Vishwambhar Ghanshyam Ban vs State Of Maharashtra And Ors.
2006 Latest Caselaw 1014 Bom

ORDER

J.H. Bhatia, J.

1. Heard.

2. To state in brief the present petitioner filed a complaint in the Court of J. M.F.C. Nanded against the Respondents Nos. 2 to 6 for the offence punishable Under Section 467 read with Section 109 of I.P.C. and it was registered as R. C. C. No. 30/1988. It was contended by the petitioner in the complaint that the mother of the complainant had purchased land Gat No. 280 admeasuring 2 hectares 42 Ares situated at Dabhad from Uttamgir Maharaj on 25-6-1987 and she was in possession of the said land as a member of the joint family. The accused persons forged an agreement purporting to have been executed by Uttamgir Maharaj on 20-5-1987 about the same land under which the land was given in possession of the accused persons. It was contended by the petitioner that Uttamgir Maharaj had never executed any such document in favour of the accused persons. On the basis of the said forged document accused No. 1 i.e. Respondent No. 2 had filed R. C. S. No. 814/87 against mother of the petitioner seeking declaration of title and also possession of the land. The petitioner filed complaint alleging that the accused persons had committed forgery and on the basis of forged documents, the Respondent No. 2 had filed suit. On behalf of the accused it was contended that the said document i.e. agreement purporting to have been executed by Uttamgir Maharaj was already filed before the Civil Court in the said civil suit and therefore, only the Presiding Officer of that Civil Court could file a complaint after coming to the conclusion that the document was forged and no Court could take cognizance of such offence except on the written complaint by the Presiding Officer of that Civil Court or any other Judicial Officer to whom that Presiding Officer is subordinate in view of the provisions of Section 195 Cr. P.C. The learned J. M. F. C. upheld the objection and by order dated 22-9-1994 quashed the said complaint. Aggrieved by the said order, the petitioner preferred Criminal Revision Application No. 227/94 before Sessions Court. The learned 2nd Addl. Sessions Judge, Nanded dismissed the Revision Petition. Being aggrieved by the order passed by the Courts below, the petitioner has preferred present writ petition seeking to quash the orders passed by the Courts below and to restore the complaint to the file of J. M. F. C.

3. The record reveals that both the Courts below relied upon authority of the Supreme Court in Gopalkrishna Menon and Anr. v. D. Raja Reddy , in support of the view that Section 463 defines the offence of forgery and Section 467 punishes forgery of a particular category and therefore, Section 195(1)(b)(ii) Cr. P.C. would be attracted and in absence of a complaint by the Court, prosecution would not be maintainable. It appears that there were divergent opinions about the applicability of Section 195(1)(b)(ii) Cr. P.C. about forged documents which were produced in the Court. In view of the difference of opinion in Surjit Singh and Ors. v. Balbir Singh and Sachida Nand Singh and Anr. v. State of Bihar and Anr. , the matter was placed before the Constitution Bench of the Supreme Court in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. . In para 5 of Iqbal Singh (supra). Their Lordships referred to observations of the Supreme Court in Sachida Nand Singh's case as follows:

In Sachida Nand Singh after analysis of the relevant provisions and noticing a number of earlier decisions (but not Surjit Singh), the Court recorded its conclusions in paragraphs 11, 12 and 23 which are being reproduced below:

11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.

12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and along before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the Court records.

23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was in Court.

After referring to several authorities including Gopalkrishna, the Constitution Bench, in para 25 of the judgment observed as follows:

25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Criminal Procedure Code would be attracted only when the offences enumerated 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.

As such Constitution Bench of the Supreme Court has settled the legal position and now it is clear that Section 195(1)(b) (ii) 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 custody of the Court. It is not attracted if the offence was committed for the purpose of forging the document before the said document was produced before the Court.

4. In the present case the facts clearly reveal that according to the petitioner the document purporting to have been executed by Uttamgir Maharaj was forged and prepared long before it was produced in the civil suit before the Civil Court. Therefore, bar Under Section 195(1)(b)(ii) Cr. P.C. would not be applicable. In the result, it must be held that the view taken by both the Courts below is not correct and is liable to be set aside.

5. In view of the facts and legal position stated above, the Writ Petition is allowed. The order passed by J. M. F. C. on 22nd September 1994 as well as the order passed by 2nd Additional Sessions Judge in Criminal Revision No. 227/94 are hereby quashed and set aside. R. C. C. No. 30/1988 is hereby restored to the file of J. M. F. C. for disposal as per law. Rule made absolute accordingly.