Guru Bachan Singh @ Bhangadi And 2 ... vs State Of U.P. And Another
2021 Latest Caselaw 3259 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
[RESERVED]
 

 
                                                                                   on  23.2.2021
 

 
Delivered on 10.3.2021
 
In Chamber 
 

 
Case :- CRIMINAL APPEAL No. - 1555 of 2018
 

 
Appellant :- Guru Bachan Singh @ Bhangadi And 2 Others
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Sarvesh Kumar Dubey
 
Counsel for Respondent :- G.A.,Raj Bahadur Verma
 

 

 
Hon'ble Subhash Chand,J.

1. The instant Criminal Appeal under section 341 of Cr.P.C., has been preferred on behalf of the appellants Guru Bachan Singh and two others against the State of U.P., and another against the judgment and order dated 19.2.2018 passed by the Special Judge, DAA/Additional Sessions Judge, Court No. 3 Farrukhabad in Criminal Misc. Case. No. 113/12/2010 (Nirmal Singh Yadav Vs. State of U.P., and others) whereby the application under section 340 of Cr.P.C., was allowed and also filed a complaint case against the appellants.

2. The brief facts giving rise to this Criminal Appeal are that the applicant Nirmal Singh Yadav moved application under section 340 of Cr.P.C., before the court of Special Judge, DAA/Additional Sessions Judge, Farrukhabad with these allegations that in Sessions Trial No. 14 of 1995 (State Vs. Guru Bachan Singh and others) arising out of Case crime No. 212 of 1995 under section 394 I.P.C, P.S. Fatehgarh, District Farrukhabad Guru Bachan Singh @ Bhangadi, Guru Deo Singh @ Dadua and Durvijay Singh @ Natia were in jail in that case and in compliance of the bail order on behalf of them the bail bonds were furnished. Opposite party no. 5 Ram Naresh [email protected] Mantri was the surety on behalf of the accused Durvijay Singh @ Natia and affixed his own photograph on the affidavit and other papers in the name of Ram Niwas @ Puttu Lal Yadav; likewise, opposite party no. 6 Vijay Singh @ Pappu was the surety of accused Guru Bachan Singh and affixed the photograph on the affidavit and other papers which were in the name of Jeet Singh, son of Bachchan Singh; likewise, opposite party no. 7 Munesh also affixed his photographs on the affidavit and other papers in the name of Jagdish Singh who was his father and Jagdish Singh had died much earlier. In regard to fake death certificate of Jagdish Singh a separate proceeding was pending in the competent court. Accordingly, the application under section 340 of Cr.P.C., was moved against opposite party nos. 2 to 7 because of committing forgery in the documents filed in the court.

3. On behalf of opposite party no. 2 Guru Bachan Singh and others objections were filed against this application on the ground that in Criminal Misc. Case No. 77/11/2008 (State Vs. Guru Bachan Singh and others) order has been passed on 26.5.2009 and on the same facts this application has been given. The proceeding in Criminal Misc. Case No. 77/11/2008 (State Vs. Guru Bachan Singh and others) is still pending. Accordingly, prayed to reject the application.

4. The trial court vide judgment and order dated 19.2.2018 allowed the application under section 340 of Cr.P.C., and also passed the order to file complaint against opposite party nos. 2 to 8 along with the copy of the order dated 19.2.2018.

5. Aggrieved by the impugned order dated 19.2.2018 this Criminal Appeal has been preferred on the ground that the impugned judgment and order is bad in the eyes of law. The same is based on the perverse finding. No complaint can be filed in view of provision of section 195 of Cr.P.C. Accordingly, prayed to allow this Criminal Appeal and set aside the impugned judgment and order passed by the court below.

6. I have heard the submissions made by learned counsel for the appellants and learned AGA on behalf of the State of U.P., and perused the materials brought on record.

7. Learned counsel for the appellants has submitted that admittedly all the three appellants were in jail in ST No. 14 of 1995 (State Vs. Guru Bachan Singh and others) arising out of Case crime No. 212 of 1995 under section 394 IPC, P.S. Fatehgarh, District Farrukhabad. The surety bonds were furnished before the court on their behalf by their counsel. If any alleged fraud or forgery was made, the same was committed on behalf of Ram Naresh Yadav, Vijay Singh, Munesh and Adarsh Kumar Hajela. Although, no alleged fraud or forgery was committed as per allegations in the application because only photographs were affixed mistakenly on the papers of sureties inter se and same was only mistake and none else. Moreover, the alleged fake death certificate was not produced in the court on the basis of the same no proceeding can be initiated under section 340 of Cr.P.C. The trial court has wrongly allowed the application and moved the complaint to the competent Magistrate against the provisions of Section 195 of Cr.P.C.

In support of his submissions learned counsel for the appellants has placed reliance upon Iqbal Singh Marwah Vs. Meenakshi Marwah 2005 Law Suit (SC) 486.

8. Per contra learned AGA opposed the contentions made by learned counsel for the appellants and submitted that the impugned judgment and order passed by the court below is proper and no illegality has been committed in the impugned order.

9. Admittedly, ST No. 14 of 1995 (State Vs. Guru Bachan Singh and others) arising out of case crime no. 212 of 1995 under section 394 of IPC, P.S. Fatehgarh, District Farrukhabad was pending before the Special Judge DAA/Additional Sessions Judge, Court No. 3, P.S. Fatehgarh, District Farrukhabad in which appellants Guru Bachan Singh @ Bhangadi, Gurdev Singh @ Dadua and Durvijay Singh @ Natia were in jail. In compliance of the bail order bail bonds and surety bonds were furnished on behalf of all the three accused persons. The trial court has recorded finding that in ST No. 14 of 1995 the bail bonds of the accused persons were sent for verification. Paper No. 14-B/12 is the bail bond of accused Guru Bachan Singh in which Ram Naresh and Jeet Singh both are sureties. As per verification report 44-B the photograph of Jeet Singh son of Bachchan Lal was not found verified. Like-wise, in the bail bonds of accused Durvijay Singh @ Natia Ram Niwas, son of Puttu Lal, Uma Shankar son of Ram Deen are the sureties. As per verification report 44-B the photograph of Ram Niwas, son of Puttu Lal was not found verified. In the bail bonds of accused Gurudeo Singh @ Dadua Ram Chandra, son of Raghunath and Jagdish Singh, son of Bachchan Lal were sureties of which no verification was on record. As per contention of applicant Nirmal Singh surety Jagdish had died much before adducing the surety bond on behalf of Jagdish. His son Munesh had affixed his own photograph on the surety papers of which complaint was made. Thereafter, he removed the photograph from that document and affixed the photograph of another person. On paper no. 14-B/8 bail bonds coloured photograph was affixed while in 1995 black and white photographs used to be affixed.

10. As such, it is evident that after filing the bail bonds before the court the alleged fraud and forgery was committed. The submission of learned counsel for the appellants that the accused nos. 2 to 4 were in jail and they were not aware of the alleged fraud and forgery is not tenable; because these bail bonds were furnished on behalf of the accused persons and on their instructions by their counsel. Prima-facie the role of the appellants can not be denied on the sole ground that they were in jail. Since the bail bonds were furnished on their behalf, subsequently all the three appellants-accused put their signatures on their personal bonds and released on bail on the basis of the surety bonds which were forged.

11. During investigation trial court had to see prima-facie the involvement of the accused persons in commission of the offence in regard to the fraudulent and forged documents which was adduced during trial. Accordingly, trial court had allowed application under section 340 of Cr.P.C and the complaints in writing was prepared by the trial court and the same was moved before the Chief Judicial Magistrate, Farrukhabad.

12. Here the provision of Section 195 of Cr.P.C are relevant to mention.

Section 195 of Cr.P.C. (i) and (ii) of Cr.P.C., reads as under:-

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).............................

(ii).............................

(iii).............................

(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) ..................

13. From the bare perusal of Section 195 of Cr.P.C., it is evident, if the documents which have been produced in judicial proceedings before the court and thereafter fraud or forgery is committed; on the application under Section 340 of Cr.P.C., after recording finding complaint in writing may be moved before the competent Magistrate to take cognizance thereon.

14. In the present case the fraud and forgery was not committed before the documents were produced in judicial proceedings pending before the trial court. Had the forgery or fraud was committed prior to the submissions of documents the proceedings under section 340 of Cr.P.C. could not have been initiated.

15. Learned counsel for the appellants has placed reliance on the case law Iqbal Singh Marwah (Supra) in which the Hon'ble Apex Court held if the offence as described in sections 463,471,475 and 476 of IPC is committed prior to production of the documents in the evidence in the court no complaint by the court would be necessary and a private complaint would be maintainable.

Hon'ble Apex Court in para 9 has held as under:-

"The scheme of the statutory provision may now be examined. Broadly, Section 195 Cr.P.C. deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X of the IPC and the heading of the Chapter is 'Of Contempts Of The Lawful Authority Of Public Servants'. These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI of IPC which is headed as 'Of False Evidence And Offences Against Public Justice'. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a Court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct co-relation with the proceedings in a Court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195, viz., that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a Court" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the Court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 Cr.P.C. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court."

Section 195 Cr.P.C., deals with three distinct categories of offence which have been described in clauses (a) (b) (i) and (ii) and c relate to; (1) contempt of lawful authority of public servants. (2) offences against public justice (3) offences relating to documents given in evidence.

......... "Clause (b) (ii) are normally mean commission of such offences if the document had actually been produced or given in evidence"

The Hon'ble Apex Court in para 10 held:-

....." Section 195 mandates a complaint in writing of the court for taking cognizance of the offences enumerated in clauses (b) (i) and (b) (ii) thereof. Sections 340 and 341 of Cr.P.C., which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith."

16. Section 340 of Cr.P.C., reads as under:-

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

(a) record a 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 a 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."

The Hon'ble Apex Court Iqbal Singh Marwah (Supra) in para 18 has held as under:-

"In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded."

In view of language used in Section 340 Cr.P.C., the court is not bound to make complaint regarding commission of the offence referred to Section 195 (i) (b) as the section is conditioned by the words Court is of opinion that it is expedient in the interest of justice.

........ "Expediency will normally be judged having regard to effect and impact of such commission of offence upon the administration of justice."

17. Moreover, the trial court after conducting inquiry had recorded its finding and was of the opinion to file the complaint against the appellants and other accused persons on the basis of prima-facie case made out against them. Whether the appellants had any role in commission of the crime while being in jail and were not aware in regard to commission of fraud and forgery on their behalf, by their sureties and their counsel as well so as to establish their non involvement in the crime, shall be decided by the trial court after taking cognizance on the complaint.

It is also pertinent to mention here that the persons who are committing forgery or fraud can not be set free on the above score or absolved from the charges of fraud that the accused persons may be or may not be instrumental in committing fraud because they are in jail. They may be instrumental, though they are in jail through their implied or express opinion/instructions.

18. At this stage the judgment and order passed by the court below does not not bear any infirmity and needs no interference.

Accordingly this criminal appeal deserves to be dismissed.

19. Accordingly, the criminal appeal is hereby dismissed. The impugned judgment and order dated 19.2.2018 passed by the Special Judge, DAA/Additional Sessions Judge, Court No. 3 Farrukhabad in Criminal Misc. Case. No. 113/12/2010 (Nirmal Singh Yadav Vs. State of U.P., and others) is hereby affirmed.

20. Let the copy of the judgment/order be certified to the court concerned for necessary information and follow up action.

Dated: 10.3.2021                                             (Subhash Chand, J.) 
 
SKS