Madan Lal Sharma Vs. Punjab and Haryana High Court Thr. Its Registrar - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....order1. in this application which has been filed in the year 1985 the petitioner is seeking to quash the complaint dated 19-11-1983 and the charges framed against him by the judicial magistrate ist class, chandigarh for the offences under sections. 193, 196, 465 and 471, ipc. 2. this petition has been placed before me in pursuance of the direction of the full bench of five judges. 3. i need not go into the factual aspects of the matter since they have been succinctly referred to in the order of the full bench dated july 15, 1998. the full bench considered the question as to whether by the language employed in section 195(1)(b)(ii) read with section 340 of the code of criminal procedure, the court is debarred from taking cognizance and then proceed against an offender alleged to have.....

Judgment:
ORDER

1. In this application which has been filed in the year 1985 the petitioner is seeking to quash the complaint dated 19-11-1983 and the charges framed against him by the Judicial Magistrate Ist Class, Chandigarh for the offences under Sections. 193, 196, 465 and 471, IPC.

2. This petition has been placed before me in pursuance of the direction of the Full Bench of five Judges.

3. I need not go into the factual aspects of the matter since they have been succinctly referred to in the order of the Full Bench dated July 15, 1998. The Full Bench considered the question as to whether by the language employed in Section 195(1)(b)(ii) read with Section 340 of the Code of Criminal Procedure, the Court is debarred from taking cognizance and then proceed against an offender alleged to have committed the offences described in Section 195(1)(b)(ii) of the Code. The question has been answered by the Full Bench as follows :-

'From the discussion made above, we hold that as mentioned above neither the plain language employed in Section 195(1)(b)(ii) nor the purpose for which the said Section was enacted by the Legislature, creates any bar for a Court to take cognizance and launch prosecution of a person who might have committed forgery of a document or of the offences as envisaged under Section 195(1)(b)(ii) of the Code. We further hold that while taking cognizance of the offences of the type mentioned in Section 195(1)(b)(ii) i.e. the documents that were forged in the precincts of the Court and not outside the precincts of the Court and then produced and holding an enquiry as envisaged under Section 340, the Court has to form an opinion that it is expedient in the interest of justice that an enquiry should be made. The forgery of a document has to be such that may affect the administration of justice. If the parameters contained in Section 340 are in existence, there will be no bar for the Court to take cognizance of the offences as mentioned in Section 195(1)(b)(ii) and launch prosecution against the accused. We further hold that there is no bar placed upon the Court even remotely to take cognizance of the offences that are spelled out in S 195(1)(b)(ii) of the Code if the document has been forged outside the precincts of the Court and then produced in the Court. It may be desirable in such cases to still see as to whether prosecuting an offender would be expedient for the administration of justice but it is not sine-qua-non for initiation of proceedings against an accused that all parameters mentioned in Section 340 must be strictly meted. We further hold that while holding an enquiry as envisaged under Section 340 of the Code, it is not necessary for the Court to observe in writing that it is of the opinion that it is expedient in the interest of justice that the enquiry should be made. Once the source of power to initiate the inquiry is in existence non-mention of the Section empowering the Court or recording in writing the reasons forming an opinion as such, shall not be essential.'

After holding as above, the Full Bench observed as follows :-

Mr. Sibal, the learned counsel for the petitioner endeavoured to press into service other points taken in the petition under Section. 482, Cr.P.C. for quashing the complaint and charges framed against the petitioner. We, however, do not wish to go into any other point as all other points taken by the petitioner in his petition can well be taken into consideration by the learned single Judge before whom this case would now come up for final decision. It will be open for the petitioner to raise all other points before the learned single Judge.'

4. That is how the matter has been placed before me.

5. The learned counsel for the petitioner raised only three points before me :

(1) Before filing a complaint before the Court under Section 340, Cr.P.C. the petitioner has not been given any opportunity of hearing. Therefore, there is a violation of the principles of natural justice and the filing of the complaint under Section 340, Cr.P.C. is liable to be quashed.

(2) There is a delay in filing the complaint.

(3) Since more than 16 years lapsed from the date of filing of the complaint, there is violation of the petitioner's fundamental right to have a speedy trial as envisaged by Art. 21 of the Constitution of India.

Point 1 :

6. It is useful to refer to Section 340 of the Code of Criminal Procedure.

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 that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary :-

(a) record of 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) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on 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.

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

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

(b) in any other case, by the Presiding Officer of the Court.

(4) In this section, 'Court has the same meaning as in Section 195.

7. A reading of Section 340, Cr.P.C. shows that the Court is empowered to make such preliminary inquiry as it thinks necessary. The very word used in Section 340, Cr.P.C. contemplates that it is always for the Court to hold a preliminary inquiry. The Section does not envisage hearing of the accused before filing a complaint. It is always open to the accused to raise all the defences that are open to him under Law before the Magistrate in whose Court the complaint has been filed. The principle of audi-alterampartem only means that no party should be condemned unheard. It does not postulate that before making complaint, a party should be heard. The petitioner has not been condemned of any act or omission. This Court prima-facie took the view that a forged document has been used for the purpose of showing that the appeal filed by the appellants in the first appeal in land acquisition matter was within limitation. Whether any forgery was committed or not; whether the petitioner is responsible for committing the forgery and whether the petitioner is guilty of any offence, are all matters to be gone into during the trial of the case. The first contention of the learned counsel for the petitioner is, therefore, devoid of any merit and the same is rejected.

8. The second contention raised by the learned counsel for the petitioner is that there is a delay in filing the complaint. The Regular First Appeals were filed in this Court in the year 1981. They were returned to be refiled within a week with certain objections and they were refiled on April 14, 1982, May 31, 1982 and August 27, 1982. These appeals were filed through the petitioner who is an Advocate of this Court. Thereafter the appeals were represented by another advocate namely Shri Ravinder Seth instead of petitioner, with an application under Section 5 of the Limitation Act for condonation of delay. When that application came up before Mr. Justice I. S. Tiwana, as His Lordships then was, he passed the following orders :-

'It is conceded by the learned Counsel that the dates in the copies of the judgment supplied by the office of the District Judge, Chandigarh have been tampered With by scoring of certain dates and overwriting others. This obviously has been done with a view to bring the appeals within the period of limitation. According to the learned counsel all this has been done by one Mr. D. S. Sandhu, Advocate, practising in the lower Court. The learned counsel further states that the appellants had asked Mr. Sandhu to apply for these copies and he not only got these copies from the office, but also purchased Court-fee for the filing of these appeals. Before the consideration of the question of condonation of the delay in these appeals, I deem it proper that an inquiry be held by the District Judge (vigilance), Haryana to find out the exact dates on which the applications for these copies had been made and the copies were prepared and supplied. In case the District Judge comes to the conclusion that there has been tempering with the dates as mentioned in the copies, then he would not hesitate to get a criminal case registered if one is prima-facie made out for punishing the culprit whosoever he is. He would send his report to this Court within one month from the receipt of this order. The copies filed in these appeals be sent to the District Judge in original.'

9. Thereafter an inquiry was conducted by the District Judge (Vigilance), Haryana who submitted a report on January 31, 1983. Subsequently in view of the order passed by Justice I. S. Tiwana, a complaint came to be lodged by the Punjab and Haryana High Court through its Registrar against the petitioner and others before the Court of Chief Judicial Magistrate, Chandigarh for the offences under Sections 193, 196, 465 and 471 read with Section 109, I.P.C.

10. In this view of the matter, there is no delay in filing the complaint. Further simply on the basis of the delay, this Court in its inherent jurisdiction will not quash the complaint. It is however open to the petitioner to show the trial Court that the delay in filing the complaint caused prejudice to him, but it is not a ground for quashing the complaint.

11. The last and 3rd. point raised by the learned counsel for the petitioner is that the prosecution was launched more than 16 years ago and some of the witnesses have expired and because of delay in the trial, the petitioner is entitled to have the criminal proceedings against him dropped. He relied upon Article 21 of the Constitution of India. This argument overlooks that even the victims of the crimes are entitled to the protection of Article 21 of the Constitution of India.

12. No-one can take advantage of the Court's delay. The petitioner filed this application under Section 482 of the Code of Criminal Procedure in the year 1985. I do not wish to refer to various stages of the matter. For one reason or the other, the matter is pending in this Court for nearly one and a half decades. Sometimes the matter was referred to a Larger Bench. Sometimes on certain occasions, there was delay in constituting the Bench and on certain occasions, though the Full Bench heard the matter, judgment could not be pronounced and in the mean time some of the Judges constituting the Full Bench either retired or expired unfortunately. No doubt that the matters of this nature cannot brook any delay.

13. I am confident that My Lord the Hon'ble the Chief Justice would take care of such a situation. The cardinal principle is that an act of Court should prejudice none. If the Court fails to dispose of the matter for nearly one and a half decades, the complainant cannot be made to suffer. It is no doubt true that in this case the complainant is the High Court itself, but the same principle will apply to the High Court. Since it is the duty of the High Court to maintain the high standards of the Administration of Justice, it should not allow any party to get any favourable order passed by filing a forged document. Though in fact the de facto complainant is the High Court, virtually the affected party is the body of the people of the State who have to pay the enhanced compensation, if any, if ultimately the delay in filing the appeal is condoned on the basis of the forged document filed in this Court.

14. The argument of the learned counsel for the petitioner is that a right for speedy disposal is a Fundamental Right as envisaged under Article 21 of the Constitution of India and the same cannot be taken away. The people of the State have also got a Fundamental Right that the person guilty of the offence should be punished. The offence alleged to have been committed by the petitioner is an offence against the society intended to dent the public exchequer. Even without involving himself directly, the accused may try to prolong the matter and delay the disposal of the matter and ultimately urge that his right is taken away and therefore the criminal proceedings against him should be dropped. I do not think Article 21 of the Constitution of India comes into play in such a situation. By saying so, it is not my intention to cast any aspersons that the petitioner is responsible for the delay and that the delay in disposal of the present petition squarely lies on the Registry of the High Court.

No other point has been urged before me.

With the above observations, the Criminal Misce. is dismissed.

15. Petition dismissed.