The Gujarat High Court has reiterated that provision of Section 195(1) CrPC will be attracted only if the document is not forged outside the Court before recording of Evidence and when the offence enumerated while the document is in 'custodia legis'.
The single-judge bench of Justice Nikhil S. Kariel that the bar under the above provision applies only when offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court.
The petitioner herein has challenged setting aside of an order issuing process against the Respondents No. 1 and 2 under Sections 181, 193, 196, 199, 200, 209 and 471 read with Section 114 of IPC.
The petitioner herein averred that the Respondents No. 1 and 2 had prepared a false affidavit. In responde, the Respondents No. 1 and 2 has contested the allegations under in a Revision Application on the ground of Section 195(1)(b)(ii) of CrPC contending that Court could not take cognizance of an offence of forgery or fraud. It was further submitted that the complaint was a private one and therefore the Magistratre ought not have taken cognizance. The Revision Petition succeeded, aggrieving the petitioner and resulting in present petition.
Learned Counsel for the petitioner submitted that the bar of Section 195(1)(b)(ii) would only be applicable, if the document produced or given in evidence is stated to be forged during Court proceedings. He further submitted that in the instant case, a perusal of the complaint preferred by the petitioner clearly reveals that the affidavit of forged pedigree chart had been prepared much earlier than filing of the Civil Suit and the same had been placed as evidence in the Regular Suit. He averred that, therefore, the forgery committed was not during the course of the proceedings, and hence, bar of Section 195(1)(b)(ii) of Cr.P.C. would not be applicable.
Reliance was placed on Iqbal Singh Marwah & ANR Vs. Meenakshi Marwah & ANR, 2005 Latest Caselaw 167 SC whererin the Supreme Court clearly drew distinction between forgery which is committed before the proceedings are initiated and such forged document is presented before the Court and forgery which is committed during the course of proceedings. He submitted that the Hon’ble Court interpreting Section 195(1)(b)(ii) of Cr.P.C., has clearly explained the scope of the said Section and has inter alia held that the bar of said Section would not operate, if the commission of the act of forgery, was before institution of the proceedings.
The Court accepted the contention and further analysed the landmark ruling to note:
"The bar of Section 195(1)(b)(ii) of Cr.P.C. 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’."
In the instant case, as discussed above, the document had been prepared even prior to filing of the Regular Suit and whereas the plaintiffs i.e. Respondents No.1 and 2 had relied upon the said document in support of the contentions raised by the plaintiffs in the suit concerned, it is not the case of the present petitioner, nor is it the case of the respondents No.1 and 2 that the alleged forgery was done when the document was in the custody of the Court. It is in face of these facts, the bar of Section 195(1)(b)(ii) of Cr.P.C. would not be applicable in the instant case.
Case Title: BHUPATBHAI PUJABHAI BHOI Versus HIRABEN WO SOMAJI BHOI & 2 other(s)
Case Details: R/SPECIAL CRIMINAL APPLICATION NO. 2522 of 2013
Coram: Justice Nikhil S. Kariel
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