Chattisgarh High Court
Alka @ Shabana Parveen Khan vs Mohd.Sharik Ahmed on 16 November, 2021
Page 1 of 16
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on : 20-09 -2021
Delivered on : 16-11-2021
CRMP No. 151 of 2014
• Alka @ Shabana Parveen Khan W/o.Mohd.Sharik Ahmed Aged About
44 Years R/o. Vill. Bodla, P.O. And P.S. - Bodla, Civil And Rev. Distt.
Kabirdham C.G.
---- Petitioner
Versus
• Mohd.Sharik Ahmed S/o. Mohd.Gani Ahmed Aged About 43 Years
R/o. Ispat Nagar, Risali, Bhilai, Tah. And Distt. Durg C.G.,
Chhattisgarh
---- Respondent
------------------------------------------------------------------------------------------------------------------------
For petitioner : Mr. Syed Imtiaz Ali, Advocate.
For respondent : Mr. Vipin Tiwari, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner has filed the present petition under Section 482 of
the Code of Criminal Procedure, 1973 for quashing of Complaint
Case No 259 of 2013 (criminal proceedings) pending before the
Court of Judicial Magistrate First Class, Durg filed by
respondent No. 1 for alleged commission of offence under
Sections 419, 468 & 474 of IPC against the petitioner and three
other persons. The learned Judicial Magistrate First Class vide
its order dated 27.04.2013 subsequently registered the
complaint under Sections 419, 468, 471 read with Section 34 of
IPC against the petitioner- Alka @ Shabana Parveen and Smt.
Shabana Parveen and dismissed the complaint against Hamid
Hullah Khan and Tahir Khan.
2. The facts projected by the petitioner, in brief, are that the
respondent who is an Advocate by profession has filed a
complaint on 27-7-2012 under Sections 419, 420, 467, 469,
120-B/34 of IPC against the petitioner and three others stating
that the marriage of the petitioner with respondent was
solemnized in the year 1998 according to Muslim rites and
rituals. After three days of the marriage, the petitioner went to
her parental house and thereafter the petitioner i.e. Shabana @
Alka Parveen did not return back to her matrimonial house. After
lapse of six years i.e., on 2-8-2004 respondent moved an
application under Section 98 of Cr.P.C., before the learned
Judicial Magistrate First Class, Durg (CG). The said application
was allowed vide its order dated 2-8-2004 against which the
petitioner along with one Hamid Hullah Khan filed a revision
petition before learned Sessions Judge, Durg on 09.11.2004.
3. This Court vide its order dated 18.01.2021 has called for the
records of the Criminal Revision No. 172/2010 decided by
learned Seventh Additional Sessions Judge (FTC), Durg and
following facts were revealed. During the course of hearing of
the revision petition on 02.07.2005, respondent No. 1 raised
objection with regard to identification of the petitioner, therefore,
the learned Revisional Court has directed the petitioner to
remain present. The petitioner appeared before the Revisional
Court on 01.09.2005 and has submitted her identification but
respondent No. 1 raised dispute about her identification,
therefore, Revisional Court has directed respondent No. 1 to
lead evidence to substantiate her contention that the petitioner
is a different person. The respondent No. 1 to substantiate her
contention has examined as many as 7 to 8 witnesses namely
J.L. Parate from District Education Office, Kabirdham, K.K.
Verma, Police Constable, Civil Line, Kawardha, Bagwani Ram
Chandravanshi, District Education Officer, Kawardha, J.R.
Vaidya, Food Inspector, Pradeep Shrivastava, Assistant Grade-
II, B.L. Mahobe, Sub-Inspctor (Police), P.S.-Borla, P.L. Yadav,
Education Department, M.K. Gupta, Block Education Officer,
Borla. Respondent No.1 exhibited the document from D/1 to
D/59.
4. Respondent No. 1 has moved an application under Section 340
of Cr.P.C. read with Section 195 of Cr.P.C. against the witnesses
examined by respondent No. 1 himself and against the
petitioner also. On the said application, the Revisional Court has
dismissed the said application by recording its finding as under:-
^^mRRkjoknh dzekad&1 dh vksj ls vU;
vkosnu /kkjk 340 lgifBr /kkjk 195¼1½¼[k½
na0iz0la0 ij mHk; i{k ds rdZ lqus x,A
oLrqr% iqujh{k.kdrkZ dzekad&1 dh igpku dk
iz'u mRiUu gksus ds laca/k esa izdj.k esa
mRrjoknh dzekad&1 dh vksj ls vkifRr fd,
tkus ij muds lkf{k;ksa dk ijh{k.k fd;k x;k
gSA eq[;r% ,d lk{kh ds dFku nwljs lk{kh ds
dFkuksa ls fojks/kkHkk"kh gksus dh fLFkfr gksuk rFkk
nLrkostksa ds foijhr gksuk crk;k tk jgk gSA
ekeys ds rF;ksa] ifjfLFkfr;ksa rFkk fookfnr
fcUnqvksa dks ns[krs gq, mDr vkosnu Lohdkj
;ksX; ugha gksus ls [kkfjt fd;k tkrk gSA
iqujh{k.k ;kfpdk&izdj.k esa mHk; i{k vkxkeh
frfFk esa vko';d :i ls vafre rdZ djsaA**
5. By order dated 04.03.2011, the learned Seventh Additional
Sessions Judge has allowed the criminal revision filed by the
petitioner by quashing the order dated 02.08.2004 by which the
learned Judicial Magistrate First Class has directed the search
of the petitioner without considering the provisions of Section 98
of the Cr.P.C. in a mechanical manner. The respondent No. 1
has challenged this order before this Court by filing CRMP No.
286/2011 and has prayed for following relief:-
"1. That the Hon'ble Court may kindly be pleased
to allow this petition and quash the order dated
04.03.2011 (Annexure A-7), passed by the Learned
7th Additional Sessions Judge (FTC) Durg (C.G.)
2. That the Hon'ble Court may kindly be please to
allow the application of the petitioner filed under
section 340 read with 195 of Cr.P.C. filed before
the Learned revisional Court (Annexure A-6) and
may kindly direct to register FIR against
respondent no. 3 for making false affidavit before
the learned revisional Court below.
3. That the Hon'ble Court may kindly please to
allow the application of the petitioner for medical
examination of the revisioner No. 1, in the interest
of justice.
4. That the Hon'ble Court may kindly be please to
call for the entire relevant records from the
Learned Lower Court below."
6. The said CRMP has been dismissed by this Court vide its order
dated 23.02.2012 by observing as under:-
"3. Copy of the documents and written argument
reflect that wife of the petitioner has not been
confined for illegal purpose amounting to
commission of offence.
4. In these circumstances, I do not find any scope
for interference. Consequently, the petition is liable
to be dismissed and is hereby dismissed. However,
the petitioner is at liberty to approach proper
forum."
Thereafter, the respondent has filed a complaint against the
petitioner on 27-7-2012 for alleged commission of offence
punishable under Sections 419, 420, 467, 468, , 469, 471, 120-
B/34 of IPC. The relevant portion of the complaint is extracted
herein-below for ready reference.
7- ;g fd blds ckn ifjoknh vius lekftd
,oa /kkfeZd Lrj ij iz;klksa dk ifj.kke uk fudyus
ij 02-08-2004 dks /kkjk 98 na-iz-la- ds varxZr
U;kf;d n.Mkf/kdkjh izFke Js.kh nqxZ ds U;k;ky; esa
vkosnu izLrqr fd;k ftlij fuEu U;k;ky; us lpZ
okjaV tkjh fd;k lpZ okjaV ds vkns'k ds ifjikyu
esa vfHk;qDr dza 01 'kckuk mQZ lchuk ijohu dk
QksVks lfgr ryokuk vnk fd;k ,oa vfHk;qDr dza 01
ds LFkku ij vfHk;qDr dza 02 fuEu U;k;ky; esa
mifLFkr uk gksdj U;k;ky; ds vkns'k ds fo:)
iqujh{k.k ;kfpdk ekuuh; l= U;k;ky; nqxZ esa
nk;j dj nhA ekuuh; l= U;k;ky; nqxZ esa
ifjoknh dks mifLFkr gksus ds fy, leal tkjh fd;k
mifLFkfr ds nkSjku 01-09-2005 dks tc dfFkr
'kckuk mQZ vydk ijohu U;k;ky; esa mifLFkr gqbZ
mldks vkeus&lkeus ns[kdj ifjoknh us igpkudj
crk;k fd mifLFkr L=h mldh iRuha ugha gS ;g
vU; L=h vydk ijouh vFkkZr vfHk;qDr dza 02 gS
tks U;k;ky; dks /kks[kk nsus ds fy, Jherh 'kckuk
ijouh ds uke ls mifLFkr gqbZ gSaA tks xzke cksMyk
esa jgrh gS ,oa ifjoknh dh iRuh dh cM+h gS bl ij
ekuuh; l= U;k;ky; us vko';d iwNrkN dj
igpku ds Lrj ij lk{; izLrqr djus dks dgk x;k]
ifjoknh us U;k;ky; ds le{k Lo;a ,oa lkf{k;ksa }
kjk ;g fl) dj fn;k fd Jherh 'kckuk ds uke ls
mifLFkr L=h 'kcuk uk gksdj vydk ijohu gS ,oa
U;k;ky; esa /kkjk 340 na-iz-la- ds varxZr ifjokn Hkh
izLrqr fd;k gSA fdUrq iqujh{k.k ij vafre vkns'k
ikfjr djrs le; ekuuh; l= U;k;ky; }kjk dksbZ
fu"d"kZ ugha fn;k D;ksafd ;g rF; izdj.k esa fookn
xzLr ugha Fkk vFkkZr /kkjk 98 na-iz-la- dh ifjf.k esa
ugha vkrk gS ,oa mlds fy, i`Fkd ifjokn dh
vko';drk Fkh ,oa ifjoknh ds vkosnu ij ikfjr
vkns'k dks fujLr dj fn;k rc ifjoknh ekuuh;
l= U;k;ky; nqxZ }kjk vkijkf/kd iqujh{k.k esa
ikfjr vkns'k ds fo:) ekuuh; mPp U;k;ky;
fcykliqj ds le{k ,d fiVh'ku varxZr 482 na-iz-la-
ls dk izLrqr fd;k Fkk ftlij ekuuh; mPp
U;k;ky; us mfpr :i ls izkij Qksje esa dk;Zokgh
djus dk funsZ'k nsrs gq, ifjoknh dh ;kfpdk
vLohdkj dj nhA fd ifjoknh blh vkns'k dh
ifjis{k esa ,oa ifjoknh ds lkFk dh tk jgh
/kks[kk/kM+h ds rF;ksa ds lkFk ;g ifjokn izLrqr dj
jgk gwaA
11- ;g fd vfHk;qDrx.kksa us ,d jk; gksdj
vkijkf/kd "kM;a= djrs gq, ekuuh; Jheku lIre
vfrfjDr l= U;k;ky; ds le{k ,d vkijkf/kd
iqujh{k.k dza [email protected] 'kckuk ijohu dh vksj ls
izLrqr uk fd;k tkdj vfHk;qDr dza 02 vydk
ijohu us vius vki dks 'kckuk ijohu crkrs gq,
izLrqr fd;k Fkk rFkk mDr vkijkf/kd iqujh{k.k esa
vfHk;qDr dza 02 }kjk vfHk;qDr dza 01 dh vksj ls
feF;k 'kiFk i= is'k fd;k FkkA tks Li"Vr%
vfHk;qDrx.kksa }kjk Hkkjrh; n.M fo/kku ds varxZr
fd;k x;k xaHkhjre vijk/k gSA
7. Respondent has filed his return in which he has mentioned
about the facts and event took place in the Criminal Revision
No. 172/2010 and also submitted records of the Criminal
Revision No. 172/2010. The respondent has also filed written
argument reiterating the stand taken by him in the return and
would submit that the Cr.MP is liable to be dismissed by this
Court.
8. Learned counsel for the petitioner would submit that the
respondent/complainant has filed the complaint only to harass
the petitioner as the grievance of the petitioner has already been
decided by this court vide its order dated 23-3-2012 and in the
garb of liberty granted to the petitioner, present complaint is not
tenable. He would further submit that if any alleged forgery has
been committed by the petitioner which relates to course of
proceeding before the competent Court, therefore, no separate
complaint under sections 419, 420, 467, 468, , 469, 471, 120-
B/34 of IPC is entertainable and the proceeding under Section
195 of Cr.P.C., can be resorted to which the petitioner has
already adopted and same has been dismissed by the revisional
Court, therefore, present complaint is nothing but an abuse of
process of law. This court while exercising its power under
Section 482 of Cr.P.C., should quash the criminal proceeding
initiated against the petitioner. Learned counsel for the petitioner
has relied upon the judgment rendered by Hon'ble Supreme
Court in Chajoo Ram vs. Radheshyam and others, reported
in AIR 1971 SC 1367, in Iqbal Singh Marwah and another vs.
V. Meenakshi Marwah and another, reported in AIR 2005 (4)
SCC 370, in Poonam Chand Jain and another vs. Fazru,
reported in AIR SCW 6222, the judgment passed by Co-
ordinate Bench of this Court on 8-4-2019 in WP (227)No
2086 of 2015 in Rajkumar Soni Vs. State of CG and others,
judgment passed on 8-4-2019 by this Hon'ble Court in
WPCR No. 63 of 2014 in Ramgopal Sahu vs. State of CG and
others, the judgment dated 12-5-2017 passed by this court
in Moonlight Agency vs. State of CG, reported in 2017 (5)
CGLJ 304 and the judgment dated 14-7-2020 passed by this
Court in State of CG through District Magistrate, Raipur vs.
Rikki Sahu and others in Cr.M.P. No. 880 of 2020.
9. On the other hand, learned counsel for respondent would submit
that the documents filed with reply from Annexure R/1 to
annexure R/12 is itself evidence of frauds/cheating done by the
petitioner. He would further submit that since this court has
granted liberty to the petitioner to approach proper forum vide its
order dated 23-3-2012, therefore, the respondent has rightly
filed a complaint as the petitioner has committed the alleged
offence as enumerated in the complaint. He would further
submit that prima facie, case is made out against the petitioner
as bailable warrant of Shabeena Parveen d/o. Inayatulla Khan
aged about 42 years, village Ghonga, Post Bodla, District
Kabirdhiam has been received by the present petitioner Alka @
Shabana Parveen Khan and she submitted the same in the
name of Ku. Shabana @ Alka Khan, wife of respondent
whereas the signature of petitioner/wife of respondent, as per
marriage certificate is different, therefore, prima facie, reflects
that the petitioner has committed offence, as such issuance of
process is legal and justified and same is not liable to be
interfered with by this court.
10. I have heard learned counsel for the parties and perused the
record of the case, particularly records of Criminal Revision No.
172/2010 decided by learned Seventh Additional Sessions
Judge (FTC), Durg with utmost circumspection.
11. From bare perusal of the complaint made by respondent No. 1,
it is crystal clear that the respondent in his complaint has
narrated the forgery which has been alleged to have been
committed by the petitioner in the court, therefore, whether
provisions of Section 195 of the Cr.P.C. is applicable or not has
to be examined by this Court, therefore, it is expedient for this
court to quote Sections 195 and 340 of Cr.P.C., which are
extracted herein-below.
"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) of any offence punishable under sections 172
to 188 (both inclusive) of the Indian Penal Code (45
of 1860 ), or
(ii) of any abetment of, or attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit such
offence, except on the complaint in writing of the
public servant concerned or of some other public
servant to whom he is administratively subordinate;
(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) of any criminal conspiracy to commit, or attempt
to commit, or the abetment of, any offence
specified in sub- clause (i) or sub- clause (ii),
except on the complaint in writing of that Court, or
of some other Court to which that Court is
subordinate.
(2) Where a complaint has been made by a public
servant under clause (a) of sub- section (1) any
authority to which he is administratively subordinate
may order the withdrawal of the complaint and
send a copy of such order to the Court; and upon
its receipt by the Court, no further proceedings
shall be taken on the complaint: Provided that no
such withdrawal shall be ordered if the trial in the
Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term"
Court" means a Civil, Revenue or Criminal Court,
and includes a tribunal constituted by or under a
Central, Provincial or State Act if declared by that
Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub- section
(1), a Court shall be deemed to be subordinate to
the Court to which appeals ordinarily lie from the
appealable decrees or sentences of such former
Court, or in the case of a Civil Court from whose
decrees no appeal ordinarily lies, to the principal
Court having ordinary original civil jurisdiction within
whose local jurisdiction such Civil Court in situate:
Provided that-
(a) where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be the
Court to which such Court shall be deemed to be
subordinate;
(b) where appeals lie to a Civil and also to a
Revenue Court, such Court shall be deemed to be
subordinate to the Civil or Revenue Court
according to the nature of the case or proceeding in
connection with which the offence is alleged to
have been committed.
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.
(3) A complaint made under this section shall be
signed,-
(a) where the Court making the complaint is a High
Court, by such officer of the Court as the Court may
appoint;
(b) in any other case, by the presiding officer of the
Court.
(4) In this section," Court" has the same meaning as
in section 195.
12. The point required for consideration by this court is whether the
allegation made against the petitioner by the respondent in the
complaint falls within the ambit of Section 195 of Cr.P.C; then
subsequent complaint for alleged commission of offence under
Sections 419, 420, 467, 468, 469, 471, 120-B/34 of IPC on the
basis of complaint made by private person is abuse of process
of law or not ?
13. Learned counsel for the petitioner would submit that from bare
perusal of Section 195 (1)(b)(ii) of Cr.P.C., expression 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 means commission of such an offence is after document
has actually been produced in court or given in evidence in
court, then only the proceeding under Section 195 of the Cr.P.C.
can be initiated. He would further submit that two conditions for
application of Section 195 of the Cr.P.C. is necessary i.e. firstly
there must be allegation that an offence, it should be either an
offence under Section 464 of Cr.P.C., or any other offence
punishable under Section 471, 475, 476 of IPC has been
committed and second is that such offence should have been
committed in respect of document produced or given in
evidence in a proceeding in any court. It is undisputed that
forgery has been committed while document was in custody of
the court, then prosecution can be launched only with a
complaint made by that court. Again, if forgery was committed
with document which has not been produced in a court, then
prosecution would lie at the instance of any person.
14. Learned counsel for the petitioner would submit that in the case
on hand, from bare perusal of the complaint, the respondent in
his complaint has narrated the forgery which has been alleged
to have been committed by the petitioner in the court and the
learned revisional court has already initiated proceeding under
Section 340 of Cr.P.C. and concluded by as evident from the
order passed on 25.02.2011 by learned Seventh Additional
Sessions Judge (FTC) and the Criminal Miscellaneous Petition
challenging the same before this Court has already been
rejected on 23.03.2012, therefore, subsequent complaint for
alleged offence under Sections 419, 420, 467, 468, , 469, 471,
120-B/34 of IPC is nothing but an abuse of process of law,
therefore, proceedings deserve to be quashed by court.
15. In support of his arguments, he referred to the Constitutional
Bench judgment of Hon'ble the Supreme Court in Iqbal Singh
Marwah and another vs. Meenakshi Marwah and another,
reported in (2005) 4 SCC 370, wherein Hon'ble the Supreme
Court considering the entire law on the subject has observed in
paras 10, 23 and 33 which are extracted herein-below for ready
reference.
"10. 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.
23. 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.
23. 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) 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.
16. The respondent No. 1 while challenging the order passed by the
Revisional Court in Criminal Revision No. 172/2010 before this
Court has also prayed that the application filed under Section
340 read with Section 195 of the Cr.P.C. filed before the learned
Revisional Court may be allowed and direct to register the FIR
against respondent No. 3- Alka Parveen for making false
affidavit. This Court has already rejected the same prayer and
the petitioner has tried to use liberty granted by this Court
without considering that this Court in its judgment dated
23.03.2012 has granted liberty, the petitioner for searching of his
wife to approach proper forum because from perusal of
paragraph 3 of the order, this Court has given specific finding
that wife of the petitioner has not been confined for illegal
purpose amounting to commission of offence. As such, the
petitioner cannot take advantage of the liberty granted to him by
filing the complaint under Sections 468, 471 & 419 against the
petitioner. The filing of complaint by the respondent against the
petitioner is nothing but an abuse of process of law which this
Court can very well quash while exercising its power under
Section 482 of the Cr.P.C. in view of the law laid down by
Hon'ble the Supreme Court IN Kartar Singh Vs. State of
Punjab reported in (1994) 3 SCC 569, held as under:-
"459. Law on the subject is fairly settled. In State
of Haryana v. Bhajan Lal 1992 Supp (1) SCC
335 : 1992 SCC (Cri.) 426 a Bench of this
Court of which one of us (Pandian, J.) was a
member, after detailed examination of the
judicial decisions held, "where the allegations
made in the first information report or the
complaint, even if they were taken at their face
value and accepted in their entirety did not
prima facie constitute any offence or make out
a case against the accused", or " where the
allegations made in the FIR or complaint are
so absurd and inherently improbable on the
basis of which no prudent person could ever
reach a just conclusion that there was
sufficient ground for proceeding against the
accused", or "where a criminal proceeding was
manifestly attended with mala fides and/or
where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him
due to private and personal grudge", then the
proceedings were liable to be quashed. In
Usmanbhai Dawoodbhai Memon and Others
Vs. State of Gujarat, it was conceded that a
petition under Article 226 was maintainable. It
was urged that the observation made by this
Court in Usmanbhai Dawoodbhai Memon and
Others Vs. State of Gujarat, in relation to
exclusion of High Court's jurisdiction under
Sections 439 and 482 were squarely
applicable to Article 226. Reliance was placed
on Narcotics Control Bureau Vs. Kishan Lal
and others, also. It was urged that as far back
as Waryam Singh and Another Vs. Amarnath
and Another, it having been observed by this
Court that power of superintendence conferred
by Article 227 was to be exercised most
sparingly and only in appropriate cases in
order to keep the subordinate courts within the
bounds and their authority and not in
correcting errors. The High Court should not
be permitted to entertain a petition against
rejection of bail under Article 226 and 227.
Reliance was also placed on State of Gujarat
etc. Vs. Vakhtsinghji Sursinghji Vaghela and
Others etc., and Mohd. Yunus Vs. Mohd.
Mustaqim and Others, . The power given to
High Court under Article 226 is an
extraordinary power not only to correct the
manifest error but also to exercise it for sake of
justice. Under the scheme of the Constitution a
High Court is the highest court for purposes of
exercising civil, appellate, criminal or even
constitutional jurisdiction so far that State is
concerned. The jurisdiction possessed by it
before coming into force of the Constitution
was preserved by Article 225 and by Articles
226 and 227 an extraordinary jurisdiction was
conferred on it to ensure that the subordinate
authorities act not only in accordance with law
but they also function within the framework of
law. That jurisdiction of the High Court has not
been taken away and in fact could not be
taken away by legislation. In England even in
absence of Constitution whenever an attempt
was made by Parliament to provide that the
order was final and no writ of certiorari would
lie the High Court always struck down the
provision. Since the High Court under the
Constitution is a forum for enforcement of
fundamental right of a citizen it cannot be
denied the power to entertain a petition by a
citizen claiming that the State machinery was
abusing its power and was acting in violation
of the constitutional guarantee. Rather it has a
constitutional duty and responsibility to ensure
that the State machinery was acting fairly and
not on extraneous considerations. In State of
Maharashtra Vs. Abdul Hamid Haji
Mohammed, this Court after examining the
principle laid down in Kharak Singh Vs. The
State of U.P. and Others, and Paras Ram Vs.
State of Haryana, held that the High Court has
jurisdiction to entertain a petition under Article
226 in extreme cases. What are such extreme
cases cannot be put in a strait-jacket. But the
few on which there can be hardly any dispute
are if the High Court is of opinion that the
proceedings under TADA were an abuse of
process of court or taken for extraneous
considerations or there was no material on
record that a case under TADA was made out.
If it be so then there is no reason why should
the High Court not exercise its jurisdiction and
grant bail to the accused in those cases where
one or the other exceptional ground is made
out".
17. From the above discussion and the law on the subject,
subsequent filing of Complaint Case No 259 of 2013 (criminal
proceedings) pending before the Court of Judicial Magistrate
First Class, Durg filed by respondent No. 1 for alleged
commission of offence under Sections 419, 468 & 474 of IPC
against the petitioner - Alka @ Shabana Parveen is nothing but
an abuse of process of law, therefore, the same is liable to be
and is hereby quashed.
18. In the result, the instant petition succeeds and is allowed.
Sd/-
(Narendra Kumar Vyas)
Judge
Raju
