VISHNU CHANDRU GAONKAR versus N.M. DESSAI on 6 March 2018

[2018] 3 S.C.R. 103

VISHNU CHANDRU GAONKAR

v.

N.M. DESSAI

(Criminal Appeal No.359 of 2018)

MARCH 06, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Code of Criminal Procedure, 1973: s. 195(1)(b)(ii) –Prosecution under, for offence alleged to have been committed inrespect of document produced or given in evidence in a proceedingin any court – On facts, application u/s. 195(1)(b)(ii) by appellantmaking allegations against respondent-counsel for the oppositeparty, that he committed offence in verifying and forging thumbimpression of dead appellant – Order of District and Sessions Judgedirecting for filing a complaint u/s. 195(1)(b)(ii) – Set aside by theHigh Court – On appeal, held: Where offences has already beencommitted earlier and later on the document is produced or givenin the evidence in Court, the same is neither covered under Clauses(a), (b)(i) or (b) (ii) – On facts, the High Court rightly held thatinstant case is not where any complaint could have been proceededu/s. 195(1)(b)(ii).

Dismissing the appeal, the Court

HELD: 1.1 Appeal No. 91 of 2004 was filed by severalappellants, out of which one of the appellants was SMV, who diedon 02.03.2005. The application for withdrawal of the appeal wasfiled on 18.07.2006. One of the respondents before the HighCourt, took it upon herself to say that the thumb impression,which was put as of ‘SMV’ was put by her, since her husband‘SMV’ also used to sign along with her, in good faith, she put herthumb impression. The respondent came with the case that hehaving been informed that talks of settlement amongst theGaonkars is going on and they are intending to withdraw theexecution application filed by them. He, as per instructions of hisclient, drafted and handed over the application for withdrawingthe Appeal No. 91 of 2004 to one SK to obtain the signatures ofthe remaining respondents. He further came with the case that

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Ahe was not aware of death of SMV or alleged forged thumbimpression of SMV on the application. The facts fairly indicatethat the application when it was presented in the Court in AppealNo. 91 of 2004 for withdrawal of the appeal, signatures/thumbimpressions of the appellants were already obtained on the saidapplication, which was handed over to the respondent in thisBappeal for filing in the Court. On the same date, i.e., 18.07.2006,the Court allowed the application permitting withdrawal of theappeal. A Criminal Misc. Application No. 95 of 2007 for initiatingaction under Section 195(1)(b)(ii) of Cr.P.C. was filed by theappellant after the said withdrawal of the appeal. The applicationCwas allowed by the District Judge where the District Judge haddirected for inquiry to be conducted in terms of Section195(1)(b)(ii) of Cr.P.C. [Paras 7-9] [109-A-B, D]

1.2 The submission raised by the appellant is rejected dueto the reason that before the Session Court as well as before theDHigh Court, the appellant has alleged an offence under Section195(1)(b)(ii). In the Application No. 95 of 2007 prayer was forcomplaint to be made as per the provisions contemplated underSection 195(1)(b)(ii) of Cr.P.C. Even the order of District Judge,which was the basis in favour of the appellant on 31.07.2008 hasEalso directed for inquiry and initiating complaint in terms of Section195(1)(b)(ii) of Cr.P.C. There being specific case of the appellantin his complaint as well as in order passed by the District Judgein his favour, it is not open for the appellant to turn round andclaim that allegations are covered under Section 195(1)(b)(i). TheConstitution Bench in Iqbval Singh Marwah elaborately noticingFthe statutory scheme under Section 195 has held that whereoffences has already been committed earlier and later on thedocument is produced or given in the evidence in Court, thesame is neither covered under Clauses (a), (b)(i) or (b) (ii).[Para 15] [112-B-E]G

1.3 The execution application, which was filed by the decreeholder was also withdrawn. The appeal, which was filed byjudgment debtor was withdrawn by judgment debtor, which in nomanner had impaired the interest of the appellant, who was legalheir of decree holder. It is also on the record that legal heirs of H

the decree holders have also withdrawn their executionapplication, which has attained finality. None of the appellants,who had filed Appeal No.91 of 2004 before the High Court hasinitiated any proceeding against the instant respondent who wastheir advocate. It is only the appellant, who was respondent inAppeal No.91 of 2004 has filed a complaint under Section 195.The High Court having taken into consideration entire facts andcircumstances have rightly come to the conclusion that presentis not a case where any complaint could have been proceededunder Section 195(1)(b)(ii) Cr. P.C. [Para 16] [113-F-H]

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Iqbal Singh Marwah & Anr. v.. Meenakshi Marwah &Anr. [2005] 2 SCR 708 : (2005) 4 SCC 370 –followed.

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Sachida Nand Singh & Anr. v.. State of Bihar & Anr.[1998] 1 SCR 492 : (1998) 2 SCC 493 ; Iqbal SinghMarwah & Anr. v. Meenakshi Marwah & Anr. [2005] 2SCR 708 : (2005) 4 SCC 370 ; Sachida Nand Singh &Anr. v.. State of Bihar & Anr., [1998] 1 SCR 492 : (1998)2 SCC 493 ; Surjit Singh & Ors. v.. Balbir Singh[1996] 3 SCR 70 : (1996) 3 SCC 533 – referred to.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 359 of 2018.

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From the Judgment and Orders dated 06.08.2009 and 06.10.2009of the High Court of Judicature, Bombay at Goa in WP No. 1380 of2009 and Crl. A. No. 22 of 2009.

Ms. Prachi Bajpai, Adv for the Appellant.

AThe Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. This appeal has been filedquestioning the judgment and order dated 06.10.2009 of the High Courtof Bombay at Goa in Criminal Appeal No. 22 of 2009 by which judgment,the criminal appeal filed by the respondent Shri Narayan M. Dessai hasBbeen allowed setting aside the order of District & Sessions Judge dated31.07.2008 directing for filing a complaint under Section 195(1)(b)(ii) of Cr.P.C.

2. The facts which are necessary to be noted for deciding thisappeal are:- C

A regular Civil Suit No. 4 of 1993 was filed by two plaintiffsnamely Laximan Rama Gaonkar and Janu Narayan Gaonkarimpleading two defendants namely Kusta Naga Gaonkar and ShriSuresh Kust Gaonkar. The appellant in this appeal is legal heir oforiginal plaintiff No. 2, Janu Narayan Gaonkar. The Suit No. 4 of1993 was decreed by judgment and decree dated 07.12.2001. Anapplication for execution of decree was filed by the legal heirs ofthe plaintiffs on 07.12.2003. Legal heirs of the original defendantsfiled a Civil Appeal No. 91 of 2004 questioning the judgment anddecree dated 07.12.2001. One of the appellants in Civil AppealNo. 91 of 2004 namely Shaba Manju Velip (one of the legal heirsof original defendants Kusta Naga Gaonkar) died on 02.03.2005.No application to bring his legal heirs on record was filed by theappellants. The application to withdraw execution case No. 1 of2003 filed for execution of the decree in Civil Suit No. 4 of 1993was filed by the plaintiff’s advocate on 20.06.2006. The applicationfor withdrawal of Civil Appeal No. 91 of 2004 was filed on18.07.2006, which was allowed on 18.07.2006 itself. TheExecution Case No. 01 of 2003 was also allowed to be withdrawnon 21.07.2006. On 29.11.2007, the appellant filed an applicationunder Section 195(1)(b)(ii) Cr.P.C. making allegations against therespondent, who was counsel for the appellants in Civil AppealNo. 91 of 2004 that he committed offence in verifying and forgingthumb impression of dead appellant namely Shaba Manju Velip.By order dated 31.07.2008, learned District & Sessions Judgefound that it is a fit case for inquiry under Section 195(1)(b)(ii)and directed for inquiry and registering a complaint under Section D

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195(1)(b)(ii). Respondent preferred an appeal before the HighCourt against the order of District & Sessions Judge dated31.07.2008. The High Court vide its impugned judgment allowedthe appeal and quashed the order of the District Judge dated31.07.2008 as well as the complaint filed pursuant thereto.Aggrieved against the judgment of the High Court, the appellanthas filed this appeal.

3. Learned counsel for the appellant submitted that the High Courtrelying on the Three Judge Bench judgment of this Court in SachidaNand Singh & Anr. Vs. State of Bihar & Anr., (1998) 2 SCC 493,which has been approved by the Constitution Bench of this Court inIqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., (2005)4 SCC 370, has allowed the appeal filed by the respondent whereas theabove judgments of this Court, wherein reference was made to Section195(1)(b)(ii) Cr.P.C., which were not applicable in the facts of the presentcase, since allegations made in the complaint filed by the appellant werereferable to Section 195(1)(b)(i). It is submitted that the District &Session Judge has rightly considered all facts and circumstances anddirected for filing of complaint against the respondents under Section195(1)(b). No one has appeared on behalf of the respondent in spite ofservice.

4. We have considered the submissions of the learned counsel forthe parties and perused the records.

5. It is useful to extract Section 195(1) of Cr.P.C., which is to thefollowing effect:- “195. Prosecution for contempt of lawful authority of publicservants, for offences against public justice and for offencesrelating to documents given in evidence. - (1) No Court shalltake cognizance- (a) (i) of any offence punishable under sections 172 to 188 (bothinclusive) of the Indian Penal Code (45 of 1860 ), or

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

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servantconcerned or of some other public servant to whom he isadministratively subordinate; A

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A(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) and228, when such offence is alleged to have been committed in,or in relation to, any proceeding in any Court, or B

(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 C

(iii) of any criminal conspiracy to commit, or attempt to commit,or the abetment of, any offence specified in sub-clause (i) orsub- clause (ii), [except on the complaint in writing of that Court, or by suchofficer of the Court as that Court may authorize in writing inDthis behalf, or of some other Court to which that Court issubordinate].

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6. From the facts which are on the record, there is no dispute thatEthe Appeal No. 91 of 2004 was filed by several appellants, out of whichone of the appellants was Shaba Manju Velip, who died on 02.03.2005.The application for withdrawal of the appeal was filed on 18.07.2006. Itis further to be noted that one Vimal Shaba Velip, who was one of therespondents before the High Court, took it upon herself to say that theFthumb impression, which was put as of Shaba Manju Velip was put byher, since her husband Shaba Manju Velip also used to sign along withher, in good faith, she put her thumb impression. The respondent N.M.Dessai came with the case that he having been informed that talks ofsettlement amongst the Gaonkars is going on and they are intending towithdraw the execution application filed by them. He, as per instructionsGof his client, drafted and handed over the application for withdrawingthe Appeal No. 91 of 2004 to one Suresh K. Gaonkar to obtain thesignatures of the remaining respondents. He further came with thecase that he was not aware of death of Shaba Manju Velip or allegedforged thumb impression of Shaba Manju Velip on the application.

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7. The facts fairly indicate that the application when it waspresented in the Court in Appeal No. 91 of 2004 for withdrawal of theappeal, signatures/thumb impressions of the appellants were alreadyobtained on the said application, which was handed over to the respondentin this appeal for filing in the Court. On the same date, i.e., 18.07.2006,the Court allowed the application permitting withdrawal of the appeal.

8. A Criminal Misc. Application No. 95 of 2007 for initiating actionunder Section 195(1)(b)(ii) of Cr.P.C. was filed by the appellant afterthe said withdrawal of the appeal. Copy of the Application No. 95 of2007 has been filed as Annexure P-4. It is useful to quote prayer in theapplication, which is to the following effect:- “The applicant therefore prays that in view of above an enquirymay be conducted and the written complaint be made as per theprovision contemplated under Section 195(1)(b)(ii) of CriminalProcedure Code in order to prosecute and take further actionagainst the respondents above as per the provision of law.”

9. The application was allowed by the District Judge vide orderdated 31.07.2008 where the District Judge had directed for inquiry to beconducted in terms of Section 195(1)(b)(ii) of Cr.P.C., it is useful toquote Paras 18 and 19 of the order of the District Judge, which is to thefollowing effect:- “18. Though the respondent No.9 has canvassed that he was totallyunconnected with any of such transaction, such a plea would notlie in his mouth when he was representing the said appellants andone of whom was Shaba, since deceased and instrumental inseeking the withdrawal of the appeal also at his instance as lateas 18.7.2006 despite Shaba being dead on that day. Therefore,on the basis of the material on record, it is apparent that an offenceof forgery under Section 463 I.P.C. has allegedly been committedto withdraw the appeal mis-representing the deceased as livingand the execution of the Sale Deeds in respect of the very sameproperty on the following day and a day thereafter. The applicationso filed in Court would be “a document” in the context of theEvidence Act and evidence.

19. I am therefore satisfied that this is a fit case where inquiry isrequired to be conducted in terms of Section 195(1)(b)(ii) of Cr.P.C.and initiate complaint against the respondents for appropriate actionas per law.”

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A10. The two judgments of this Court, which has already beennoticed by the High Court needs detailed reference.

11. A Three Judge Bench of this Court in Sachida Nand Singh& Anr. Vs. State of Bihar & Anr., (1998) 2 SCC 493 had occasion toconsider Section 195(1)(b)(ii) and Section 340(1) Cr.P.C. InterpretingBSection 195(1)(b)(ii), following was laid down in Paras 8, 11 and 23:- “8. That apart it is difficult to interpret Section 195(1)(b)(ii) ascontaining a bar against initiation of prosecution proceedings merelybecause the document concerned was produced in a court albeitthe act of forgery was perpetrated prior to its production in theCourt. Any such construction is likely to ensue unsavouryconsequences. For instance, if rank forgery of a valuable documentis detected and the forgerer is sure that he would imminently beembroiled in prosecution proceedings he can simply get thatdocument produced in any long-drawn litigation which was eitherinstituted by himself or somebody else who can be influenced byhim and thereby pre-empt the prosecution for the entire long periodof pendency of that litigation. It is a settled proposition that if thelanguage of a legislation is capable of more than one interpretation,the one which is capable of causing mischievous consequencesshould be averted. Quoting from Gill v. Donald Humberstone &Co. Ltd.5 Maxwell has stated in his treatise (Interpretation ofStatutes, 12th Edn., p. 105) that “if the language is capable ofmore than one interpretation we ought to discard the more naturalmeaning if it leads to unreasonable result and adopt thatinterpretation which leads to a reasonably practicable result”. Theclause which we are now considering contains enough indicationto show that the more natural meaning is that which leans in favourof a strict construction, and hence the aforesaid observation iseminently applicable here.

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11. The scope of the preliminary enquiry envisaged in Section340(1) of the Code is to ascertain whether any offence affectingadministration of justice has been committed in respect of adocument produced in court or given in evidence in a proceedingin that Court. In other words, the offence should have beencommitted during the time when the document was in custodialegis.

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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.”

12. It is also relevant to note that observations have been madeby this Court that forgery of a document if committed far outside theprecincts of the Court and long before its production in the Court, thesame cannot be treated as one affecting administration of justice. InPara 12, following has been held:- “12. It would be a strained thinking that any offence involvingforgery of a document if committed far outside the precincts ofthe Court and long before its production in the Court, could alsobe treated as one affecting administration of justice merely becausethat document later reached the court records.”

13. A contrary earlier view having expressed by another ThreeJudge Bench in Surjit Singh & Ors. Vs. Balbir Singh, (1996) 3 SCC533, being not in accord with the view expressed by this Court in SachidaNand Singh & Anr. Vs. State of Bihar & Anr. (supra), the same wasreferred to a Constitution Bench for resolving the conflict. TheConstitution Bench vide its judgment in Iqbal Singh Marwah & Anr.Vs. Meenakshi Marwah & Anr., (2005) 4 SCC 370 has resolvedconflict and approved three Judge Bench judgment in Sachida NandSingh & Anr. Vs. State of Bihar & Anr. (supra). In Para 33, followingwas laid down:-

“33. In view of the discussion made above, we are of the opinionthat Sachida Nand Singh has been correctly decided and the viewtaken therein is the correct view. Section 195(1)(b)(ii) CrPC wouldbe attracted only when the offences enumerated in the saidprovision have been committed with respect to a document afterit has been produced or given in evidence in a proceeding in anycourt i.e. during the time when the document was in custodialegis.”

14. Learned counsel for the appellant before us has pressed onlyone submission, i.e., the judgment of Constitution Bench in Iqbal SinghMarwah (supra) was a case, which interpreted Section 195(1)(b)(ii),to which there cannot be any dispute but present was a case of offence A

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Aunder Section 195(1)(b)(i). Hence the Constitution Bench judgment ofthis Court was not applicable and the High Court committed error inrelying on the Constitution Bench Judgment in Iqbal Singh Marwah(supra).

15. The submission which has been raised by learned counsel forBthe appellant before us has to be stated to be rejected due to the reasonthat before the Session Court as well as before the High Court, theappellant has alleged an offence under Section 195(1)(b)(ii). A copy ofthe Application No. 95 of 2007 has been annexed as Annexure P-4.The prayer made therein as extracted above clearly prays for complaintto be made as per the provisions contemplated under Section 195(1)(b)(ii)Cof Cr.P.C. Even the order of District Judge, which was the basis infavour of the appellant on 31.07.2008 has also directed for inquiry andinitiating complaint in terms of Section 195(1)(b)(ii) of Cr.P.C., whichhas also been extracted above for ready reference. There being specificcase of the appellant in his complaint as well as in order passed by theDDistrict Judge in his favour, it is not open for the appellant now to turnround and claim that allegations are covered under Section 195(1)(b)(ii).There is one more reason due to which the above submission cannot beaccepted. The Constitution Bench elaborately noticing the statutoryscheme under Section 195 has held that where offences has alreadybeen committed earlier and later on the document is produced or givenEin the evidence in Court, the same is neither covered under Clauses (a),(b)(i) or (b) (ii). In Para 10, Constitution Bench made followingobservations:- “10. The scheme of the statutory provision may now be examined.Broadly, Section 195 CrPC deals with three distinct categories ofFoffences which have been described in clauses (a), (b)(i) and(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 occurGin 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 Evidence andOffences Against Public Justice”. The offences mentioned in thisH

clause clearly relate to giving or fabricating false evidence ormaking a false declaration in any judicial proceeding or before acourt of justice or before a public servant who is bound or authorisedby law to receive such declaration, and also to some other offenceswhich have a direct correlation with the proceedings in a court ofjustice (Sections 205 and 211 IPC). This being the scheme of twoprovisions or clauses of Section 195 viz. that the offence shouldbe such which has direct bearing or affects the functioning ordischarge of lawful duties of a public servant or has a directcorrelation with the proceedings in a court of justice, the expression“when such offence is alleged to have been committed in respectof a document produced or given in evidence in a proceeding inany court” occurring in clause (b)(ii) should normally meancommission of such an offence after the document has actuallybeen produced or given in evidence in the court. The situation orcontingency where an offence as enumerated in this clause hasalready been committed earlier and later on the document isproduced or is given in evidence in court, does not appear to be intune with clauses (a)(i) and (b)(i) and consequently with thescheme of Section 195 CrPC. This indicates that clause (b)(ii)contemplates a situation where the offences enumerated thereinare committed with respect to a document subsequent to itsproduction or giving in evidence in a proceeding in any court.”

16. It is further to be noted that the execution application, whichwas filed by the decree holder was also withdrawn. It is further relevantto notice that the appeal, which was filed by judgment debtor waswithdrawn by judgment debtor, which in no manner had impaired theinterest of the appellant, who was legal heir of decree holder. It is alsoon the record that legal heirs of the decree holders have also withdrawntheir execution application, which has attained finality. None of theappellants, who had filed Appeal No.91 of 2004 before the High Courthas initiated any proceeding against the present respondent N.M. Dessai,who was their advocate. It is only the appellant, who was respondent inAppeal No.91 of 2004 has filed a complaint under Section 195. TheHigh Court having taken into consideration entire facts and circumstanceshave rightly come to the conclusion that present is not a case where anycomplaint could have been proceeded under Section 195(1)(b)(ii) Cr.P.C.

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114SUPREME COURT REPORTS

[2018] 3 S.C.R.

A17. We thus fully endorse the view of the High Court that presentis not a case where any complaint could have been proceeded withunder Section 195(1)(b)(ii). We thus do not find any merit in this appealand the same is dismissed.

BNidhi Jain

Appeal dismissed.

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