Satendra Singh And Anr. vs The State Of U.P And Anr.
2015 Latest Caselaw 2129 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Court No.15 Reserved

CRIMINAL MISC. CASE NO.3245 OF 2012

(Under Section 482 of Code of Criminal Procedure)

Satendra Singh and another Vs. State of U.P. And another

AND

CRIMINAL MISC. CASE NO.3502 OF 2012

(Under Section 482 of Code of Criminal Procedure)

Virendra Kumar Singh and another Vs. State of U.P. and another

Counsel for Petitioners: Sri Arvind Pratap Singh

Counsel for Opposite Parties: Govt. Advocate and Sri Gaurav Mani Tripathi

Hon'ble Akhtar Husain Khan

Heard learned counsel for the petitioners as well as learned A.G.A. and learned counsel for opposite party no.2-Mahendra Pratap Singh.

Present petitions have been filed by petitioners, namely, Satendra Singh, Chandra Pal Singh, Virendra Kumar Singh and Ravindra Kumar Singh under Section 482 of Code of Criminal Procedure (in short 'Cr.P.C.) with prayer to quash the Charge-sheet No.63 of 2012 arising out of Crime No.C-434 of 2011, under Sections 419, 420, 467, 468, 471 of IPC, Police Station Kotwali Colonel Ganj, District Gonda. Further prayer has been made to quash proceedings of Case No.1681 of 2012 registered on the basis of said charge-sheet pending in the court of learned Chief Judicial Magistrate, Gonda along with summoning order dated 17.07.2012 passed on said charge-sheet submitted by police.

Learned counsel for the petitioners contended that allegations made in first information report (in short 'FIR') is false and concocted. Petitioners have been falsely implicated.

Learned counsel for the petitioners further contended that in view of provisions of Section 195 of Cr.P.C., cognizance cannot be taken by Magistrate on charge-sheet submitted by police because it is apparent from the allegations made in FIR that forgery has been committed in respect of documents produced in evidence in proceedings of court, therefore, the cognizance for alleged offences may be taken by Magistrate, only on written complaint made by concerned court. It is, therefore, apparent that the cognizance taken by Magistrate as well as summoning order passed by him is without jurisdiction and against law.

Learned counsel for the petitioners placed reliance upon following judicial pronouncements of Hon'ble Apex Court:

(i) Indra Mohan Goswami Vs. State of Uttaranchal;

[2008 (60) ACC 1 (SC)]

(ii) Surjit Singh and others Vs. Balbir Singh;

[(1996) 3 SCC 533]

Learned A.G.A. as well as learned counsel for the opposite party no.2 supported the summoning order passed by learned Magistrate and contended that the alleged forged documents were prepared out of court. Therefore, bar of Section 195 of Cr.P.C. is not applicable.

I have considered the submissions made by learned counsel for the parties.

In the case of Indra Mohan Goswami Vs. State of Uttaranchal (Supra), Hon'ble Apex Court has considered the scope of jurisdiction under Section 482 of Cr.P.C. and has placed reliance on its earlier judgment rendered in the case of Roy V.D. Vs. State of Kerala reported in (2000) 8 SCC 590, wherein, Hon'ble Apex Court has observed as under:

"18. It is well settled that the power under Section 482, Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482, CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice."

In the case of Surjit Singh and others Vs. Balbir Singh (Supra), Hon'ble Supreme Court has considered the bar of Section 195 of CrPC and has held as under:

"6. The object thereby is to protect persons from needless harassment by prosecution for private vendetta; to preserve purity of the judicial process and unsullied administration of justice; to prevent the parties of the temptation to pre-empt the proceedings pending in a court and to pressurise and desist parties from proceeding with the case. Equally when the act complained of relates to an offence, i.e., contempt of lawful authority of public servant, or against public justice or for offences relating to documents produced or given in evidence, public justice demands absolute bar of private prosecution and that power be given to the court to lay complaint under Section 340 of the Code as per the procedure prescribed therein. ...."

In the case of Surjit Singh and others Vs. Balbir Singh (Supra), Hon'ble Apex Court has further held as under:

"It would thus be clear that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the court or given in evidence, the bar of taking cognizance under Section 195 (1)(b)(ii) gets attracted and the criminal court is prohibited from taking cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under Section 340 of the Code by or on behalf of the court. ....."

In the case of Surjit Singh and others Vs. Balbir Singh (Supra),the cognizance had already been taken by Magistrate before filing of alleged forged document in civil court. Therefore, in view of this aspect of the case, Hon'ble Apex Court has held that bar of Section 195(1)(b)(ii) of CrPC is not attracted. Relevant part of judgment is extracted below:

"11. It is seen that in this case cognizance was taken by the criminal Court on 27.09.1983 and the original agreement appears to have been filed in the civil Court on 09.02.1984 - long after cognizance was taken by the Magistrate. It is settled law that once cognizance is taken, two courses are open to the Magistrate, namely, either to discharge the accused if the evidence does not disclose the offence or to acquit the accused after the full trial. Unless either of the two courses is taken and orders passed, the cognizance duly taken cannot be set at naught. 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."

FIR in present case itself shows that the alleged documents were produced in civil court and civil court passed order placing reliance thereon. Thereafter FIR has been lodged by complainant-opposite party no.2. Therefore, in view of principle laid down by Hon'ble Apex Court in the case of Surjit Singh and others Vs. Balbir Singh (Supra), it is apparent that Section 195(1)(b)(ii) of CrPC is applicable on the facts of present case and in view of provisions of Section 195(1)(b) of CrPC, cognizance may be taken by Magistrate concerned, only on written complaint of court concerned and not on police report submitted under Section 173 of CrPC.

FIR shows that offence under Section 419 of IPC is not made out and alleged offence under Section 420 of IPC is mainly based on alleged forged documents produced in court, offence under Section 420 of IPC cannot stand without forgery alleged.

In view of above, I am of the view that cognizance taken by Magistrate on police report is barred by provisions of Section 195 (1)(b)(ii) of CrPC and is an abuse of process of law.

For the reasons mentioned above, both petitions moved under Section 482 of CrPC are allowed and impugned summoning order dated 17.07.2012 passed by Magistrate on charge-sheet submitted by police is quashed along with entire proceedings of the case with liberty to opposite party no.2 to move application under Section 340 of CrPC before civil court concerned.

Order date:03.09.2015

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