Shri C.P. Kotwal vs Shri Ali Ashad, Instrument ...
2003 Latest Caselaw 71 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioner is hereby praying for quashing the Criminal Complaint bearing No.131/Misc./97 pending on the file of Metropolitan Magistrate, 22nd Court, Andheri, Bombay, as well as the order of the said Court directing investigation to be made by Sakinaka Police Station officer in view of provisions of Section 156(3) of Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience).

2. Few facts need to be stated for unfolding the controversy in question. Respondent No.1 Ali Ashad had purchased a flat bearing No. D/702 in Lake Castle, Hiranandani Garden, Pawai, Mumbai constructed by Apex Construction in Hirandani Complex which was allotted to respondent No.1 on 14/4/1990 for sum of Rs.6,32,500/- to be paid in installments. The said purchase price has been paid by respondent No.1. Respondent No.1, according to the contention of the petitioner, had purchased a flat from C.I.D.C.O. at C.B.D. in the year 1983 but was unable to pay the loan which was to be repaid in that context. The same was repaid by son-in-law of the petitioner namely S.P. Agarwal in the year 1989. According to the contention of the petitioner, in the year 1990-90 respondent No.1 borrowed some money from petitioners family. He was in financial difficulties as contended by the petitioner and therefore attempted to sell the flat in the year 1992. He was unable to find a suitable purchaser and therefore approached the petitioner to purchase the said flat for Rs.6,80,000/- against the adjustment of their mutual accounts. As per the say of petitioner, respondent No.1 thereafter gave a letter of sale and executed a power of attorney in favour of petitioners son-in-law, Shri S.P. Agarwal.

3. On 31st of December, 1992 the respondent No.1 had come to the petitioner and told him that some formalities are to be completed and therefore, he wanted to have possession of the said flat. The legal formalities of transfer could not be completed on account of communal riots in the year 1993. Therefore, he handed over the possession of the said flat to petitioner as contended by him in the year 1993 and since that time the petitioner and his family members are residing in the said flat as owners.

4. There was boom in prices of real estate and out of geed for money, respondent No.1 started claiming ownership of the said flat. As contended by the petitioner, respondent No.1 started conveying threats from Dubai to the petitioner and his family members and started thinking of evicting the petitioner and his family members from the said flat forcibly. Petitioner had made complaints of said activities to police in the relevant period, more particularly, in the month of January 1994.

5. In the month of January 1994 respondent No.1 made a complaint to police alleging that petitioner and his family members broke the lock of the said flat and took illegal possession of it. Police did not proceed in view of that complaint treating it as a Civil dispute. Jt.Commissioner of Police issued a letter to that effect to Council General of India at U.A.E.

6. On 19/7/1995 around 8 p. m.. Mrs. Sajida Ali came to the disputed flat and requested the petitioner to excuse them for all such activities and requested them to allow her to stay with them for a night. The petitioner did not agree to her request and refused her to use the premises. Thereafter said Sajida Ali went to Sakinaka Police station and returned back with Police constable. A complaint was lodged by son-in-law of petitioner namely Shri S.P. Agarwal but that was treated as no cognizable complaint. Thus, the matter went to City Civil Court when respondent No.1 filed Civil Suit bearing No.4781 of 1995. A prayer was made for mandatory injunction directing the petitioner to vacate the said flat but it was rejected.

7. Along with the plaint some document were filed by complainant. Respondent No.1 filed a complaint in the Court alleging that petitioner had filed some forged documents in Court. The presiding officer of that Court directed officers of concerned police station to make investigation in respect of said complaint and file the report.

8. Shri Mohite appeared for the petitioner, Respondent No.1 is absent, none present for him though served. Shri Saste, A.P.P. appeared for respondent Nos. 2 to 4.

9. Shri Mohite, Counsel appearing for the petitioner, submitted that if the allegations are that the petitioner produced forged documents in the court, the complaint could have been from the Court and not an individual. Therefore, in view of the provisions of Section 195 of the Code, the prosecution is not tenable. Shri Saste, tried his best to justify the side of the prosecution on this point.

10. When the documents which have been tendered in the Court in a proceeding are alleged to have been forged, then no Court shall take cognizance of the offence or offences alleged except on the complaint in writing of the Judge or a Magistrate in whose Court such document or documents have been produced, presented or tendered in office of the presiding Officer of the Court whom said Judge or Magistrate is administratively subordinate. When such documents are annexed to the plaint, complaint, petition or application presented in a Court and the presiding officer of such Court has applied his judicial mind, those documents come under the purview of provisions of Section 195(1)(a), (b)(ii) of the Code. Those documents would come under the purview of Section 195(1)(a)(b)(ii) as soon as the statement of the complainant has been recorded, complaint, petition or application has been verified, process, summons, warrant or notice has been directed to be issued because, since Court decided to apply its mind by doing the act of recording the statement of the complainant and taking cognizance of the verification of the complaint petition or application, such complaint, plaint, petition, application and all the documents annexed thereto come under the purview of provisions of Section 195(1)(a)(b)(ii). In context with those documents if at all any complaint is to be filed in the Court of criminal jurisdiction, that has to be done by the presiding officer of that Court or by that Court to whom, such Judge or Magistrate happens to be administratively subordinate. Therefore, this Court upholds the submissions advanced on behalf of the petitioner. Same would be criteria applicable to the offence complained in context with provisions of Sections 172 to 188 as contemplated by Section 195(1)(a(i).

11. Shri Mohite further submitted that the complaint is vague and does not make out any offence alleged to have been committed by the petitioner specifically excluding offences which are punishable under the provisions of Sections 193 to 196. Shri Saste attempted his best to justify the cause of prosecution on this aspect also. Shri Mohite further submitted that the learned Magistrate after taking cognizance of the said complaint gave direction to the officers of concerned police station to do the investigation of the complaint in respect of the offence alleged to have been committed by the petitioner. He pointed out that the documents in context with which the allegation of forgery and the allegations revolving around sections 193 to 196 are made, are not pertaining to any documents filed in the Court of the learned Magistrate, who gave directions to the concerned police officer to make the investigation. in fact those documents have been filed in Bombay City Civil Court where the suit is pending in respect of controversy, in context with said flat. Shri Saste submitted that if at all any public servant is to make the complaint in respect of those documents, the said public servant would be concerned Civil Judge and none else. The language of Section 195 makes it very clear that no Court shall take cognizance of any offence indicated by provisions of sub-section (1)(a)(b) of section 195 of the Code, unless the complaint has been made by such public servant who has been concerned with commission of offence. It means that whenever the allegations are made in respect of the documents which have been filed in Civil Court, the presiding officer of that Civil Court would be having right to make a complaint to the Criminal Court of competent jurisdiction or presiding officer of a Court to whom said presiding officer is administratively subordinate. In the present matter, the complaint should have been made by the presiding officer of that Civil Court, where those documents have been filed by the complainant, and none else. Therefore, the learned Magistrate in the present case has committed error in considering the said complaint made by the respondent No.1 and gave a direction to the police officer of a concerned police station to make the investigation in view of provisions of Section 156(3) of the Code. In fact the learned Magistrate was forbidden to take cognizance in view of provisions of section 195(1)(a) and (b)(ii).

12. Every criminal prosecution, every list and more specifically criminal prosecution impliedly indicates an ordeal for such indicted person of undergoing the courts procedure which not only implies mental agony, mental physical sufferance and expenditure of considerable money but humiliation also. As soon as he gets summons from the police department, courts bailiff or process server his mental peace gets disturbed, he is required to attend to such summons of police station or Court. Before doing that or after doing that, he has to get assistance of a legal practitioner. He has to withdraw himself from his ordinary course of occupation which results in mental disturbance and financial loss to him. Every citizen of free democratic India is entitled to be protected from any act which is not authorised by law or which cannot be stated to be a legal action. He cannot be asked to attend the police station for the purpose of investigation, which includes interrogation and resultant spending of time till his turn comes. That waiting period has also to be counted which destroys him mentally, affects him physically and puts him into loss monetarily. Therefore, all actions which are not legal in parlance of law have to be quashed for the purpose of restoring the fundamental rights of a citizen and continuous course of law and administration of justice.

13. The learned Magistrate has committed the error of law in giving directions to the officers of concerned Police station to do the investigation in view of provisions of Sections 156(3) of the Code, without jurisdiction and contrary to the provisions of section 195 of the Code. As he did not take the notice of these provisions and the facts disclosed to him vide the complaint which was made by the respondent No.1. Had that adverted his due notice to the matter in question, he would not have landed in error of giving directions to the police officer of the concerned police station to make the necessary investigation. The said error which happens to be against the provisions of law, will have to be quashed by exercising inherent powers by this Court. Thus, this Petition stands allowed by issuing a writ of certiorari in favour of the petitioner exercising inherent powers of this Court. This Court quashes the said order directing the investigation to be done by the officer of Sakinaka Police station in respect of the complaint bearing No. 131/Misc./1997. The said proceeding stands quashed, the said investigation also stands quashed. The petitioner need not attend the said police station for this cause. No order as to the costs.

The parties are directed to act upon the copy of this order duly authenticated by the Court Stenographer/Sheristedar of this Court.