Giridhar Malaviya, J.
1. This Full Bench has been constituted to consider the question of bar on jurisdiction of the Courts as it prescribed under Section 195(1)(b)(ii) of the Code of Criminal procedure. However, since the entire case has also been referred to the Full Bench on the ground that the revision is very old and the proceedings in the trial Court are held up, it would be proper to set out the facts of the case in the beginning.
2. One Smt. Sugia lodged a report against Ram Khelawan, Katwaru, Sita Ram and Chhote Lal on 4-6-1978 at police Station-Cantt., Varanasi alleging there in that on 23-2-1978 Ram Khelawan accused set up some other woman by asking her to impersonate Sugia and to get a fictitious sale deed executed in the name of Sugia. The report said that accused Katwaru and Sita Ram identified the impersonator as Sugia and accused Sita Ram had joined these persons and had conspired to get the said fictitious sale deed executed. After the First Information Report was lodged the case was investigated and charge sheet was filed under Sections 467, 468, 471 and 420 of the Indian Penal Code on 29-5-1979. After being summoned the accused appeared, their statements were recorded whereafter charges under Sections 467 read with Sections 109 and 419, Indian Penal Code were framed against them. The accused denied the charge. The prosecution examined P.W. 1 Smt. Sugia, P.W. 2 Sundar Singh, P.W. 3 Ram Raj, P.W. 4 Abdul Rahman and P.W. 5 Nand Kumar Sharma. When evidence of the prosecution was on the verge of being closed, on 9-12-1983, an application was moved on behalf of the accused persons pleadings that their prosecution was barred under Section 195(1)(b)(ii) of the Code of Criminal Procedure and the said Court had no jurisdiction to take cognizance of the offence. It was prayed that the accused be accordingly discharged.
3. On the said plea being taken the Chief Judicial Magistrate, by an order dated 2-5-1984, directed that since the alleged sale deed was not on the record, it was necessary to get the same . filed or summoned. There was no objection from the side of the accused. Accordingly on 2-5-1984 the said Court summoned the record of Case No. 67 of 1981 Ram Khelawan v. Sugia from the consolidation Courts. A perusal of the record of the consolidation Court revealed that the alleged sale deed purported to have been executed by Smt. Sugia on 23-2-1978 was not on the record. The Court took exception to this fact that when on 2-5-1984 order for summoning the record of consolidation Court was passed in presence of counsel for the accused it was not disclosed that the said sale deed was not on the record of consolidation Courts or that the sale deed had been lost. However after summoning of the record of consolidation Court it was asserted by counsel for the accused that from the list of papers purported to be filed on 10-5-1978 it would be clear that the said sale deed had been filed before the Assistant Consolidation Officer, Varanasi (East) on 10-5-1978. The record further revealed that on 18-5-1978 an application was made that the sale deed be returned and after the Court permitted the sale deed to be taken back, on 20-6-1978 the said sale-deed had been taken back.
4. After noting down the above mentioned facts the Chief Judicial Magistrate, by this order dated 30-8-1984, rejected the application of the accused persons pleading bar of Section 195(1)(b)(ii) of the Code of Criminal Procedure, by observing further that the entire story of the sale deed having been filed in the Court of the Assistant Consolidation Officer was doubtful and the objection itself having been raised almost towards the end of the prosecution evidence and after a gap of five years did not merit consideration of the objection as full effort of the accused appeared to be to delay the proceedings as far as possible. The present revision was filed in the High Court against the said order of the Chief Judicial Magistrate dated 30-8-1984.
5. This revision came up for hearing before a single Judge of this Court (Giridhar Malaviya, J.) on 26-2-1993 when arguments on behalf of the accused-applicants were heard. Since learned Counsel for the complainant had been pressing for disposal of the revision, but was not present before the single Judge, the Court while reserving the judgment directed Sri Aditya Narain to inform the Court if he had to make any submission. Consequently learned Counsel for the opposite party made a prayer that the opportunity of hearing be extended to him to elaborate the legal principles submitted by him in the written arguments. Copy of the said application along with the written arguments had been received by learned Counsel for the applicant. After going through the written arguments the single Judge found that the views expressed by a Division Bench of this Court in the case of Ram Pal Singh v. State of U.P. reported in 1982 Cri LJ 424 were not in consonance with the observation of the Supreme Court in the case of Raghunath v. State of U.P. reported in : AIR1973SC1100 , hence the papers should be laid before Hon. the Chief Justice to refer this case to a larger Bench. Hon'ble the Chief Justice had accordingly constituted a Division Bench to hear the matter. The matter was heard before the said Bench along with the question referred by the single Judge.
6. After hearing the counsel for the parties, the Division Bench by its order dated 8-5-1997, found that the view taken by the Division Bench of this Court in the case of Ram Pal Singh v. State of U.P. 1982 Cri LJ 424 appear to be contradictory to the observations of the Supreme Court in the case of Raghunath Singh : AIR1973SC1100 (supra). Relying on observation in the case of Bhagwan v. Ram Chandra reported in : [1965]3SCR218 the Division Bench deemed it proper to refer the matter to the Chief Justice to constitute a Full Bench to decide the controversy. The Chief Justice thereafter constituted a Full Bench to hear the matter along with the question to be decided by the Full Bench. That is how this matter is before us.
7. We have heard Sri Shashank Shekhar learned Counsel for the applicants Ram Khelawan and others, Sri Aditya Narain, learned Counsel for the complainant Smt. Sugia and Sri K. C. Saxena, the learned Additional Govt. Advocate. Sri Vinod Prasad and Sri S. K. Agrawal also sought our permission to address the Full Bench which was granted and we have heard them also on the question involved in this reference.
8. Before we take up the question to be decided it would be relevant to mention that the question itself has cropped up on account of the amendment incorporated in Section 195, Cr. P.C. in the new Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). Before the amendment in the Code the Supreme Court had occasion to consider when the bar of Section 195 of the Code was attracted in many cases. However the Division Bench of the Allahabad High Court in the case of Ram Pal Singh 1982 Cri LJ 424 (supra) considered the amendment in the Code and held that effect of omission of words contained in Section 195 (1) (c) of the old Code 'by a party to any proceeding in any Court' in Section 195(1)(b)(ii) of the Code was that the bar applied not only to complaints in respect of parties to proceedings in which objectionable document is produced but also to complaints against other persons alleged to have committed the offence in relation to the document, and the said bar applied to complaints in respect of documents produced in Court even if the offence was committed prior to the institution of the concerned proceedings.
9. The Bench, which referred the question to the larger Bench, was of the view that observation of the Division Bench of this Court in the case of Ram Pal Singh 1982 Cri LJ 424 (supra) was not in consonance with the judgment of the Supreme Court in the case of Raghunath v. State : AIR1973SC1100 (supra) although Raghunath's case had been decided in relation to bar of Section 195 (1) (c) of the old Code.
10. In the Code of Criminal Procedure of 1898 Section 195 was in the following terms :-
195. Prosecution for contempt of lawful authority of public servants- (1) No Court shall take cognizance-
(a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.
Prosecution for certain offences against public justice- (b) of any offence punishable under any of the following sections of the same Code, namely Sections 193, 194, 195, 196, 199, 200, 205 , 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in or in relation to, any proceeding in any Court, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate; or
Prosecution for certain offences-relating to documents given in evidence- (c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) to (5)....
After the amendment in the above Code in the year 1973 Section 195 reads as follows :-
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 is 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).
(2) to (4)....
11. A comparison of the two sections would make it clear that from the old Code only the words by part to any proceeding (underlined by us) has been altogether omitted and 'in any Court' which occurred in the old Section 195 before the words 'in respect of document produced or given in evidence' has been put at the end of the sentence. The only other change is in respect of the word 'such' which occurred in the old Code and which, due to obvious change in the Code, was made 'a' in the new Code with the result that instead of the sentence 'in respect of document produced or given in evidence in such proceeding' Under the old Code, sentence which occurred in the new Code reads 'in respect of document produced or given in evidence in a proceeding'. Thus there is no doubt that the only real change between old Section 195(1)(c) and the new provisions of Section 195(1)(b)(ii) is omission of the words 'by a party to any proceeding'. In Ram Pal Singh's case (1982 Cri LJ 424) (supra) the Division Bench of this Court noted the recommendation of the Law Commission, 41st. Report. The relevant portion of the Law Commission's 41st. Report is as follows :-
15.93 The purpose of the section is to bar private prosecution where the course of justice is sought to be prevented leaving it to itself to uphold its dignity and prestige. On principle there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses also. Witnesses need as much protection against vexatious prosecution as parties and the Court should have as much control over the acts of witnesses that enter as 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 which forms the basis of Section 195.
15.94 Another question which arises in connection is whether persons who abetted the offence but are not parties to the proceeding come within the purview of clause (c). It would seem that their case is covered by Sub-section (4) by which the provisions of Sub-section (1) are made applicable to abetment.
15.96 Taking an over-all view of the matter and keeping in mind the object of the section, we consider that the scope of clause (c) should not be restricted to offences committed by parties to the Court proceedings. The clause should apply when any of the specified offence is alleged to have been committed by any person in respect of a document produced or given, in evidence in any proceeding. It should also apply, as provided in Sub-section (4) to criminal conspiracies, abetments and attempts to commit any such offence in respect of any such document.
12. The Division Bench of the Allahabad High Court in Ram Pal Singh's case (1982 Cri LJ 424), was of the view that the effect of omission in the re-enacted provision of the words 'by a party to any proceeding in any Court' was that the' bar against taking cognizance of an offence described in Section 463 or Sections 471, 475 or Section 476, I.P.C. till then was confined only to complaints directed against parties to the proceeding had, after the amendment become applicable in respect of complaints against some other persons as well and, accordingly, not only persons who were parties to the proceedings in which the objectionable document had been filed or produced, but all other persons who are alleged to have committed such offence in relation to that document produced or given in evidence in any proceeding in a Court also became entitled to the protection irrespective of fact whether or not they were parties to the proceedings. The Division Bench thereafter also considered the question whether the immunity as indicated above was limited only in respect of offences committed after the judicial proceedings had commenced or whether it also extended to offences committed prior to initiation of such proceedings and came to the conclusion that plain reading to the section indicated that the bar was in respect of a document produced or given in evidence in any proceeding in Court as the section nowhere provided that its provisions could be attracted only if such offence had been committed after initiation of judicial proceedings in which the objectionable document had been produced or filed. The Division Bench also considered the case of Patel Lalji Bhai Somabhai v. State of Gujarat reported in : 1971CriLJ1437 and that of Raghunath v. State reported in : AIR1973SC1100 and held that the reasoning given by the Supreme Court while interpreting the provisions contained in Section 195 (1) (c) of the old Code could not be now availed of in interpreting the scope and ambit of the bar created by Section 195(1)(b)(ii) of the new Code against taking cognizance of an offence at the instance of a private complaint. These observations of the Division Bench of this Court in Ram Pal Singh's case (1982 Cri LJ 424) (supra) are being seriously challenged before this Full Bench.
13. The Supreme Court considered the question of bar under Section 195(1)(b)(ii) of the new Code in the case of Gopalkrishna Menon v. D. Raja Reddy reported in : [1983]3SCR836 . The judgment in the above case starts by observing as under :-
The short question arising in this appeal by special leave is whether in the absence of necessary complaint by the Civil Court where a money receipt alleged to have been forged was produced, prosecution for offences under Sections 467 and 471 read with Section 34 of the Indian Penal Code would be maintainable.
In that case the High Court of Andhra Pradesh had dismissed the application moved by the accused under Section 482, Cr. P.C. by holding that the bar under Section 195(1)(b) Code of Criminal Procedure is not attracted as the offences under Sections 474 and 471, I.P.C. were distinct inasmuch as Section 463, I.P.C. could not be construed to include Section 467,I.P.C. as well and, therefore, it was competent for the Magistrate to have taken cognizance of and try the complaint. The Supreme Court in the Gopal krishna Menon's case : [1983]3SCR836 (supra) observed that the offence which was made punishable under Section 467, I.P.C. was in respect of an offence described in Section 463, I.P.C. and once it was accepted that Section 463,1.P.C. defined forgery and Section 467, I.P.C. provided punishment for forgery of a particular category, the provision in Section 195(1)(b)(ii) of the Code would immediately be attracted and hence offence punishable under Section 467 of the Penal Code was an offence described under Section 463, I.P.C. and, therefore, in absence of a complaint by the Court the prosecution in respect of that offence would also not be maintainable. In that view of the matter the Supreme Court held that the view taken by the Andhra Pradesh High Court was wrong. Hon'ble Judges of the Supreme Court thereafter referred to the case of Patel Lalji Bhai Soma Bhai v. State of Gujarat : 1971CriLJ1437 and observed that not the conclusion but the ratio supported the view taken in Gopalkrishna Menon's case : [1983]3SCR836 (supra).
14. Sri Shashank Shekhar contends that in Gopal Krishna Menon's case : [1983]3SCR836 the receipt which was alleged to have been forged was admittedly filed along with the plaint; as such the alleged forgery had been committed before the commencement of the proceedings in the Court where receipt had been filed. It is contended that since in that case the Supreme Court held that in the absence of complaint by the Court prosecution would not be maintainable, hence there can be no manner of doubt that the bar under Section 195(1)(b) would be attracted to any document which had been forged even prior to the initiation of proceedings and filed in a Court at any point of time.
15. A Full Bench of the Punjab and Haryana High Court, in the case Harbans Singh v. State of Punjab reported in , considered the question of bar in view of the judgment of the Supreme Court in Gopalkrishna Menon's case : [1983]3SCR836 . In a well considered judgment of the Punjab & Haryana High Court the Full Bench, in paragraph 9, noted that the controversy about the scope of Section 195(1)(c) of the old Code was not of new origin and existed even in the old Code, Relying upon a Full Bench judgment of this Court in the case of Emperor v. Kushal Pal Singh reported in : AIR1931All443 it was observed that taking a thorough view the Allahabad High Court had interpreted Section 195 of the old Code and had observed that the bar applied only to those cases where the offences mentioned in that section were committed by a party as such to a proceeding in any Court, in respect of a document, which had been produced or given in evidence in such proceedings and committed by a party to any proceeding in Court's meant committed by a person who was already a party to the proceeding and not by any one and if an offence had already been committed by a person who did not become a party till 30 years after the commission of the offence it could not be said to have been committed 'by a party' within the meaning of clause (c) (i) of Section 195 of the old Code. The Full Bench of the Punjab & Haryana High Court also noted the views of the Supreme Court in the cases of Patel Lalji Bhai Soma Bhai v. State of Gujarat : 1971CriLJ1437 (supra) Mohan Lal v. State of Rajasthan : 1974CriLJ350 , Legal Remembrancer, Govt. of West Bengal v. Hari Das Mundra : 1976CriLJ1732 and observed in paragraph 12 as follows :-
Patel's case : 1971CriLJ1437 has firmly established the law in favour of a narrow view of the provisions of Section 195 (1) (c) of the old Code and there are reasons for it. Under Section 190 of the Code, (new as well as old) a citizen has a right guaranteed under the criminal statute to bring the the existence of facts amounting to an offence, under the law of the land, to the notice of the Criminal Court functioning under the Code, which have to take cognizance of that. Section 195 of the new Code imposes restrictions on that right of an individual; if the circumstances given under this section are found to exist. Section 190 of the Code is the rule and Section 195 is the exception. The exception has to be strictly construed and has to be operated in a narrow field. In Kushal Pal Singh's case : AIR1931All443 (supra) the Allahabad High Court examined the powers and the right of a Civil Court to file a complaint. The view expressed in that case was that a segment of cases is likely to be left out of the purview of Section 476 of the old Code. Similar view was expressed by the Gujarat High Court in Ali Bin Rajak's case, ILR (1967) Guj 1091 (supra) as ;-
Moreover, the narrower view, in our judgment, is more in accordance with the provisions of the Code as a whole and avoids some of the difficulties which arise and which have been mentioned in certain cases. For example, the narrower view would avoid the Civil, Revenue and Criminal Courts having to resort to two kinds of procedure, one in regard to those which fall within the purview of Section 476 and another in regard to those which fall outside the same. According to the narrower interpretation, the bar of clause (c) would apply only to those cases where the offences mentioned therein are committed in regard to documents produced or given in evidence in a proceeding. It would avoid also the difficulty mentioned by Broomfield J. of sanctions of several Courts having to be taken if a document happens to be produced in more than one Court. The operation of clause (c) according to the narrower construction, would be confined only to the commission of offences in respect of those documents which are produced or given in evidence. Such an interpretation would also be in accordance with the grammar of the aforesaid clause. The expression 'produced or given in evidence 'which qualifies 'documents' indicates that the document is one which is already produced or given in evidence. The term 'such' in the expression in 'such proceedings' also emphasizes the same thing. The aforesaid reading also would be more in consonance with proviso (b) to Sub-section (3). Under the circumstances, in our judgment, though we are conscious of the fact that the authorities of the Bombay and several High Courts, specially those dealing with offences connected with Section 463, take the wider view on the whole, we have come to the conclusion that the narrower view which was expressed but without any reason in Noor Mohammad Cassim's case (1902) 4 Bom LR 268 is the correct view.... Reasons given for the conclusion in Raja Kushal Pal Singh's case : AIR1931All443 and Ali Bin Rajak's case ILR (1967) Guj 1091 have been approved in Patel's case. Even the question of expediency may not be appropriately determined by a Court under Section 340 of the new Code in case the aggrieved party approaches the Court after delay. Section 340 of the new Code on the face of it seems to be quite exhaustive, as it prescribes for an appeal in the succeeding Section 341. But, in practice it may not be so; for the criminal offences like the ones referred to in Section 195(1)(b)(ii) of the new Code, the Court cannot have the assistance of the police agency for enquiry and investigation into the allegations of forgery which the Criminal Courts have under Sections 202 and 156 of the new Code. The Court under Section 340 of the new Code has to see if it is expedient in the interest of justice that an enquiry should be made into the offences referred to in clause (b) (ii) of Section 195(1) and which appear to have been committed 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 proceeding in that Court, it may make a complaint after preliminary enquiry. Forgery is a serious offences and its detection in some cases, trace forgery etc., may require technical methods for the detection of the offence, which may not be available to the Court under Section 340 in the way they are available to the police during investigation. It may be impracticable for the Court to hold an enquiry into an offence which was committed before the document was placed on its records. The leading of evidence for the satisfaction of the Court is quite a time-consuming and cumbersome process. In Patel's case : 1971CriLJ1437 , noticing Sections 476-A and 476-B of the old Code, which were predecessor provisions of Sections 340 and 341 of the new Code the narrow view was taken. It was observed that it was appropriate for the Court only to file complainants in those cases in which the offences were committed by a party to the proceedings, which have a reasonable close nexus with the proceedings in that Court. 'So that it can, without embarking upon a completely independent and fresh enquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party.' This also indicates the view that fresh enquiry independent of the case was not preferred in Patel's case (1971 Cri LJ 1437) (SC).
Thereafter in paragraph 14 of the judgment the Full Bench considered the effect of deletion of the words 'by a party to any proceeding in any Court' from the old Code to find whether deletion of the said words in the new Code affected the ratio of Patel's case : 1971CriLJ1437 (supra) and observed in paragraph 15 as follows :-
(vi) The restricted view is more in consonance with the scheme of Code of Criminal Procedure to provide harmonious interpretation and will not defeat or frustrate any other relevant provisions of the Code. With the aid of these conclusions, different provisions of the Code having connection with each other can be harmoniously worked.
It would also be relevant to mention here that in Harbans Singh's case (supra) the Full Bench had noted the facts of Gopalkrishna Menon's case : [1983]3SCR836 (supra) which was decided by the Supreme Court. The observations of the Full Bench in paragraph of their judgment can be usefully quoted as under:-
The words with emphasis extracted above from Gopalkrishna Menon's case : [1983]3SCR836 make it clear that the view of the Andhra Pradesh High Court that Section 463 of the Penal Code cannot be construed to include Section 467 of that Code was held to be wrong and was set aside. The Supreme Court in-Gopalkrishna Menon's case also assumed certain facts, to which Section 195(1)(b)(ii) of the new Code, in the view of their Lordships, was attracted for application, as the extracted portion from that judgment shows that the observations started with the use of the word 'if. The word 'if' is always expressive of a condition. In legal and ordinary phraseology, the word imports a condition. The Supreme Court, therefore, holding the view of the High Court on Section 463 of the Penal Code as wrong and assuming certain facts and conditions on the existence of which, if Section 195(1)(b)(ii) applied, drew the conclusion which it expressed. The question of the scope of Section 195(1)(b)(ii), after its amendment, was neither specifically raised, discussed, nor adjudicated by their Lordship in Gopalkrishna Menon's case : [1983]3SCR836 (supra). At the same time it has to be noted with interest that in this case the Supreme Court referred to : 1971CriLJ1437 (Patel Lal Ji Bhai Soma Bhai v. State of Gujarat) and their Lordships observed. 'Not the conclusion but the ratio support our view.' I am making a detailed reference to Patel's case in the ensuing paragraphs of this judgment to highlight the ratio of that case and the different aspects of Section 195 (1) (c) of the old Code, which were taken note of and adjudicated upon by the Supreme Court. The post-amendment scope of Section 195(1)(b)(ii) was not considered by the Supreme Court in Gopalkrishna Menon's case : [1983]3SCR836 , when, in Karnail Singh's case, 1983 Cri LJ 713 (Punj & Har) this was the matter directly in issue and decided in the light of the binding precedent by the Supreme Court in Patel's case. I do not find that Karnail Singh's case in any way is in conflict with with Gopalkrishna Menon's case.
Thereafter the Full Bench also considered the Division Bench judgment of Allahabad High Court in Ram Pal Singh's case (1982 Cri LJ 424) (supra) and in concluding portion of paragraph 16 it was stated that observations in paragraph 7 in Patel Lal Ji Bhai's case : 1971CriLJ1437 (supra) was not brought to the notice of the Division Bench of the Allahabad High Court which had approved Full Bench judgment of the Allahabad High Court in Kushal Pal Singh's case : AIR1931All443 and Ali Bin Razak's case (ILR (1967) Guj 1091) of the Gujarat High Court. Ultimately in paragraph 18 of the said judgment it was observed as follows :-
The net result of the discussion is that Karnail Singh's case 1983 Cri LJ 713, (Punj & Har) is correctly decided and depicts the correct position of the law. Section 195(1)(b)(ii) of the new Code is limited in its operation, only to the offences mentioned in this section if committed in regard to a document produced or given in evidence in such proceedings, while the document is in the custody of the Court. It has no application to a case in which such a document is fabricated prior to its production or given in evidence.
16. We have been taken though all the cases of the Supreme Court and the other High Court which have been referred in the judgments quoted above. We have also considered the detailed arguments advanced by all the learned Counsel who have appeared in this case and have heard their respective submissions. It may not be necessary to re-assess the points raised by respective counsel with reference to the case which have been cited by them separately before us but we confine this judgment only to such aspects of some; of these cases which in our view, were explicitly necessary to answer the question referred to us in a clear way. However before considering these cases it would also be relevant to consider the effect of omission of the words 'by a party to any proceeding' from Section 195, as that would, to a large; extent settle the; controversy raised before this Bench. In this respect after, considering the objects and reasons of the amendment as mentioned in the Law Commission's report, quoted above, we find ourselves to be in agreement with the view taken by Hon. Judges of the Punjab & Haryana High Court in the case of Harbansh Singh (supra) and hold that the amendment or deletion of the- words was to extend the scope and benefit of Section 195(1)(b)(ii) in the new Code to witnesses also and not merely to the party to proceedings as was mentioned in the old Code.
17. Once it is found that the amendment has only enlarged the application of protection riot only to the party to the proceedings but even to witnesses etc. the obeservations made by 'the Supreme Court in the case of Patel Lal Ji Bhai : 1971CriLJ1437 (supra) become very relevant.
18. It is also relevant to note that the Supreme Court before the amendment in the Code of Criminal Procedure while considering the provisions of Section 195(1)(c) in the case of Patel Lal Ji Bhai : 1971CriLJ1437 (supra) vide paragraph 2 of the said Judgment had observed:-
The question raised relates to the scope and effect of Section 195(1)(c), Cr. P.C. and its applicability to Cases where a forged document has been produced as evidence in a judicial proceeding by a party thereto and prosecution of that party is sought for offences under Sections 467 and 471,1.P.C. in respect of that document.
In paragraph 5 of the said judgment their Lordships considered as to what could be the relevance of (1) words 'commission of an offence in respect of a document produced or given in evidence in a proceeding in a Court' and, (2) 'the commission of such offence by a party to such proceeding.' Thereafter it was observed :-
The use of words' 'in respect of the first ingredient would seem to some extent to enlarge the scope of this clause. Judicial opinion, however, differs on the effect and meaning of the words to have been committed by party to any proceeding in any Court,' As Cl. (b) of S- 195 (1) does not speak of offence committed by a party to the proceeding, while considering decisions on that clause this distinction deserves to be borne in mind. Broadly speaking, two divergent views have been expressed in decided cases in this connection. According to one view, to attract the prohibition contained in Cl. (c) the offence should be alleged to have been committed by the party to the proceeding in his character as such party, which means after having become a party to the proceeding, whereas according to the other view the alleged offence may have been committed by the accused even prior to the proceeding provided that the document in question is produced or given in evidence in such proceeding. The language used seems to us to be capable of either meaning without straining it. We have, therefore, to see which of the two alternative constructions is to be preferred as being more in accord with the legislative intent, keeping in view the statutory scheme and the purpose and object of enacting the prohibition contained in Section 195(1)(c).
19. Thereafter their Lordships for construing the said clause considered it appropriate to read it along with See. 476, Cr. P.C. relating to procedure for cases mentioned in Section 195(1) (by & (c). Taking note of the fact that under Section 476-A, Cr. P.C. as it then stood a superior Court was empowered to complain when the subordinate Court had omitted to do so and that Section 576-B conferred right on the aggrieved party to 'appeal from and order refusing to make a complain under Section 476 or 476-A, Cr. P.C. After considering this aspect their Lordships, at the end of paragraph 6 of the said judgment, observed as follows :-
In Case of offences specified in Cl. (c) they are required to be committed by a party to a proceeding in that Court with respect to a document produced or given in evidence in that Court. The offence covered by Section 471, I.P.C. from its very .nature must be committed in the proceeding itself by a party thereto. With respect to such an offence also expression of opinion by the Court as to the expediency of prosecution would serve a useful purpose. It is only with respect to the offence described in Section 463, I.P.C. and the offence punishable under Section 475 or 476, I.P.C. that two views are possible and therefore the effect of reading Section 195(1)(c) and Section 476, Cr. P.C. together has to be examined for discovering the true legislative intendment in respect of these offences.
20. Thereafter in paragraph 7 of the judgment after observing that the underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seemed to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents, the apex Court observed as follows :-
It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the Courts and thereby preventing the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the Court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed Ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the Court for . persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190, Cr. P.C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the Court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that Court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceedings in the character as such party. It may be recalled that the superior Court is equally competent under Section 476A, Cr. P.C. to consider the question of expediency of prosecution and to complain and there is also a right of appeal conferred by Section 476-B on a person on whose application the Court has refused to make a complaint under Section 476 or Section 476-A or against whom such a complaint has been made. The appellate Court is empowered after hearing the parties to direct the withdrawal of the complaint or as the case may be, itself to make the complaint. All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c), Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that Court prior to his becoming such party. It is no doubt true that quite often-if not almost invariably-the documents are forged for being used or produced in evidence in Court before the proceedings are started. But that in our opinion cannot be the controlling factor, because to adopt that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence years later by some other party would also be subject to Section 476, Cr. P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by Section 190, Cr. P.C. without promoting the real purpose and object underlying these two sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint.
21. Thereafter their Lordships considered view of various High Courts in paragraphs 8 and 9 of the said judgment and after analysing them observed as follows in paras 10 & 11 :-
Broadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench in Kushal Pal Singh's case : AIR1931All443 . This in our opinion reflects the better view. The purpose and object of the legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in Section 195(1)(b) and (c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the Courts in which forged documents are produced or false evidence is led and the conclusions of the Criminal Courts dealing with the private complaint. It is for this reason, as suggested earlier, that the Legislature has entrusted the Court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest of a criminal trial of the guilty party.
11. In this case the offence under Section 471, I.P.C. is clearly covered by the prohibition contained in Section 195(1)(c) but the offence under Section 467, I.P.C. can in our view be tried in the absence of a complaint by the Court unless it is shown by the evidence that the documents in question were forged by a party to the earlier proceedings in his character as such party, in other words, after the suit had been instituted.
22. A perusal of these observations of the Supreme Court make it clear that the Supreme Court in Patel 's case : 1971CriLJ1437 (supra) did not approve that in respect of all documents forged for being used or produced in evidence in Court before the proceedings had started the prohibition of Section 195(1)(c) of the Code of Criminal Procedure, could be applied as that would have unreasonably restricted the right possessed by a person and recognised by Section 190 of the Code of Criminal Procedure promoting the real purpose and the object underlined in those sections. The other aspect which the Supreme Court decided was that for an offence under Section 467 of the Indian Penal Code a person could be tried in the said case in absence of a complaint by the Court unless it was shown by evidence that the documents in question were forged by a party to the earlier proceedings in his character as such party, in other words after the suit had been instituted.
23. This view of the Supreme Court in Patel Lalji Bhai's case : 1971CriLJ1437 (supra) was followed in the cases of Raghunath v. State of U. P. : AIR1973SC1100 , Mohan Lal v. State of Rajasthan : 1974CriLJ350 , Legal Remembrancer, Govt. of West Bengal v. Hari Das Mundra : 1976CriLJ1732 .
24. Full Bench of the Punjab & Haryana High Court in Harbans Singh's case (supra), after considering these views of the Supreme Court, made the following observations in paragraph 13 :-
In case of wider view, there is a scope for misuse of the provisions also. Suppose 'A' fabricates a document. After that he files a suit against 'B' representing that the document is to be used for some collateral purpose in that suit. 'B' challenges the document describing it as a forgery and fabrication. A later on withdraws the suit or permits it to be dismissed for default. Can it be said that 'B' has no remedy by way of prosecution for the forgery of the document against him, except for applying to the Civil Court under Section 340 of the new Code for making enquiry and then making a complaint under Section 195 of the new Code. Alternatively even if the case filed by 'A' was decided by the Civil Court on merits, but when the proceedings are going on, 'B' did not have material in his possession to prove that the document was forged or for some reason could not produce that in that Court, where the civil suit was proceeding, should it be taken that 'B' will have no remedy except approaching the Court in which the document was earlier produced for making a complaint and leading that evidence, which he later on discovered and has in his possession. This would mean an enquiry independent of the record of the case on a new and fresh material and such a procedure was not favoured in Patel's case : 1971CriLJ1437 . The forger may even prolong the proceedings in a Civil Court such instances can be multiplied. Thus the wider view of Section 195(1)(b)(iii) is likely to frustrate or even defeat the interest of justice.
25. We are in complete agreement with the observations of the Punjab & Haryana High Court in the case of Harbans Singh (supra) in this respect and have no hesitation to say that it is only in such cases when the Court before which the forged document is available and it is challenged to be a forged document then only that Court being in a position to enquire into the matter whether a forgery has been committed then it has to lodge a complaint as contemplated under Section 195 and in that event alone unless there has been a complaint from that Court the Criminal Court would not be competent to try a person for offence under Section 471 of the Indian Penal Code etc.
26. The question arises whether the view taken in Patel's case : 1971CriLJ1437 (supra) followed by the Supreme Court in the case of Raghunath v. State of U. P. : AIR1973SC1100 (supra) and Mohan All's case : 1974CriLJ350 (supra) as also the case of L.R., Govt. of West Bengal v. Hari Das Mundra : 1976CriLJ1732 (supra) have become irrelevant after the amendment in the provisions of Section 195 of the Code of Criminal Procedure on account of deletion of the words 'by a party to the proceeding'.
27. Once we find that the deletion of the words 'by a party to any proceeding in any Court' does not alter the situation, it automatically follows that, accepting the law as laid down by the Supreme Court in Patel Lalji Bhai's case : 1971CriLJ1437 (supra) and followed in subsequent cases, it is to be held that, prohibition contained in Section 195(1)(b) applies only to those cases in which the offences specified therein were committed in relation to the documents which have been used or produced in evidence before that Court itself. In other words there should be a close nexus in respect of the document to the proceedings in which it is produced.
28. It was contended by learned Counsel for the applicant that the view taken in Patel Lalji Bhai's case : 1971CriLJ1437 (supra) cannot be pressed into service after the amendment in the Code of Criminal procedure. For this purpose he relies upon the observations of the Supreme Court in the case of Surjit Singh v. Balbir Singh : 1996CriLJ2304 where in paragraph 7 of the judgment it was observed as follows :-
In Patel Lalji Bhai's case : 1971CriLJ1437 , the main controversy was as to when the accused had become a party to the proceedings. However, after the Code came into force in 1974 replacing the earlier Code of 1898 it was omitted and so it is no longer of any relevance.
This observation was only in respect of one of the questions decided by the Supreme Court in Patel Lalji Bhai Soma Bhai's case viz. as to when the accused had become a party to the proceedings. This observation however does not affect the question of bar under Section 195 of the Code of Criminal Procedure relating to the period for which the bar applies as has been decided in Patel's case. Moreover the Supreme Court itself in Surjit Singh's case (supra) has clearly held that bar of taking cognizance under Section 195(1)(b)(ii) applies only when the original document is before the Court. In paragraphs 11 and 12 of the said judgment the Supreme Court has held that the bar applies only' when the document is produced in Court. This will be clear from the following passage of the judgment in Surjit Singh's case (AIR 1996 SC 1592) (supra) :-
It would thus be clear that for taking cognizance of an offence, the document, the foundation of forgery, it produced before the Court or given in evidence, the bar of taking cognizance under Section 195(1)(b)(ii) gets attracted....
12... In this case since cognizance was already taken before filing of the document in the Civil Court and the original has not been filed before cognizance was taken, the High Court was right in directing that the Magistrate is at liberty to proceed with the trial of the criminal case.
(Underlined by us)
29. Learned Counsel for the applicant also relied on the judgment of the Supreme Court in the case of Gopalkrishna Menon : [1983]3SCR836 (supra). He however contended that the observations of the Full Bench of the Punjab & Haryana High Court in Harbans Singh's case (supra) in paragraph 18 that Section 195(1)(b)(ii) of the new Code is limited in its operation only to the offences mentioned in the section if committed in regard to 'a document produced or given in evidence in such proceedings while the document is in custody of the Court' may not be correct. We have considered this aspect carefully. With due regard to Hon. Judges deciding the case of Harbans Singh (supra) we would make it clear that if by the words 'while the document is in custody of the Court' it was meant that the bar would apply only when the forgery has been committed in regard to a document while it was in custody of the Court and not otherwise, then we find ourselves to be not in agreement with the said interpretation. However if the term 'while the document is in custody of the Court' is to be interpreted to mean that a document which has been forged and has close nexus or has proximity to the proceedings in the Court and the bar under Section 195(1)(b)(ii) of the Code of Criminal Procedure would apply in relation of such a document only when that document is in custody of the Court, then this interpretation meets our full approval.
30. We are conscious of the fact that taking advantage of the legal provision relating to bar of a criminal prosecution at the instance of an aggrieved party, some unscrupulous elements after forging document may file it in a proceeding before a Court claiming relief on its basis, and thereafter in connivance with either the process server or a postman may get a false endorsement of service of notice on the defendant shown against whom some relief may be sought. The defendant in such a situation being not really served with the notice may never come to know of the proceeding pending in the Court. The Suit may then be decreed ex parte and the judgment may become final. The unscrupulous plaintiff may then never take back the forged document from the Court's record. Ultimately much later the defendant may come to know about the forgery and then apply for action against the unscrupulous plaintiff for forgery. The plaintiff may then plead that proceedings against his are barred under Section 195(1)(b)(ii) of the Code of Criminal Procedure, as the Court which decided the case had not directed his prosecution. We have no doubt in our mind that in such a situation the plea of bar of Section 195(1)(b)(ii) would not be available to him. There are two clear reasons to support our view. Firstly it is settled proposition of law that 'fraud' once played on Courts vitiate entire proceedings. Hence, once it is alleged that such a decree was obtained by playing fraud, that decree would be a nullity. Secondly to attract the bar under Section 195(1)(b)(ii) it is elementary that the question of forgery had been pleaded by a party in relation to that document and the Court had applied its mind to that question. It is only when the Court has come to a definite conclusion that the document had not been forged that the.' protection of Section 195(1)(b)(ii) becomes available to the party against whom the forgery is alleged. That is the meaning and concept of providing safeguard to a party or witness from frivolous or vexatious prosecution. Hence' it is made clear that if the plea of forgery has not been considered by any Court the question of bar under Section 195(1)(b)(ii) of the Code of Criminal Procedure would not arise.
31. Accordingly our conclusion is that Section 195(1)(b)(ii) of the Code of Criminal Procedure; 1973 is limited in its operation only to the offences mentioned in this section if such offence is with regard tod a document produced or given in evidence in such proceedings and when that document is still in custody of the Court. It has no application to a case in which such a document is fabricated long before its production or its being tendered in evidence.
32. Since the whole case has also been referred to us for decision, coming to the merit of the case it has been fairly conceded by Sri Shashank Shekhar learned Counsel for the applicant that since in the instant case the alleged forged sale deed was not on the record of any Court, hence the question of bar under Section 195(1)(b)(ii) of the new Code does not apply.
33. Accordingly while answering the question referred to us as indicated above this 'revision is dismissed. The stay order dated 19-10-1984 is hereby-vacated.