Judgment:
A.K. Sinha, J.
1. Heard learned Counsel for the petitioners and the Addl. P.P. The advocate on record representing Opp. Party No. 1 is not present but on his behalf Mr. Krishna Singh, Advocate appears and prays for adjournment which is refused.
2. The present revision application has been directed against the order dated 11th June, 1998 passed by 11th Addl. Sessions Judge, Chapra who set aside the Order dated 17-2-97 passed by Judicial Magistrate, Chapra in Case No. 26 of 1997 and directed for further inquiry in the case.
3. Some of the relevant facts may be stated as hereunder:
The complainant Opp. Party filed a complaint case against the petitioners alleging therein that the petitioners had filed a forged report of Sarpanch, Raj Ballabh Rai in a proceeding under Section 144 of the Cr. P.C. relating to case No. M. 385/95 in the Court of S.D.O., Sonepur and obtained a favourable order on the basis of the said report. The case was sent to the file of Shri A.K. Srivastava for inquiry who by his other dated 17-2-97 dismissed the compliant case on the ground that the complainant had no locus standi to file the complaint and only the S.D.O., Sonepur was competent to file the complaint in view of the provisions of Section 195(i)(b)(ii) of the Cr. P.C. Being aggrieved with the order passed by the Magistrate, the opposite party preferred a revision before the Sessions Judge and the revision was transferred to the file of 11th Addl. Sessions Judge, Chapra for disposal who passed the impugned order. The learned Addl. Sessions Judge was of the view .that the there was no bar to file the complaint because the forgery was committed somewhere else i.e. at village Ismailchak and the forged report was filed in the Court of S.D.O. in the said proceeding of 144, Cr. P.C. Hence, the forgery was not committed in the Court of S.D.O., Sonepur, so the bar under Section 195(1)(b)(ii) does not apply in the instant case. Accordingly, the order passed by the Magistrate was set aside by him and he gave direction to the Magistrate to make further inquiry.
4. The view taken by the Additional Sessions Judge is manifestly wrong and erroneous, inasmuch, as the forged report of Sarpanch was produced by the petitioners in a proceeding under Section 144 of the Cr. P.C. in the Court of S.D.O., Sonepur. As such, it was the S.D.O., Sonepur who was only competent to make an inquiry regarding the forged document used in the proceeding under Section 144 of the Cr. P.C. pending in his Court and after being satisfied that the said forgery has been committed by the petitioners, he could have filed the complaint petition. The provisions of Section 195(1) of the Cr. P.C. may usefully be quoted as under: No Court shall take cognizance-(b)(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, except on the complaint in writing of that Court, or some other Court to which that Court is subordinate. It is, therefore, manifest from the provision quoted above that the S.D.O. only was competent to file complaint against the petitioners since the alleged forgery is said to have been committed in relation to the proceeding under Section 144 of Cr. P.C. which was pending in his Court.
5. In the case of Gopalkrishna Menon arid another v. D. Raja Reddy and Anr. : [1983]3SCR836 , the apex Court held as under:
The offence which is made punishable under Section 467 is in respect of an offence described in Section 463. Once it is accepted that Section 463 defines forgery and Section 467, punishes forgery of a particular category, the provision in Section 195(1)(b)(ii) of Criminal P.C. would immediately be attracted and on the basis that the offence punishable under Section 467 is an offence described in Section 463. In the absence of a complaint by the Court, the prosecution would not be maintainable. Consequently, the prosecution of the persons who alleged to have produced the forged money receipt in Civil Court, for offence punishable under Sections 467 and 471 read with Section 34 on the basis of a private complaint and in absence of a complaint from the appropriate Civil Court where the alleged fraudulent money receipt has been produced, would not be sustainable because if the prosecution is allowed to continue serious prejudice would be caused to them and they would be called upon to face a trial which would not be sustained.
6. It would thus appear that the decision cited above is squarely applicable in the facts and circumstances of the instant case because the alleged forgery said to have been committed by the petitioner was in relation to a proceeding or in connection with a case pending before the S.D.O., Sonepur and the complainant-Opp. party had no locus standi to file complaint against the petitioners in view of the bar under Section 195(1)(b)(ii) of the Cr. P.C.
7. In the facts and circumstances of the case, the impugned order passed by 11th Additional Sessions Judge, Chapra appears to be wholly unjustified and illegal which cannot be sustained and is fit to be set aside. Accordingly, the impugned order passed by him is set aside and this revision application is allowed.