Delhi High Court
Pandit Digamber Sharma vs R P Anand & Ors. on 30 August, 2022
[1]
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ CRIMINAL MISCELLANEOUS CASE 1443 OF 2013
Between:-
PANDIT DIGAMBER SHARMA
S/O. SHRI DALCHAND
R/O. SHRI SANATAN DHARAM MANDIR,
71,GURU ANGAD NAGAR EXTENSION,
LAXRNI NAGAR, DELHI-92.
........PETITIONER
(Through: Mr. R.S. Rathi & Ms. Kusum, Advocates).
AND
SHRI RAM PRAKASH ANAND
S/O. SHRI BHAGAT RAM
R/O. H. NO. 87-B,
GURU ANGAD NAGAR EXTENSION,,
LAXMI NAGAR, DEIHI-92. ......... RESPONDENT NO. 1
SHRI MADAN LAI ARORA,
S/O. SHRI JUMMA RAM
R/O. H.NO. 36-B,
GURU ANGAD NAGAR EXTENSION,
LAXMI NAGAR, DELHI-92. ......RESPONDENT NO. 2
SHRI PRUSHOTTAM BABBAR
S/O. SHRI HARIBANSA
R/O. H. NO. 76-A,
GURU ANGAD NAGAR EXTENSION,
Signature Not Verified
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By:PRIYA
Signing Date:31.08.2022
16:32:43
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LAXMI NAGAR, DELHI-92. ...RESPONDENT NO. 3
SHRI RAJENDER
S/O. SHRI DIWAN CHAND
R/O. H. NO. F-112,
MANGAL BAZAR,
LAXMI NAGAR, DELHI-92. ...RESPONDENT NO. 4
SHRI GANGA RAM
S/O. SHRI HOTILAL
R/O. H. NO. 96,
GURU ANGAD NAGAR EXTENSION,
LAXMI NAGAR, DELHI-92. .......RESPONDENT NO. 5
SHRI RAM PARAS SHUKLA
S/O. SHRI SIDH NATH SHUKLA
R/O. H. NO. 555 (NEAR TEMPLE)
WEST GURU ANGAD NAGAR,
DELHI-92. ........RESPONDENT NO. 6
SHRI S.K. ARORA,
S/O. SHRI RAM PYARE LAI
R/O. 79, GURU ANGAD NAGAR EXTENTION,
LAXMI NAGAR, DELHI-92. .....RESPONDENT NO. 7
(Mr. Manoj V. George, Ms. Shilpa Liza George & Mr. Nisab,
Advocates.)
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% Pronounced on : 30.08.2022
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By:PRIYA
Signing Date:31.08.2022
16:32:43
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JUDGMENT
PURUSHAINDRA KUMAR KAURAV, J.
1. This petition under Section 482 of the Code of Criminal
Procedure, 1973, (Cr.P.C.) is directed against the order dated 05.03.2013,
whereby the learned Additional District Judge affirmed the order passed
by the learned Civil Judge (East) dated 03.08.2012, rejecting an
application under Section 340 of the Cr.P.C. filed by the petitioner.
2. The brief facts of the case are that the petitioner filed a civil suit
bearing No.370/2010 on 16.11.2010 seeking permanent injunction
against the respondents before the court of Civil Judge, Karkardooma
courts, New Delhi. The petitioner therein stated that he is Poojari/Priest
in the suit premises since 1972 and had been looking after the suit
premises bearing 'Plot No. 71, Sanatan Dharam Mandir, Guru Angad
Nagar Extn. Laxmi Nagar, Delhi-92'. After issuance of notice in the
concerned civil suit, the defendants therein, who are respondents in the
present petition, filed their written statements allegedly relying on a
forged registration certificate bearing Certificate No. S/44972/2003.
3. It is the case of the petitioner that on 02.02.2011, the learned trial
court, while placing reliance on the said forged certificate filed by
respondents herein, only partly allowed his application under Order 39
Rule 1 & 2 CPC. The petitioner realised that the certificate in question
was a forged certificate and, therefore, after getting relevant documents
under the Right to Information Act 2005, the petitioner filed an
application under Section 340 of the Cr.P.C. before the concerned Court
for initiation of the criminal proceedings against the respondents. The
learned trial court did not find it appropriate to issue notice on the
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aforesaid application and rejected the same vide order dated 03.08.2012.
The order passed by the learned Civil Judge has been affirmed in R.C.A.
No. 83/2012 by the learned ADJ vide impugned order and hence, the
present petitioner before this Court under Section 482 of Cr.P.C.
4. Learned counsel appearing on behalf of the petitioner vehemently
submitted that the approach adopted by the Civil Judge and the
Additional District Judge is erroneous, inasmuch as the courts below
have not considered the facts of the case in the right perspective.
According to him, the judgment relied upon by the learned Civil Judge in
the matter of Iqbal Singh Marwah and Anr, v. Meenakshi Marwah &.
Anr.1, if perused carefully, would support the case of the petitioner and
hence, while placing reliance on the said decision, the application in
question ought not to have been dismissed. He further submits that the
certificate in question available on record and the other materials would
clearly demonstrate that the same is a forged document and in any case,
the respondents have adversely affected the administration of justice and
have abused the process of law. He has placed reliance on paragraph
Nos. 11, 12 & 33 of the judgment of the Constitution Bench in the case
of Iqbal Singh Marwah and Anr (supra). Besides that, learned counsel
for the petitioner has also placed reliance on the decisions in the matters
of Babu Lal v. State of Uttar Pradesh and Ors.2, M.S. Ahlawat v. State
of Haryana and Anr.3 & Ashok Kumar Aggarwal v. Union of India &
Ors.4
(2005) 4 SCC 370
AIR 1964 SCC 725
(2000) 1 SCC 278
2013(14) SCALE
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5. Learned counsel for the petitioner, therefore, submitted that the
impugned order deserves to be quashed and the respondents may be
prosecuted, in accordance with law for committing forgery.
6. Learned counsel appearing on behalf of the respondents,
vehemently opposed the submissions made by the learned counsel for the
petitioner. He submits that this court in exercise of its power under
Section 482 of Cr.P.C. should not substitute its own view, when two
courts have concurrently held that the forgery in question, if at all is
made was committed before filing of the documents before the
concerned court. While taking this court through paragraph Nos. 7, 10,
11, 33 & 34, of the judgment in the case of Iqbal Singh Marwah and
Anr. (supra), he submits that the same has been rightly relied upon, and
therefore, no interference is called for. According to him, the civil suit
was filed on 16.11.2010 and the certificate in question was filed on
23.12.2010. He, therefore, submits that if at all there is any forgery of the
certificate, the same happened before 23.12.2010 and hence, the court in
exercise of its power under Section 340 of the Cr.P.C. cannot enter into
the aspect of any forgery which had taken place before filing of the said
document in the court. He also submits that the learned trial court did
not place reliance on the said forged document, and therefore, the
submissions made by the other side are controverted. He, therefore,
submitted that no interference is called for.
7. I have heard learned counsel for the parties and have perused the
material available on record.
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8. A Constitutional Bench of the Hon'ble Supreme Court in the
matter of Iqbal Singh Marwah and Anr (supra) had an occasion to
resolve conflict of opinion between two earlier decisions of the Hon'ble
Supreme Court, each rendered by a Bench of three Hon'ble Judges in
Surjit Singh v. Balbir Singh5 and Sachida Nand Singh & Anr. v. State
Of Bihar & Anr.6 regarding interpretation of Section 195(1)(b)(ii) of the
Cr.P.C. In that case, a probate case was filed by the appellants therein
against the respondents Nos.1 & 2 therein, who were widow and son of
the appellants respectively. It was alleged that probate petition was filed
on the basis of a forged Will and was contested by the respondents on the
said ground. The appellant thereafter filed original Will in the court and
the respondents thereafter filed the application under Section 340 of the
Cr.P.C. requesting the court to file a criminal complaint against appellant
No.1 therein. The application remained pending and therefore,
respondent filed the complaint against the appellants under Section 340
read with Sections 420/467/468/469/470/471 & 120-B of the IPC. The
concerned Magistrate dismissed the said complaint while holding that the
question whether the Will was genuine document or forged one, was
under consideration before the District Judge in the probate proceedings.
According to him, Section 195(1)(b)(i)(ii) of the Cr.P.C. operated as a
bar for taking cognizance of the offence under the Section invoked by the
respondents. The respondents thereafter filed criminal revision before
the Sessions Court. The Sessions Court allowed the revision and
remanded the matter to the Metropolitan Magistrate for proceeding in
accordance with law. The appellant in that case challenged the order
before the High Court under Section 482 of Cr.P.C. which was also
(1996) 3 SCC 533
(1998) 2 SCC 493
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dismissed and, therefore, the appellant approached the Hon'ble Supreme
Court.
9. The Hon'ble Supreme Court in the said case opined that on a plain
reading of Clause (b)(ii) of Sub-Section (1) of Section 195 of Cr.P.C., the
same is capable of two interpretations. One possible interpretation is that
when an offence described in Section 463 or punishable under Sections
471, 475 or Section 476 IPC is alleged to have been committed in respect
of a document which is subsequently produced or given in evidence in a
proceeding in any court, a complaint by the court would be necessary.
The other possible interpretation is that when a document has been
produced or given in evidence in a proceeding in any court and thereafter
an offence, described as aforesaid, is committed in respect thereto, a
complaint by the court would be necessary. It has also been held that if
the offence, as described in the Section is committed prior to production
or giving in evidence of the document in court, no complaint by court
would be necessary and a private complaint would be maintainable.
10. The Hon'ble Supreme Court has considered the law laid down in
the matter of Sachida Nand Singh & Anr. (supra) and paragraph Nos.
11, 12 & 13 of the said case was reproduced therein. Paragraph No. 6 of
the judgment of Iqbal Singh Marwah and Anr (supra) is reproduced as
under:-
"6. 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:
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"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 long 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 produced in a court."
11. The Hon'ble Supreme Court after analyzing the legal position has
held that the decision in the case of Sachida Nand Singh & Anr. (Supra)
has laid down the correct law. It has been held that Section 195(1)(b)(ii)
of Cr.P.C. would be attracted only when the offence enumerated in the
said provision has 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. The Hon'ble
Supreme Court, therefore, dismissed the appeal.
12. In the instant case, in paragraph No. 6 of the order dated
03.08.2012 passed by the Civil Judge, it has been held that no offence is
committed with respect to Certificate of Registration issued by Registrar
of Societies after it had been produced in court or during the time when it
is in custodia legis. Learned Additional District Judge in R.C.A. No.
83/2012 vide impugned judgment dated 05.03.2013, has found that the
object of Section 340 of the Cr.P.C. is to ascertain whether any offence
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affecting administration of justice in relation to any document produced
or given in evidence in court during the time when the document or
evidence was in custodia legis and whether it was also expedient in the
interest of justice to take such action as required under Section 340 of
Cr.P.C.
13. So far as the judgment relied upon by learned counsel for the
petitioner in the case of Babu Lal v. State of Uttar Pradesh and Ors.
(supra) is concerned, the same relates to the prayer made by the plaintiff
in that case to take action against Babu Lal under Section 479-A of
Cr.P.C., as according to the plaintiff, Babu Lal had given false evidence
before the court. The concerned court held that no action could be taken
against Babu Lal for the offence of intentionally giving false evidence or
fabricating false evidence for the purpose of being used in the suit, such
an action is barred by Section 479-A of Cr.P.C. In the opinion of the
court, it was expedient in the interest of justice that a complaint case can
be filed against Babu Lal. Babu Lal challenged the said order
unsuccessfully before the Sessions Court and before the Hon'ble High
Court and ultimately his case was also dismissed by the Hon'ble
Supreme Court. It is, thus, seen that the case of Babu Lal cited by the
petitioner would not support his stand.
14. Another decision cited by learned counsel for the petitioner in the
matter of M.S. Ahlawat (supra) would also not support the case of the
petitioner as in paragraph No. 6 thereof general procedure has been laid
down as to how a complaint may be preferred under Section 195 of the
Cr.P.C.
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15. The last judgment cited by learned counsel for the petitioner in the
case of Ashok Kumar Aggarwal (supra) is distinguishable on the facts.
In that case, the application filed by the appellant therein against
respondent No. 5 under Section 340 read with Section 195(1)(b) of the
Cr.P.C. was dismissed and order of dismissal was affirmed by the
Hon'ble Supreme Court.
16. In view of the aforesaid analysis, this court is of the considered
opinion that the view taken by the Civil Judge and affirmed by the
Additional District Judge is based on the judgment of the Constitution
Bench of the Hon'ble Supreme Court in the case of Iqbal Singh Marwah
and Anr. (supra), and hence no interference is called for in exercise of
power under Section 482 of the Cr.P.C. by this court.
17. Accordingly, the petition stands dismissed.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
AUGUST 30, 2022
p'ma
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