffered by the person affected by suchforgery or forged document, but having regard to the effect orimpact, such commission of offence has upon administration ofjustice. It is possible that such forged document or forgery maycause a very serious or substantial injury to a person in the sensethat it may deprive him of a very valuable property or status orthe like, but such document may be just a piece of evidenceproduced or given in evidence in court, where voluminous evidencemay have been adduced and the effect of such piece of evidenceon the broad concept of administration of justice may be minimal.In such circumstances, the court may not consider it expedient inthe interest of justice to make a complaint. The broad view ofclause (b)(ii), as canvassed by learned counsel for the appellants,would render the victim of such forgery or forged documentremediless. Any interpretation which leads to a situation where avictim of a crime is rendered remediless, has to be discarded.”

27. Paragraph 25 of the judgment then refers to how the broaderinterpretation that was accepted in Surjit Singh (supra) would be capableof great misuse. This was put by the Court as follows:

“25. An enlarged interpretation to Section 195(1)(b)(ii), wherebythe bar created by the said provision would also operate whereafter commission of an act of forgery the document is subsequentlyproduced in court, is capable of great misuse. As pointed outin SachidaNand Singh [(1998) 2 SCC 493] after preparing aforged document or committing an act of forgery, a person maymanage to get a proceeding instituted in any civil, criminal orrevenue court, either by himself or through someone set up by ABC

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Ahim and simply file the document in the said proceeding. He wouldthus be protected from prosecution, either at the instance of aprivate party or the police until the court, where the document hasbeen filed, itself chooses to file a complaint. The litigation may bea prolonged one due to which the actual trial of such a personmay be delayed indefinitely. Such an interpretation would be highlyBdetrimental to the interest of the society at large.”

28. The Court then held that where it is possible, interpretativelyspeaking, an impracticable result should be avoided (see paragraphs 26and 27). The Court, which was dealing with a forged will that had beenintroduced in Court proceedings after it was forged, therefore concluded:C

“33. In view of the discussion made above, we are of the opinionthat SachidaNand Singh [(1998) 2 SCC 493] has been correctlydecided and the view taken therein is the correct view. Section195(1)(b)(ii) CrPC would be attracted only when the offencesenumerated in the said provision have been committed withDrespect to a document after it has been produced or given inevidence in a proceeding in any court i.e. during the time whenthe document was in custodia legis.

34. In the present case, the Will has been produced in the courtsubsequently. It is nobody’s case that any offence as enumeratedEin Section 195(1)(b)(ii) was committed in respect to the said Willafter it had been produced or filed in the Court of District Judge.Therefore, the bar created by Section 195(1)(b)(ii) CrPC wouldnot come into play and there is no embargo on the power of thecourt to take cognizance of the offence on the basis of theFcomplaint filed by the respondents. The view taken by the learnedAdditional Sessions Judge and the High Court is perfectly correctand calls for no interference.”

29. Thus, Iqbal Singh Marwah (supra) is clear authority for theproposition that in cases which fall under Section 195(1)(b)(ii) of theGCrPC, the document that is said to have been forged should be custodialegis after whichthe forgery takes place. That this judgment has beenfollowed in several subsequent judgments is beyond cavil – see MaheshChand Sharma v. State of U.P and Ors.(2009) 15 SCC 519 (atparagraphs 21-23); C.P. Subhash v. Inspector of Police, Chennaiand Ors. (2013) 11 SCC 559 (at paragraphs 12 and 13); KishorbhaiH

Gandubhai Pethani v. State of Gujarat and Anr. (2014) 13 SCC 539(at paragraphs 14 and 15) and Vishnu Chandru Gaonkar v. N.M.Dessai (2018) 5 SCC 422 (at paragraphs 14 and 17).

30. However, Shri Mishra, undaunted by the fact that Iqbal SinghMarwah (supra) and its progeny are all cases relatable to Section195(1)(b)(ii) of theCrPC, has argued that the same reasoning ought toapply to cases falling under Section 195(1)(b)(i) of the CrPC.First andforemost, as has been pointed out hereinabove, every judgment thatfollows Iqbal Singh Marwah (supra) is in the context of offencesmentioned in Section 195(1)(b)(ii) of the CrPC. Secondly, there is directauthority for the proposition that the ratio in Iqbal Singh Marwah (supra)cannot be extended to cases governed by Section 195(1)(b)(i) of theCrPC.

31. Thus, in Kailash Mangal v. Ramesh Chand (2015) 15 SCC729, this Court was confronted with the conviction of the appellant underSections 193 and 419 of the IPC in a case initiated on a private complaint.Iqbal Singh Marwah (supra) was put in the forefront of the argument,stating that the offence that had been committed on the facts of thiscase had been committed with respect to a document prior to its beingcustodia legis. This Court distinguished Iqbal Singh Marwah (supra)as follows:

“9. While restoring the conviction of the appellant under Section193 IPC, the High Court has relied upon a decision of theConstitution Bench of this Court in Iqbal Singh Marwahv. Meenakshi Marwah. A Constitution Bench of this Courtin Iqbal Singh Marwah case held that the protection engraftedunder Section 195(1)(b)(ii) CrPC would be attracted only whenthe offence enumerated in the said provisions has been committedwith respect to a document after it had been produced or given inevidence in proceedings in any court i.e. during the time when thedocument was in custodia legis. Where the forgery was committedbefore the document was filed in the Court, the High Court washeld not justified in quashing the prosecution of the accused underSections 467, 468, 471, 472 and 477-A IPC on the ground that thecomplaint was barred by the provisions of Section 195(1)(b)(ii)CrPC. Section 195(1)(b)(ii) CrPC would be attracted only whenthe offences enumerated in the provision have been committedwith respect to a document after it has been produced or given in A

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Aevidence in a proceeding in any court i.e. during the time whenthe document was in custodia legis.

10. In the instant case, the false affidavit alleged to have beenfiled by the appellant was in a proceeding pending before the civilcourt and the offence falls under Section 193 IPC and theBproceeding ought to have been initiated on the complaint in writingby that court under Section 195(1)(b)(i) IPC. Since the offence issaid to have been committed in relation to or in a proceeding in acivil court, the case of Iqbal Singh Marwah is not applicable tothe instant case.”

C32. Likewise, in a recent judgment in Narendra KumarSrivastava v. State of Biharand Ors. (2019) 3 SCC 318, the Courtwas concerned with false affidavits that had been prepared/forged outsidethe Court. This being so, the question that arose before the Court waswhether the Magistrate was justified in taking cognizance of an offencepunishable under Section 193 of the IPC on the basis of a privateDcomplaint.This Court held:

“13. It is clear from sub-section (1)(b) of Section 195 CrPC thatthe section deals with two separate set of offences:

(i) of any offence punishable under Sections 193 to 196 (bothEinclusive), 199, 200, 205 to 211 (both inclusive) and 228 IPC, whensuch offence is alleged to have been committed in, or in relationto, any proceeding in any court; [Section 195(1)(b)(i)]

(ii) of any offence described in Section 463, or punishable underSection 471, Section 475 or Section 476 IPC, when such offenceFis alleged to have been committed in respect of a documentproduced or given in evidence in a proceeding in any court. [Section195(1)(b)(ii)].

14. On the reading of these sections, it can be easily seen that theoffences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) areclearly distinct. The first category of offences refers to offencesGof false evidence and offences against public justice, whereas,the second category of offences relates to offences in respect ofa document produced or given in evidence in a proceeding in anycourt.

H

15. Section 195 CrPC lays down a rule to be followed by thecourt which is to take cognizance of an offence specified thereinbut contains no direction for the guidance of the court which desiresto initiate prosecution in respect of an offence alleged to havebeen committed in or in relation to a proceeding in the latter court.For that purpose, one must turn to Section 340 which requires thecourt desiring to put the law in motion to prefer a complaint eithersuo motu or an application made to it in that behalf.

xxx xxxxxx

17. Section 340 CrPC makes it clear that a prosecution underthis section can be initiated only by the sanction of the court underwhose proceedings an offence referred to in Section 195(1)(b)has allegedly been committed. The object of this section is toascertain whether any offence affecting administration of justicehas been committed in relation to any document produced or givenin evidence in court during the time when the document orevidence was in custodia legis and whether it is also expedient inthe interest of justice to take such action. The court shall not onlyconsider prima facie case but also see whether it is in or againstpublic interest to allow a criminal proceeding to be instituted.

xxx xxxxxx

21. As already mentioned, clauses under Section 195(1)(b) CrPCi.e. sub-section 195(1)(b)(i) and sub-section 195(1)(b)(ii) caterto separate offences. Though Section 340 CrPC is a generic sectionfor offences committed under Section 195(1)(b), the same hasdifferent and exclusive application to clauses (i) and (ii) of Section195(1)(b) CrPC.

22. In SachidaNand Singh [(1998) 2 SCC 493] relied on by thelearned counsel for the appellant, this Court was considering thequestion as to whether the bar contained in Section 195(1)(b)(ii)CrPC is applicable to a case where forgery of the document wascommitted before the document was produced in a court. It washeld: (SCC pp. 497 & 501, paras 6 & 23)

“6. A reading of the clause reveals two main postulates foroperation of the bar mentioned there. First is, there must beallegation that an offence (it should be either an offence describedin Section 463 or any other offence punishable under Sections A

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471, 475 and 476 IPC) has been committed. Second is that suchoffence should have been committed in respect of a documentproduced or given in evidence in a proceeding in any court. Thereis no dispute before us that if forgery has been committed whilethe document was in the custody of a court, then prosecution canbe launched only with a complaint made by that court. There isalso no dispute that if forgery was committed with a documentwhich has not been produced in a court then the prosecution wouldlie at the instance of any person. If so, will its production in acourt make all the difference?

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23. The sequitur of the above discussion is that the bar containedin Section 195(1)(b)(ii) of the Code is not applicable to a casewhere forgery of the document was committed before thedocument was produced in a court. Accordingly we dismiss thisappeal.”

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23. In SachidaNand Singh, this Court had dealt with Section195(1)(b)(ii) CrPC unlike the present case which is covered bythe preceding clause of the section. The category of offenceswhich fall under Section 195(1)(b)(i) CrPC refer to the offenceof giving false evidence and offences against public justice whichis distinctly different from those offences under Section195(1)(b)(ii) CrPC, where a dispute could arise whether theoffence of forging a document was committed outside the courtor when it was in the custody of the court. Hence, this decisionhas no application to the facts of the present case.

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24. The case in hand squarely falls within the category of casesfalling under Section 195(1)(b)(i) CrPC as the offence is punishableunder Section 193 IPC. Therefore, the Magistrate has erred intaking cognizance of the offence on the basis of a private complaint.The High Court, in our view, has rightly set aside the order of theGMagistrate. However, having regard to the facts andcircumstances of the case, we deem it proper to set aside thecosts imposed by the High Court.”

33. The aforesaid judgments clearly lay down that when Section195(1)(b)(i) of the CrPC is attracted, the ratio of Iqbal Singh Marwah(supra), which approved Sachida Nand Singh and Anr. v. State ofH

Bihar and Anr. (1998) 2 SCC 493,is not attracted, and that therefore, iffalse evidence is created outside the Court premises attracting Sections191/192 of the IPC, the aforesaid ratio would not apply so as to validatea private complaint filed for offences made out under these sections.

34. At this stage, it is important to examine the complaints dated11.08.2019 filed in the present case. The first complaint, after setting outsome facts, clearly states:

“3. This Application is made under the provisions of Section 340r/w section 195 of the Cr.P.C, 1973, (hereinafter called for short“the Said Code”) seeking an order of inquiry into an offencecommitted by Accused under the provisions of Section 191 and193 of the Indian Penal Code, 1860.(hereinafter called “PenalCode”) An offence under these provisions have been committedby the Accused in relation to the proceedings before the CivilJudge Senior Division at Bicholim in Spl. Civil Suits No. 7/2000/A, 8/2000/A, 14/2000/A, 21/2000/A (first 4 suits) and 1/2003/A(the 5th suit, which stands withdrawn after completion ofevidence). An offence under the above said provisions is alsocommitted in respect of documents in the above suits for which aseparate criminal complaint is being filed. Forged/manipulateddocuments have been produced and given in evidence in the aboveproceedings. All the above suits/proceedings are within thejurisdiction of this Hon’ble Court.”

35. The complaint then refers to false statements made by theRespondents/accused in their Written Statements and Counter Claimsin the first four suits, which are pleadings before the Court, and thengoes on to state:

“14. The Complainants state that both the Accused No. 2 andAccused No. 3 have made declarations on a subject which theyare bound by law and has, in fact, made Statements, which arefalse and which both the Accused know or believe to be false ordoes not believe it to be true, which is also applicable to the AccusedNo. 4 to 10 herein. The Accused 2 has given false evidence.Moreover, circumstances are caused by the Accused 2 to makingfalse entries in any books or record intending that suchcircumstance, false entry or false statements does appear inevidence in a judicial proceedings before the Hon’ble Civil JudgeSenior Division at Bicholim and, therefore, the false entry and A

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false statements so appearing in evidence has caused persons insuch proceedings to form a opinion upon the evidence or entertainan erroneous opinion touching any point material to the result ofsuch proceedings.”

36. Various particulars of fabricated documents are then given asBfollows:

“f) In all the 5 Suits, the Accused produced some fabricateddocuments. Regarding one of such documents being a typedstatement dated 3.09.1998 confronted to the Complainants Witnessduring his cross, a Xerox copy was first shown with handwrittenremarks of page 2 thereof of an employee of the Accused. Whenthe said witness declined to comment on the said Xerox copy onthe next date, the original typed statement with the said handwrittenremark torn/missing therein was shown to the witness. Whereasin the common Affidavit dated 10.02.2003 filed by late V.G. Quenimin the first 4 suits at para 38 stated:

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“I say that in the torn portion of page one there were only initialsof Shri Prabhu from my office. So also in the torn portion of page2 the words written thereon were “checked with the previousstatement and found correct” bearing initials of Mr. Vikas Naikwho is working in my office as Accountant. I cannot explain howthe said portion got torn”

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In addition, there are other fabricated documents produced by theAccused in the said suits which would be the subject matter ofcomplaint u/s 192 being filed by the Complainants herein separately.

g) The Accounts were manipulated, false entries were made intheir books of Account, Profit and Loss Account, Balance Sheetetc. The counterclaims filed in suit No.7/2000/A and 8/2000/Aagainst complaint No.1 and 2 despite the above pointed outfabrication/manipulation were also written off as Bad Debts ason 31.03.2000 in their audited books of Account.

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h)The Accused No.1 claimed that the Mutual, Open and CurrentAccount was closed on 09.03.2000 whereas the Accused No.2claimed that the SAME mutual open and current Account wasclosed on 09.03.2000 and 31.03.2000 i.e. on two occasions andfinally during the cross examination of the Accused No.2 herein H

in the 5th suit he has admitted that the same were not the ledgerAccounts.”

37. The prayer made in this complaint is then as follows:

“IT IS THEREFORE PRAYED THAT THIS HON’BLE COURTBE PLEASED TO:

(b) make a Complaint thereof in writing;

(c) send it to a Magistrate of the First Class having Jurisdiction; (d) take sufficient Security for appearance of the Accused beforesuch Magistrate, or if the alleged offence is non- bailable and theCourt thinks it necessary so to do, send the Accused in custody tosuch Magistrate; and (e) bind over any person to appear and give evidence before suchMagistrate.”

38. So far as the second complaint is concerned, like the firstcomplaint, this was also stated to be an application under Sections 340read with 195 of the CrPC as follows:

“3. This Application is made under the provisions of Section 340read with section 195 of the Cr.PC, 1973, (hereinafter called forshort the Said Code”) seeking an order of inquiry into an offencecommitted by Accused under the provisions of Section 192 and193 of the Indian Penal Code, 1860.(hereinafter called “PenalCode”) An offence under these provisions have been committedby the Accused in relation to the proceedings in the Court of theCivil Judge Senior Division at Bicholim i.e. in Spl. Civil Suits No.7/2000/A, 8/2000/A, 14/2000/A, 21/2000/A (first 4 Suits) and Spl.Civil Suit No. 1/2003/A (the 5th Suit, which stands withdrawnafter completion of evidence) An offence under the abovesaidprovisions is committed in respect of documents in the above suitsfor which a separate criminal complaint is being filed. Forged/manipulated documents have been produced and given in Evidencein the above proceedings. All the above suits are within thejurisdiction of this Hon’ble Court.

a) Forged a Debit Note dated 09.03.2000 for Rs.1,88,27796/-alongwith the statements annexed thereto sent under the cover of A

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Aletter dated 09.03.2000. Hereto marked as EXHIBIT-C Colly iscopy of said documents.

b)The said Debit Note dated 09.03.2000 for Rs. 1,88,27,796/- at(a) above is the subject matter of counterclaim filed by the Accusedagainst the Complainant No. 1 in Spl. Civil Suit No. 7/2000/ABwhich Debit Note is reflecting in the manipulated Ledger extractannexed to the written statement dated 10.03.2000 at Exh. Athereto which document is produced and given in evidence inSpl. Civil Suit No.1/2003/A which document is at EXHIBIT-FCOLLY herein.

Cc) Forged Debit Note dated 31.03.2000 for Rs.76,19,869/-alongwith the statements annexed thereto sent under the cover ofletter dated 4.07.2000. Hereto annexed and marked as EXHIBIT- D Colly is the copy of the said documents.

d) Forged a Debit Note dated 31.03.2000 for the sum of Rs.D29,081/- also sent under the cover of the said letter dated04.07.2000. Hereto marked as EXHIBIT-D Colly is the copy ofthe said document.

e) The said 2 Debit Notes at (c) and (d) above for total amountingto Rs. 76,48,950/- is subject matter of the counterclaim filed byEthe Accused against the Complainant No. 2 in Spl. Civil Suit No.8/2000/A, which Debit Notes are reflecting in the manipulatedledger extract annexed to the written statement and counterclaimdated 04.07.2000 at Exh: B thereto, which document is producedand given in evidence in Spl. Civil Suit No. 1/2003/A whichdocument is at EXHIBIT-J Colly herein.F

In this Complaint, the Complainants request this Hon’ble Court tomake a preliminary enquiry it deems fit and necessary. This Hon’bleCourt will also be pleased to record (a) a record of evidence tothis effect (b) to make a complaint thereof in writing (c) andthereafter send it to a First Class Magistrate Court, havingGjurisdiction (d) pass such orders as this Hon’ble Court may deemfit and proper considering the facts and circumstances of the casefor punishing the Accused under the Provisions of Section 193and 196 of the said Penal Code.”

39. Then the complaint goes on to refer to various false affidavits/Hstatements made by the accused, as follows:

“In such circumstances, he has declared on false affidavits/statements in all 5 suits being Spl. Civil Suits No. 7/2000/A, 8/2000/A, 14/2000/A, 21/2000/A and 1/2003/A respectively. He hasalso fabricated documents, false entries in his books of account,in order to file his counter claims in Spl. Civil Suits No. 7/2000/Aand 8/2000/A. The false entries and the fabricated documentscreated by the Accused No. 2 are as follows:

(i) Forged a Debit Note dated 09.03.2000 with statements annexedthereto and manipulated Ledger Account and claimed an amountof Rs. 1,88,27,796/- from the Complainant No. 1 in their counterclaim which are at EXHIBIT-C Colly herein.

(ii) Manipulated ledger extract of the Account of the ComplainantNo.1 appearing in the audited books of account of the AccusedNo.1 on the basis of the counterclaim for Rs.1,88,27,796/- filedby the Accused in Spl. Civil Suit No.7/2000/A annexed as Exh.‘A’ to the Written Statement and counterclaim dated 10.03.2000at EXHIBIT-F Colly herein.

(iii) Forged a Debit Note dated 31 March, 2000 for an amount ofRs.76, 19,869/- with statements annexed thereto and manipulatedLedger Account and claimed an amount from the ComplainantNo. 2 in their counter claim sent under the cover of letter dated04.07.2000 are at EXHIBIT-D Colly herein.

(iv) Forged a Debit Note dated 31 March, 2000 for the sum ofRs.29,081/- purportedly for Sales Tax and manipulated LedgerAccount and claimed an amount from the Complainant No. 2 intheir counter claim sent under the cover of letter dated 04.07.2000is at EXHIBIT-D Colly herein.

(v) Manipulated Ledger extract of the Account of ComplainantNo.2 purportedly appearing in the audited books of account of theAccused No.1 on the basis of the counterclaim for a sum ofRs.76,48,950/- filed by the Accused in Spl. Civil Suit No.8/2000/Aannexed at Exh. ‘B’ to the Written Statement and counterclaimdated 04.07.2000 at EXHIBIT-J Colly herein.

Apart from the above mentioned debit notes, many manipulations,false entries were made by the Accused in their books of Account,Profit and loss Account, Balance sheet etc. In the 5th Suit beingSpl. Civil Suit No.1/2003/A, Accused No. 2 produced copy of the AB

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Aaudited Profit and Loss Account and Balance Sheet as on 31/03/2000 with annexures, Tax Audit Reports issued by their Auditorsand some supporting Ledger Accounts, Journal Vouchers et., inrespect of all the transactions of Ore claimed by late V. G. Quenimthe then Proprietor of the Accused No.1. The suit claim in the 5thsuit being Spl. Civil Suit No. 1/2003/A as also the counter claimsBfiled in Spl. Civil Suits No.7/2000/A and 8/2000/A againstComplainant No. 1 and 2 were neither standing to the debit of tothe Current Account of the respective Complainants herein northe same were credited to the sale of ore account in the books ofaccount of the Accused No.1 but instead, they have been writtenCoff as Bad Debts as on 31.03.2000 in their audited books ofaccount.”

40. Importantly, the averment made in paragraph 11 of thecomplaint reads as follows:

“11.The Complainants crave leave to refer to and rely uponthecertified copies of the Cross-examination and the variousbooksof account which has been manipulated, forged by making falseentry by the Accused. The purpose of theAccused is to influencethe Hon’ble Court to form an opinion upon such evidence.”

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41. As a result, the second complaint ends stating:

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“15. The Complainants state that both the Accused No. 2 andAccused No. 3 have made a declarations on a subject which theyare bound by law and has, in fact, made Statements, which arefalse and which both the Accused know or believe to be false ordoes not believe it to be true, which is also applicable to the AccusedFNo.4 to 10 herein. The Accused No. 2 has given false evidence.Moreover, circumstances are caused by the Accused 2 and 3 tomaking false entries in any books or record intending that suchcircumstance, false entry or false statements does appear inevidence in a judicial proceedings before the Hon’ble Civil JudgeGSenior Division at Bicholim and, therefore, the false entry andfalse statements so appearing in evidence has caused persons insuch proceedings to form a opinion upon the evidence or entertainan erroneous opinion touching any point material to the result ofsuch proceedings.

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16. The Accused No.2 and 4 to 10 herein respectively joined asLR’s upon the death of Mr.V.G. Quenim the then Proprietor ofthe Accused No.1 on 20.07.2007, in first 4 suits. Similarly, in the 5suit the Accused Nos.2 to 10 herein respectively joined as LR’stherein.

17. After the Accused No.2 to 10 abovenamed were brought onrecord in the said 5 suits in Aug./Sept. 2007, the said Accusedhave not even made any attempt to correct the false statementsin the pleadings in all the respective suits which continues till datewith the falsehood. Besides, the Accused No.2 and 3 are directlyinvolved. Thus the Accused No.2 to 10 herein have become theco-proprietors of M/s. V.G. Quenim upon the death of late V.G.Quenim the original Proprietor of the Accused No.1 herein.

18. It is submitted that the Accused herein have therefore.committed an offence w/s. 192 of the Indian Penal Code and theAccused herein are, punishable under the provisions of Section193 of the Indian Penal Code.

IT IS THEREFORE PRAYED THAT THIS HON’BLECOURT BE PLEASED TO:

(b) make a Complaint thereof in writing:

(c) send it to a Magistrate of the First Class having Jurisdiction; (d) take sufficient Security for appearance of the Accused beforesuch Magistrate, or if the alleged offence is non- bailable and theCourt thinks it necessary so to do, send the Accused in custody tosuch Magistrate; and (e) bind over any person to appear and give evidence before suchMagistrate.”

42. A perusal of the aforesaid complaints leaves no manner ofdoubt that the first complaint attracts the provisions of Section 191 ofthe IPC, and the second complaint attracts the provisions of Section 192of the IPC. However, for the first time in the counter-affidavit to therevision applicationthat was filed by the Respondents before the learnedSessions Judge, the Appellants stated:

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A“II. The said application is liable/ought to be dismissed in as muchas a perusal of the complaint and its accompaniments not onlymake out a case under section 192/193 IPC but the same alsoleads to a conclusion that the offences under sections 463, 464,465, 467, 468, 469, 471, 474, 475 & 477-A of IPC have also beenmade out and as such, the accused persons be proceededBaccordingly.

xxx xxxxxx

V.The said application deserves to be dismissed because the lawrelating to the bar engrafted in section 195(1)(b)(ii) of the CodeCof Criminal Procedure is not applicable to a case where forgeryof the document was committed before the document wasproduced in the court. As such, the documents forgery of whichhave been committed were not the custodia legis.”

43. There is no doubt that realising the difficulties in their way, theDAppellants suddenly changed course, and applied to the Magistrate videapplication dated 09.05.2011 to convert what was a properly draftedapplication under Section 195 read with section 340 of the CrPC, into aprivate complaint. A reading of the two complaints leaves no manner ofdoubt that they have been drafted keeping the ingredients of Sections191 and 192 of the IPC alone in mind – the only argument from theEAppellants now being that since certain debit notes were forged prior totheir being introduced in the court proceedings, not only would the ratioin Iqbal Singh Marwah (supra) apply, but also that the ingredients ofthe “forgery” sections of the IPC have now been made out. While it isimportant to bear in mind that in genuine cases where the ingredients ofFforgery as defined in Section 463 of the IPC have been made out, andthat therefore, a private complainant should not be left remediless, yet itis equally important to bear in mind the admonition laid down in an earlyjudgment of this Court. Thus, in Basir-ul-Huq and Ors. v. State ofWest Bengal (1953) SCR 836, this Court cautioned (at page 846):

G“Though, in our judgment, Section 195 does not bar the trial of anaccused person for a distinct offence disclosed by the same factsand which is not included within the ambit of that section, it hasalso to be borne in mind that the provisions of that section cannotbe evaded by resorting to devices or camouflages. The testwhether there is evasion of the section or not is whether the factsHdisclose primarily and essentially an offence for which a complaint

of the court or of the public servant is required. In other words,the provisions of the section cannot be evaded by the device ofcharging a person with an offence to which that section does notapply and then convicting him of an offence to which it does,upon the ground that such latter offence is a minor offence of thesame character, or by describing the offence as being onepunishable under some other section of the Indian Penal Code,though in truth and substance the offence falls in the category ofsections mentioned in Section 195 of the Criminal Procedure Code.Merely by changing the garb or label of an offence which isessentially an offence covered by the provisions of Section 195prosecution for such an offence cannot be taken cognizance ofby misdescribing it or by putting a wrong label on it.”

44. Equally important to remember is that if in the course of thesame transaction two separate offences are made out, for one of whichSection 195 of the CrPCis not attracted, and it is not possible to splitthem up, the drill of Section 195(1)(b) of the CrPC must be followed.Thus, in State of Karnataka v. Hemareddy (1981) 2 SCC 185, thisCourt referred to a judgment of the Madras High Court (Re V.V.L.Narasimhamurthy AIR 1955 Mad 237) and approved its ratio as follows:

“7…In the third case, Somasundaram, J., has observed:

“The main point on which Mr Jayarama Aiyar appearing for thepetitioner seeks to quash this committal is that on the facts anoffence under Section 193 IPC is disclosed for which the courtcannot take cognizance without a complaint by the court asprovided under Section 195(1)(b) of the Criminal Procedure Code.The first question which arises for consideration is whether onthe facts mentioned in the complaint, an offence under Section193, IPC is revealed. Section 193 reads as follows:

Whoever intentionally gives false evidence in any stage of ajudicial proceeding, or fabricates false evidence for thepurpose of being used in any stage of a judicial proceeding,shall be punished with imprisonment of either description fora term which may extend to 7 years, and shall also be liableto fine.

‘Fabrication of false evidence’ is defined in Section 192. Therelevant portion of it is:

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Whoever causes any circumstance to exist intending that suchcircumstance may appear in evidence in a judicial proceedingand that such circumstance may cause any person who insuch proceeding is to form an opinion upon the evidence toentertain an erroneous opinion touching any point materialto the result of such proceeding is said ‘to fabricate falseevidence’.

The effect of the allegations in the complaint preferred by thecomplainant is that the petitioner has caused this will to come intoexistence intending that such will may cause the judge beforewhom the suit is filed to form an opinion that the will is a genuineone and, therefore, his minor daughter is entitled to the property.The allegation, therefore, in the complaint will undoubtedly fallunder Section 192 IPC. It will, therefore, amount to an offenceunder Section 193 IPC, i.e. fabricating false evidence for thepurpose of being used in the judicial proceeding. There is no doubtthat the facts disclosed will also amount to an offence underSections 467 and 471, IPC. For prosecuting this petitioner for anoffence under Sections 467 and 471, a complaint by the courtmay not be necessary as under Section 195(1)(b), Criminal PC acomplaint may be made only when it is committed by a party toany proceeding in any court.

Mr Jayarama Aiyar does not give up his contention that thepetitioner, though he appears only a guardian of the minor girl, isstill a party to the proceeding. But it is unnecessary to go into thequestion at the present moment and I reserve my opinion on thequestion whether the guardian can be a party to a proceeding ornot, as this case can be disposed of on the other point viz. thatwhen the allegations amount to an offence under Section 193IPC, a complaint of court is necessary under Section 195(1)(a),of theCriminal PC and this cannot be evaded by prosecuting theaccused for an offence for which a complaint of court is notnecessary.”

8. We agree with the view expressed by the learned Judge andhold that in cases where in the course of the same transaction anoffence for which no complaint by a court is necessary underSection 195(1)(b) of the Code of Criminal Procedure and anoffence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and holdthat the prosecution of the accused for the offences not mentionedin Section 195(1)(b) of the Code of Criminal Procedure should beupheld.”

45. Bearing these admonitions in mind, let us now see as to whetherthe “forging” of the debit notes, so strongly relied upon by Shri Mishraas being offences under Sections 463 and 464 of the IPC, can at all besaid to attract the provisions of these Sections.

46. Section 463 of the IPC speaks of “forgery” as being the makingof a “false document” or “false electronic record”, or a part thereof, todo the various things that are stated in thatsection. Unless a person issaid to make a false document or electronic record, Section 463 doesnot get attracted at all.The making of a “false document” is then dealtwith in Section 464 of the IPC.On the facts of the present case, we arenot concerned with thecategories of false documents identified underthe heads “Secondly” and “Thirdly” of Section 464. Shri Mishra statesthat the making of the debit notes by the Respondents in order to falselyclaim amounts owing to them would fall within the “First” category underSection 464.

47. The “First” category of Section 464 makes it clear that anyonewho dishonestly or fraudulently makes or executes a document with theintention of causing it to be believed that such document was made orexecuted by or by the authority of a person by whom or by whose authorityhe knows that it was not made, can be said to make a falsedocument.Several judgments of this Court have held that assumingdishonesty or fraud, the second ingredient of the “First” category ofSection 464 is that the document itself must be made by or by the authorityof a person by whom or by whose authority the person who creates theforgery knows that it was not made.If the second ingredient is foundmissing, the offence of forgery is not made out at all. Thus, in Devendrav. State of U.P. (2009) 7 SCC 495, this Court set out the followingfacts:

“5. On or about 22-8-1997, a sale deed was executed by Appellants1 and 2 in favour of Appellants 3 and 4. On 24-8-2005, a suit wasfiled by Respondent 2 and others for cancelling the aforesaid deedof sale dated 22-8-1997, which was registered as Civil Suit No.382 of 2005. The said suit is still pending in the Court of the learned A

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Civil Judge (Junior Division), Ghaziabad. In the said suit, however,it was averred that Solhu had four sons whereas in Suit No. 135of 1982, it was stated that Solhu had five sons. The appellantsfiled an application under Order 9 Rule 13 read with Section 151of the Code of Civil Procedure before the Court of the DeputyDistrict Magistrate (First Class), Ghaziabad praying for dismissalof Suit No. 135 of 1982. An application for impleadment was alsofiled by the appellants in Civil Miscellaneous Writ Petition No.17667 of 1985.

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6. On or about 21-9-2005, Respondent 2 filed an application inPolice Station Kavinagar, Ghaziabad wherein the City MagistrateCby an order dated 17-9-2005 passed an order to hear thecomplainant and register a first information report. Thereafter,Respondent 2 filed a first information report in Police Station SahniGate on 21-9-2005. The appellants filed an application for quashingthe said first information report before the High Court. It wasDmarked as Criminal Miscellaneous Writ Petition No. 10568 of2005.”

48. This Court held that the sale deed executed did not constitutea “false document” under Section 464 of the IPC as follows:

“18. Section 463 of the Penal Code reads as under:

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“463. Forgery.—Whoever makes any false documents or falseelectronic record or part of a document or electronic record,with intent to cause damage or injury, to the public or to anyperson, or to support any claim or title, or to cause any personto part with property, or to enter into any express or impliedFcontract, or with intent to commit fraud or that fraud may becommitted, commits forgery.”

According to Mr Das, making of a false document so as to supportany claim over title would constitute forgery within the meaningof the said provision and as a document was created for the purposeGof showing one-third share in the joint property by the appellantsalthough they were not entitled to therefor, they must be held tohave committed an offence.

19. Making of any false document, in view of the definition of“forgery” is the sine qua non therefor. What would amount tomaking of a false document is specified in Section 464 thereof.

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What is, therefore, necessary is to execute a document with theintention of causing it to be believed that such document inter aliawas made by the authority of a person by whom or by whoseauthority he knows that it was not made.

20. The appellants are the owners of the property. They haveexecuted a sale deed. Execution of the deed of sale is not denied.If somebody is aggrieved by the false assertions made in the saidsale deed, it would be the vendees and not the co-sharers. Theappellants have not been alleged to be guilty of creating any falsedocument.”

49. In Mohd. Ibrahim v. State of Bihar (2009) 8 SCC 751, itwas held that the execution of a sale deed by somebody in his own namequa property which is not his does not constitute making a “falsedocument” under Section 464 of the IPC, because he does notimpersonate the owner or falsely claim to be authorised or empoweredby the owner to execute the deed on the owner’s behalf. The Courtheld:

“13. The condition precedent for an offence under Sections 467and 471 is forgery. The condition precedent for forgery is makinga false document (or false electronic record or part thereof). Thiscase does not relate to any false electronic record. Therefore, thequestion is whether the first accused, in executing and registeringthe two sale deeds purporting to sell a property (even if it isassumed that it did not belong to him), can be said to have madeand executed false documents, in collusion with the other accused.

14. An analysis of Section 464 of the Penal Code shows that itdivides false documents into three categories:

1. The first is where a person dishonestly or fraudulently makesor executes a document with the intention of causing it to bebelieved that such document was made or executed by some otherperson, or by the authority of some other person, by whom or bywhose authority he knows it was not made or executed.

2. The second is where a person dishonestly or fraudulently, bycancellation or otherwise, alters a document in any material part,without lawful authority, after it has been made or executed byeither himself or any other person.

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3. The third is where a person dishonestly or fraudulently causesany person to sign, execute or alter a document knowing thatsuch person could not by reason of (a) unsoundness of mind; or(b) intoxication; or (c) deception practised upon him, know thecontents of the document or the nature of the alteration.

In short, a person is said to have made a “false document”, if (i)he made or executed a document claiming to be someone else orauthorised by someone else; or (ii) he altered or tampered adocument; or (iii) he obtained a document by practising deception,or from a person not in control of his senses.

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15. The sale deeds executed by the first appellant, clearly andobviously do not fall under the second and third categories of“false documents”. It therefore remains to be seen whether theclaim of the complainant that the execution of sale deeds by thefirst accused, who was in no way connected with the land,amounted to committing forgery of the documents with theintention of taking possession of the complainant’s land (and thatAccused 2 to 5 as the purchaser, witness, scribe and stamp vendor,colluded with the first accused in execution and registration of thesaid sale deeds) would bring the case under the first category.

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16. There is a fundamental difference between a person executingEa sale deed claiming that the property conveyed is his property,and a person executing a sale deed by impersonating the owneror falsely claiming to be authorised or empowered by the owner,to execute the deed on owner’s behalf. When a person executesa document conveying a property describing it as his, there areFtwo possibilities. The first is that he bona fide believes that theproperty actually belongs to him. The second is that he may bedishonestly or fraudulently claiming it to be his even though heknows that it is not his property. But to fall under first category of“false documents”, it is not sufficient that a document has beenmade or executed dishonestly or fraudulently. There is a furtherGrequirement that it should have been made with the intention ofcausing it to be believed that such document was made or executedby, or by the authority of a person, by whom or by whose authorityhe knows that it was not made or executed.

17. When a document is executed by a person claiming a propertywhich is not his, he is not claiming that he is someone else nor is H

he claiming that he is authorised by someone else. Therefore,execution of such document (purporting to convey some propertyof which he is not the owner) is not execution of a false documentas defined under Section 464 of the Code. If what is executed isnot a false document, there is no forgery. If there is no forgery,then neither Section 467 nor Section 471 of the Code areattracted.”

50. In Mir Nagvi Askari v. CBI (2009) 15 SCC 643, vouchersthat were made dishonestly by employees of a bank to profit a co-accusedwere held not to be “false documents” within the meaning of Section464 of the IPC, as they were not made with the intention of causing it tobe believed that the vouchers were made by or under the authority ofsomebody else.The facts necessary to attract Sections 463 and 464 ofthe IPC were set out by this Court in paragraph 3 as follows:

“3. Accused 1, 2, 4 and 5 in their capacity as public servants,were working in Fort Branch of Andhra Bank. They were chargedwith abuse of their position and acting dishonestly and fraudulently,as a result whereof undue pecuniary advantage is said to havebeen procured by Accused 3 by way of crediting banker’s chequeswithout them having been presented or sent for clearance and,thus, cheating Andhra Bank and dishonestly permitting substantialwithdrawals from his current account by Accused 3. They aresaid to have prepared false documents and used them as genuineones, with the intention to defraud and falsify entries in the booksof accounts of the Bank. They are also charged with entering intothe criminal conspiracy, as they, having been entrusted with theproperty of Andhra Bank, prepared credit and debit vouchers infavour of Accused 3, authorising credit of amounts of variouscheques to the account of Accused 3 without having actuallyreceived any banker’s cheques.”

51. This Court, however, held that Section 464 of the IPC was notattracted, as follows:

“164. A person is said to make a false document or record if hesatisfies one of the three conditions as noticed hereinbefore andprovided for under the said section. The first condition being thatthe document has been falsified with the intention of causing it tobe believed that such document has been made by a person, bywhom the person falsifying the document knows that it was not A

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Amade. Clearly the documents in question in the present case, evenif it be assumed to have been made dishonestly or fraudulently,had not been made with the intention of causing it to be believedthat they were made by or under the authority of someone else.The second criterion of the section deals with a case where aperson without lawful authority alters a document after it has beenBmade. There has been no allegation of alteration of the voucher inquestion after they have been made. Therefore, in our opinion thesecond criterion of the said section is also not applicable to thepresent case. The third and final condition of Section 464 dealswith a document, signed by a person who due to his mental capacityCdoes not know the contents of the documents which were madei.e. because of intoxication or unsoundness of mind, etc. Such isalso not the case before us. Indisputably therefore the accusedbefore us could not have been convicted with the making of afalse document.

D165. The learned Special Judge, therefore, in our opinion, erredin holding that the accused had prepared a false document, whichclearly, having regard to the provisions of the law, could not havebeen done.

166. Further, the offence of forgery deals with making of a falseEdocument with the specific intentions enumerated therein. Thesaid section has been reproduced below.

“463. Forgery.—Whoever makes any false documents or falseelectronic record or part of a document or electronic record, withintent to cause damage or injury, to the public or to any person, orFto support any claim or title, or to cause any person to part withproperty, or to enter into any express or implied contract, or withintent to commit fraud or that fraud may be committed, commitsforgery.”

However, since we have already held that the commission of theGsaid offence has not been convincingly established, the accusedcould not have been convicted for the offence of forgery. Thedefinition of “false document” is a part of the definition of “forgery”.Both must be read together. [Vimla (Dr.) v. Delhi Admn. [AIR1963 SC 1572] Accordingly, the accused could not have beentried for offence under Section 467 which deals with forgery of H

valuable securities, will, etc. or Section 471 i.e. using as genuine aforged document or Section 477-A i.e. falsification of accounts.The conviction of the accused for the said offences is accordinglyset aside.”

52. It is thus clear that even if we are to put aside all the avermentsmade in the two complaints (which clearly attract the provisions ofSections 191 and 192 of the Penal Code), and were to concentrate onlyon the debit notes that are said to have been “created” by theRespondents, it is clear that the debit notes were not “false documents”under Section 464 of the IPC, inasmuch they had not been made withthe intention of causing it to be believed that they were made by orunder the authority of some other person.Since this basic ingredient offorgery itself is not made out, none of the sections that are sought to berelied upon in Chapter XVIII of the IPC can thus be said to be evenprima facie attracted in the facts of this case.

53. It now remains to deal with some of the other submissions ofShri Mishra. The submission of Shri Mishra challenging the finding ofthe High Court that the Appellants did not file any proceedings underSection 482 of the CrPC to make a grievance that the complaint disclosesother offences also, and that the Magistrate ought to have issued processfor the same, has no legs to stand on. Whether a High Court acts suomotu under Section 482 of the CrPC is for the High Court to decide,being a discretion vested in the High Court to be exercised on the factsof the case. As we have seen, the facts of this case clearly show thatthe two complaints dated 11.08.2009 correctly invoked Section 195 readwith Section 340 of the CrPC, and were thensought to be converted intoprivate complaints, thereby attempting to fit a square peg in a round role.This has correctly been interdicted by the Sessions Court in revision,and by the High Court judgment under appeal.

54. Shri Mishra then argued that Surjit Singh (supra) had beenrelied upon by the High Court, which judgment was overruled in IqbalSingh Marwah (supra).Though this is correct, the reasoning that IqbalSingh Marwah (supra) is not applicable to the facts of the presentcase, to which the provisions of Section 195(1)(b)(ii) of the CrPC do notapply, is a finding made by the High Court in the impugned judgmentwhich is unexceptional. For this reason also, incorrect reliance based onSurjit Singh (supra) would not avail the Appellants in the present case.

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A55. Shri Mishra then relied upon Ram Dhan v. State of U.P. &Anr. (2012) 5 SCC 536.In this case, the real ratio of the case can befound in paragraphs 6 to 8, in which this Court held:

Ratio decidendi

“6. We find no merit in the petition. After investigation, charge-sheet has been filed against the petitioner and others under Sections177, 181, 182 and 195 IPC. The petitioner has suppressed thematerial fact and has not disclosed anywhere in this petition thathe had approached the High Court under Section 482 CrPC forquashing of the charge-sheet, which stood rejected vide orderdated 3-2-2010 [Ram Dhan v. State of U.P., Application underSection 482 No. 3310 of 2010, order dated 3-2-2010 (All)] andthe said order attained finality as has not been challenged anyfurther. Thus, he is guilty of suppressing the material fact whichmakes the petition liable to be dismissed only on this sole ground.

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7. We are of the view that it was necessary for the petitioner todisclose such a relevant fact. The learned Chief Judicial MagistrateDwhile deciding the application under Section 239 CrPC has madereference to the said order of the High Court dated 3-2-2010. Wehad been deprived of the opportunity to scrutinise the charge-sheet as well as the order of the High Court dated 3-2-2010 andto ascertain as to whether the grievance of the petitioner in respectEof the application of the provisions of Section 195 read with Section340 CrPC had been raised in that petition and as to whether evenif such plea has not been taken whether the petitioner can bepermitted to raise such a plea subsequently.

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8. In such a fact situation, the courts below may be right to theextent that the question of discharge under Section 239 CrPCFwas totally unwarranted in view of the order passed by the HighCourt on 3-2-2010. For the reasons best known to the petitioner,neither the copy of the charge-sheet nor of the order dated 3-2-2010 passed by the High Court have been placed on record.”

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“9. Be that as it may, the charge-sheet has been filed underSections 177, 181, 182, 195 and 420 IPC. Section 177 IPC dealswith an offence furnishing false information. Section 181 IPCdeals with false statement on oath. Section 182 IPC deals withfalse information with intent to cause public servant to use his H

lawful power to the injury of another person. Section 195 IPCdeals with giving or fabricating false evidence with intent toprocure conviction of offence punishable with imprisonment forlife or imprisonment.

10. At least the provisions of Sections 177 and 182 deal with thecases totally outside the court. Therefore, the question of attractingthe provisions of Sections 195 and 340 CrPC does not arise. Section195 IPC makes the fabrication of false evidence punishable. It isnot necessary that the fabrication of false evidence takes placeonly inside the court as it can also be fabricated outside the courtthough has been used in the court. Therefore, it may also notattract the provisions of Section 195 CrPC. (See SachidaNandSingh v. State of Bihar [(1998) 2 SCC 493])

11. Mr Ashok Kumar Sharma, learned counsel appearing for thepetitioner, has placed a very heavy reliance on the judgment ofthis Court in Abdul Rehman v. K.M. Anees-Ul-Haq [(2011) 10SCC 696]. However, it is evident from the judgment relied uponthat the judgment in SachidaNand Singh, which is of a largerBench, has not been brought to the notice of the Court. (Seealso Balasubramaniam v. State [(2002) 7 SCC 649])

12. The petitioner is guilty of suppressing the material fact.Admittedly, filing of successive petitions before the court amountsto abuse of the process of the court. Thus, we are not inclined toexamine the issue any further.

13. Considering the composite nature of the offences, we do notsee any cogent reason to interfere with the impugned order. Thepetition lacks merit and is, accordingly, dismissed.”

57. From this case it is impossible to cull out a ratio that insofar asan offence under Section 195 IPC is concerned, the provisions of Section195 CrPC would not be attracted. The Court’s mind was on suppressionof material facts, as a result of which, after making the statement madein paragraph 10, the Court then went on to state in paragraph 12 thatthey were not inclined to examine the issue any further in view ofsuppression of material facts, and the filing of successive petitions beforethe Court which amounts to abuse of process of the Court. One sentencetorn out of context cannot possibly avail the Appellant, given the detaileddiscussion in today’s judgment, after considering all relevant authorities.This judgment also, therefore, does not carry the matter any further.

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A58. Shri Mishra, as an alternative argument,then stated that it wasalways open for the Magistrate or Court to waive an irregularity once aMagistrate assumes jurisdiction under Section 190(1)(a) of the CrPCeven wrongly, and for this purpose, he referred to Section 460(e) of theCrPC. This provision is only attracted if a Magistrate,”not empowered”by law to take cognizance of an offence under clause (a) of SectionB190(1) of the CrPC, takes such cognizance erroneously, but in goodfaith. The “empowerment” spoke of is the jurisdiction of the Magistrateto proceed with the complaint. Section 460 of the CrPC cannot, anddoes not, apply to cases in which Section 195 of the CrPC is involvedinasmuchas Section 195 of the CrPC is an exception to Section 190 ofCthe CrPC, and is an absolute bar to taking cognizance of the offencesmentioned therein, unless the drill followed in Section 340 of the CrPC isobserved. “Empowerment” obviously does not refer to a mandatoryprovision in the nature of a statutory bar to taking cognizance.Thisargument also has no legs to stand on, and is therefore rejected.So alsothe further argument that proceedings may be allowed to continue beforeDthe Magistrate, who can then frame charges based on the “forgery”sections of the IPC – we have held that the complaints read as a wholedo not make out a case under Section 463 and 464 of the IPC, butinstead clearly attract the provisions of 191 and 192 of the IPC.Forthese reasons also, this submission must needs be rejected.

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59. As has been mentioned hereinabove, the concerned JudicialMagistrate by his order dated 13.10.2011 converted the two complaintsinto private complaints and then issued process under sections 191, 192and 193 of the IPC. This judgment has been set aside in revision by thelearned Additional Sessions Judge in his judgment dated 05.03.2013, inFwhich the learned Judge held:

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The revision petitions are allowed. The impugned orders ofissuing process against the petitioners/original accused arequashed and setaside.

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The petitioners/accused in Criminal Revision Application No.17/2012, 18/2012 and 20/2012 stand discharged, of offencepunishable under section 193 read with 191 of Indian PenalCode and the petitioners/accused in Criminal RevisionApplication No. 16/2012 A. and 19/2012 stand discharged of H

an offence punishable under sections 193 read with 192 ofIndian Penal Code and are hereby set at liberty. Both thecomplaint 81/P/09 and 82/P/09 stand dismissed.”

60. Writ petitions that were filed against this order have beendismissed by the impugned judgment. It seems to us that the baby andthe bath-water have both been thrown out together. While it is correct tosay that the order of conversion and issuing of process thereafter on aprivate complaint may not be correct, yet the two complaints as originallyfiled can still be pursued. Once the Magistrate’s order had been setaside, the learned Additional Sessions Judge ought to have relegated theparties to the position before the original complaints had been convertedinto private complaints. Since this has not been done, we find that ShriMishra is right in stating that even though allegedly serious offenceshave been made out under Sections 191 and 192 of the IPC, yet thecomplaints themselves have now been quashed. We, therefore, reinstatethe two complaints in their original form so that they may be proceededwith further, following the drill of Sections 195 and 340 of theCrPC.

61. The appeals filed are disposed of accordingly.

Ankit Gyan

Appeals disposed of.

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