Judgment:
I.A. Ansari, J.
1. When a person makes an application, having forged signatures thereon, to a revenue court seeking mutation of his name along with the name of the person, whose signature stands forged, in the record of rights, can a criminal court take cognizance of the offence of forgery, which such an applicant might have committed, without acomplaint, in writing, of the revenue court, where the application was made or of a court to which the revenue court is subordinate? This is the moot question, which the present Criminal Petition has raised. This question, in turn, gives rise to yet another question and the question is this: Whether the bar in taking cognizance, created by Section 195(1)(b)(ii) of the Code of Criminal Procedure (in short, 'the Code'), applies only when the offence has been committed with respect to a document after the document was already produced or given in evidence in a proceeding in any Court (i.e, during the time, when the document was in custodia legis), or whether the bar, so created by law, applies even to a document, which stood already forged, before the document was introduced as evidence in any proceeding in a Court?
2. Before coming to the merit of the revision, it is appropriate that the material facts giving rise to this Criminal Petition are taken note of. The material facts are as under:
(i) The opposite party No. 2 herein lodged a complaint, in writing, in the Court of the Chief Judicial Magistrate, Kamrup, Guwahati. This complaint gave rise to C.R. Case No. 2553c/2007, the complainant's case being, in brief, thus: The complainant's father, Late Golok Chandra Tamuli, had two brothers, namely, Bansidhar Tamuli and Kamal Chandra Tamuli. Banshidhar died leaving behind Lilabati Tamuli (since deceased) as his widow. Golok Chandra Tamuli died leaving the complainant as his only heir; whereas Kamal Chandra Tamuli died leaving behind four sons, namely, Jyotirmoy Tamuli and accused Nos. 1, 2 and 3, (i.e. the petitioners in the present criminal petition). Upon death of her husband, Lilabati, along with her brother-in-law, Kamal Chandra Tamuli, became the owner of her husband's land and houses situated at Santipur, Guwahati. Lilabati brought up the complainant, because the complainant was the only son of Lilabati's deceased brother, Golok Chandra Tamuli. In fact, the complainant remained with Lilabati since 1964 until her death and has been in occupation of the land and houses left by Lilabati. Lilabati also owned some land, which falls under Beltola mouza. Before her death, Lilabati had distributed her land, which falls, under Beltola mouza, amongst her seven nephews, including the complainant, by executing a partition deed, dated 22.03.94. The complainant has come to learn that the accused persons along with their elder brother, Jyotirmoy Tamuli, had instituted Mutation Case No. 447/2002-03 in the office of the Circle Officer, Guwahati Revenue Circle, seeking mutation of their names in place of Lilabati Tamuli and Kamal Chandra Tamuli in respect of the land, which falls under Beltola mouza as mentioned hereinbefore. The accused persons and their elder brother, Jyotirmoy, had, in fact, instituted, earlier also, Mutation Case No. 430/99-2000 in respect of the said land of Beltola mouza and the complainant, having come to know of the same, discovered that the accused persons had forged the signature of Jyotirmoy Tamuli inasmuch as the said Jyotirmoy Tamuli completely denied to have put his signature on any application seeking mutation of his name in the office of the Circle Officer, Guwahati. Jyotirmoy has even sworn an affidavit, dated 17.05.2003, to the effect that he had never put any signature in any application for mutation and that his signatures, if any, on the mutation petition, are forged. The accused have, thus, committed offences of forgery and also cheating and, hence, they are punishable under Sections 465, 468 and 471 read with Section 34 IPC.
(ii) By order, dated 02.09.2004, learned Sub-Divisional Judicial Magistrate (Sadar) No. 2, Guwahati, took cognizance of offences under Sections 465 and 471 read with Section 34 IPC and directed issuance of summons to the present accused-petitioners. On the prayer made by the complainant, the learned Court below also directed issuance of summons under Section 91 CrPC, to the Circle Officer, Guwahati, to produce the document(s), in question, i.e., the application seeking mutation, which, as indicated hereinabove, alleged to have forged signatures. Despite repeated directions issued in this regard, the Circle Officer, Guwahati, chose not to respond to the summons and/or produce the document(s) aforementioned. Faced with such a situation, the learned Court below passed an order, on 23.05.2006, directing the District Collector, Kamrup (Metro), to look into the matter of non-production of the document(s) as aforementioned; but even then, document(s) was not produced and the learned Court below passed an order fixing the case for recording evidence for charge. Aggrieved by the fact that the proceedings have continued despite the fact that such a proceeding, according to the accused-petitioners, is illegal inasmuch as the taking of cognizance of the offences, in question, was barred by Section 195 of the Code of Criminal Procedure (in short, 'the Code'), the petitioners have, now, made this application, under Section 482 CrPC, seeking quashing of the entire complaint proceeding.
3. I have heard Mr. M. Talukdar, learned Counsel, appearing on behalf of the accused-petitioners, and Mr. K. Munir, learned Additional Public Prosecutor, Assam, appearing on behalf of the State respondent No. 2.
4. Appearing on behalf of the accused-petitioners, Mr. Talukdar submits that Sections 195(1)(b)(ii) of the Code bars the Courts from taking cognizance of any offence, described in Section 463 IPC or punishable under Section 471 IPC, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court except on a complaint, in writing, of that Court or of some other Court to which that Court is subordinate. In the present case, points out Mr. Talukdar, since the application for mutation, bearing forged signature(s), was allegedly produced before a revenue officer and when the revenue officer, who falls within the meaning of the term 'revenue court', has not submitted any complaint alleging that an offence under Section 465 and/or Section 471 IPC has been committed by the present petitioners, learned Judicial Magistrate was clearly in error in taking cognizance of the, offences under Sections 465 and/or Section 471 IPC and in directing issuance of processes against the petitioners as accused.
5. Controverting the submissions, made on behalf of the petitioners, learned Additional Public Prosecutor, Assam, contends that the bar to the taking of cognizance, under Section 195(1)(b)(ii) of the Code, applies only when aperson is alleged to have forged a document after the same has been introduced into any proceeding in any Court. In the present case, the mutation application, in question, is, according to the complainant, was already forged before it was submitted to the revenue court. Hence, in a case of present nature, the bar, created by Section 195(1)(b)(ii), has, contends the learned Additional Public Prosecutor, no application and no complaint from the revenue court was necessary, in this regard, to enable the learned trial Court to take cognizance of the offences aforementioned.
6. In view of the fact that the entire controversy in the present criminal petition centres around the provisions of Section 195, it is necessary to take note of the relevant provisions of Section 195, which read as under
195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence-- (1) No court shall take cognizance-
(a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he administratively subordinate;
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in Sub-clause (i) or Sub-clause (ii),
except on the complaint in writing of that court, or some other court to which that court is subordinate.
(2) Where a complaint has been made by a public servant under Clause (a) of Sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In Clause (b) of Sub-section (1), the term 'Court' means a civil, revenue or criminal court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a court for the purpose of this section.
7. The relevant provisions of Section 195(1)(b)(i), which apply to the present case, read thus:
(1) No court shall take cognizance--
(a)(i) *** *** ***
(ii) *** *** ***
(iii) *** *** ***
(b)(i) *** *** ***
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or
(iii) *** *** ***
except on the complaint in writing of that court, or some other court to which that court is subordinate.
8. In Surjit Singh v. Balbir Singh reported in : 1996CriLJ2304 , the Apex Court had held to the effect that once a document is produced or given in evidence in a Court, Section 195(1)(b)(ii) bars courts from taking cognizance on the basis of a private complaint of forgery having been committed in respect of such a document. In other words, according to Surjit Singh's case (supra), irrespective of the fact as to whether a forgery in respect of a document is committed before or after the document is introduced in evidence, the bar, created by Section 195(1)(b)(ii), gets attracted. However, in a subsequent case, namely, Sachida Nand Singh v. State of Bihar reported in (1998) 2 SCC 493, the Apex Court took the view that the bar, contained in Section 195(1)(b)(ii), would not apply, when forgery in respect of a document was committed before the document had been produced in the Court or introduced in evidence. The relevant observations, made in Sachida Nand Singh (supra), read as under:
6. In Sachida Nand Singh after analysis of the relevant provisions and noticing a number of earlier decisions (but not Surjit Singh), the Court recorded its conclusions in paras 11, 12 and 23, which are being reproduced below:
11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that court. In other words, the offence should have been committed during the time when the document was in custodia legis.
12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the court and long before its production in the court, could also be treated as one affecting administration of justice merely because that document later reached the court records.
*** *** ***
23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court.
9. The controversy, thus, raised is as to whether the bar, under Section 195(1)(b)(ii), applies to the cases, where forgery of a document is committed before the same is produced in the Court or Section 195(1)(b)(ii) is attracted only when such forgery is committed after the document has already been produced in the Court. This controversy has been authoritatively resolved by a Constitution Bench in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. reported in : 2005CriLJ2161 , wherein, concurring with the views, expressed in Sachida Nand Singh (supra), the Constitution Bench held that the bar, under Section 195(1)(b)(ii), would be attracted only when the offences enumerated therein have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court, i.e., when the document was in custodia legis. The relevant observations made, in this regard, read as under:
33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been currently decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.
10. In the light of the authorities pronoucement in Iqbal Singh Marwah (supra), there can be escape from the conclusion that when a document is forged and then produced in a Court, the complaint, as regards the offence of forgery, can be lodged by anyone and no formal complaint by the Court, where the forged document is filed or introduced, is necessary. A complaint by a Court is necessary only when forgery in respect of a document is committed after the document has already produced in the Court or introduced in evidence.
11. Section 190 of the Code empowers a Magistrate to take cognizance of any offence (a) upon receiving a complaint of facts, which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
12. Section 195 is one of the exceptions to the general provisions of Section 190 inasmuch as Section 195 creates an embargo upon the Magistrate's power to take cognizance of certain specified offences. The procedure for filing of a complaint by a Court, contemplated by Section 195(1)(b)(ii), is given in Section 340 Cr.P.C. This Section reads:
340. Procedure in cases mentioned in Section 195--
(1) When, upon an application made to it in this behalf or otherwise, any court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary--
(a) Record a finding to that effect;
(b) Make a complaint thereof in writing;
(c) Send it to a Magistrate of the First Class having jurisdiction;
(d) Take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) Bring over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a court by Sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of Sub-section (4) of Section 195.
13. If the provisions of Section 340 of the Code are carefully analyzed, it becomes clear that the Court is not bound to make a complaint as regards commission of an offence referred to in Section 195(1)(b)(ii), for, the Court has to be of the view that it is expedient in the interest of justice to make the complaint. The Constitution Bench, in Iqbal Singh Marwah (supra), has, therefore, held that the language of Section 340 shows that a Magistrate will lodge a complaint only if the interest of justice requires and not in every case. Before filing the complaint, observes the Apex Court in Iqbal Singh Marwah (supra), the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b)(ii) and that this expediency will, normally, be judged by the Court by weighing not the magnitude of the injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, which the commission of offence may have upon administration of justice.
14. In the backdrop of the position of law discussed above, when I turn to the facts of the present case, what becomes glaringly noticeable to the eyes is that in the present case, the allegation levelled against the accused-petitioners is to the effect that they have forged signatures of Jyotirmoy Tamuli on the application made to the Circle Officer, Guwahati, seeking mutation. Even if, for a moment, it is assumed that the Circle Officer, Guwahati, is a revenue court, the fact remains that the allegations, made by the complainant-opposite party No. 2, relate to the alleged commission of the offence of forgery in respect of an application, (i.e., a document) before the same was produced in the revenue court. Unless a forgery is committed in respect of a document, which already stands produced in a court or introduced into evidence, the provisions of Section 195 would not be attracted.
15. Because of what have been discussed and pointed out above, I do not find that the impugned order, directing issuance of process against the accused persons, suffers from any infirmity, legal or factual. This revision, therefore, fails, the same is not admitted and shall accordingly stand dismissed.
16. Before parting with this criminal petition, it is of utmost importance to note that no reason has been assigned by the Circle Officer, Guwahati, or the District Collector, Kamrup (Metro), for not producing the document(s), which had been summoned to be produced. In view of the fact that the non-production of the document(s), in question, may cause serious prejudice to the complainant and such non-production is also in defiance of the lawful directions given to the Circle Officer, Guwahati, and District Collector, Kamrup (Metro), such actions/omissions, on the part of the said two executive officers, are contemptuous in nature and may expose them to appropriate proceedings under the Contempt of Courts Act.
17. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the District Collector, Kamrup (Metro), shall ensure that the document(s), which have been called for by the learned Court below as mentioned above, are produced in the Court on or before the next date.
18. With the above observations and directions, this Criminal petition shall stand disposed of. Send forthwith a copy of this judgment and order to the District Collector, Kamrup (Metro), Guwahati.