Sanjay Kumar Choudhary vs The State Of Jharkhand
2023 Latest Caselaw 2613 Jhar

                                       1                        Cr.M.P. No. 1054 of 2013




             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr.M.P. No. 1054 of 2013

                     Sanjay Kumar Choudhary, son of Late Shaligram
                     Choudhary, Proprietor of Sri Maa Sakambari Telecom,
                     Resident of Ward No. - 8, Main Road, P.O. & P.S. -
                     Seraikella, District - Seraikella-Kharsawan
                                                          ...... Petitioner
                                        Versus
                  1.

The State of Jharkhand

2. M/S Reliance Telecom Ltd, H Block, 1st Floor D AKC, Kopar Khairane, Navi Mumbai-400710, Maharastra.

3. Sri Anil Ambani son of Late Dhirubhai Ambani, Director Reliance Communication Limited (Smart Group), H-Block 1st Floor, D AKC, Navi Mumbai- 400710, Maharastra

4. Ashok Singh, father's name not known, The Circle Head, Reliance Telecom Limited, Maru Mention Tower, Kanke Road Ranchi, P.O. & P.S. Kanke, Ranchi, District - Jharkhand.

5. Sri Ranjan Chatterjee, father's name not known, Branch Head, Reliance Telecom Limited, 306 Akash Plaza, Golmuri, P.O. & P.S. Golmuri, Jamshedpur, East Singhbhum.

6. Sri Dusyant Kumar Duskar, son of Sri Basuli Nath Singh, resident of 15th Floor, Biscoman Tower, Gandhi Maidan (w), P.O. & P.S. Gandhi Maidan, Patna, Bihar.

7. Sri P.N. Rai, father's name not known, Stamp Vendor, License No. 10-75, Deoghar, P.O. & P.S.- B.Deoghar, Deoghar, Dist.- Jharkhand ..... Opposite Parties

For the Petitioner : Mr. Abhishek Kr. Dubey, Adv.

         For the State           : Mr. Vishwanath Ray, Spl.PP
         For the Opp. Parties    : Mr. Lakhan C. Roy, Adv.

                                  PRESENT

             HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY



By the Court:-    Heard the parties.

2. Though this criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with prayer to quash the order dated 18.01.2013 passed by learned Sessions Judge, Seraikella-Kharsawan, in Cr. Rev. No. 72 of 2012 whereby and where under learned Sessions Judge, Seraikella- Kharsawan dismissed the Criminal Revision filed by the

petitioner against the order dated 07.09.2012 passed by the learned JMFC, Seraikella-Kharsawan in P.C. Case no. 82 of 2012 by which, learned Magistrate, dismissed the complaint petition filed by the petitioner.

3. The brief fact of the case is that the petitioner was carrying on business in the name and style of M/s Maa Sakamabhari Telecom Seraikella. The O.P. no. 2 company, appointed the petitioner for selling of sim cards, top up, recharge vouchers etc. for Seraikella-Kharsawan district and there was dispute in course of the business and the petitioner filed Money Suit No. 08 of 2010 in the court of Civil Judge, (Sr. Division), Seraikella, the nomenclature of which court earlier was Subordinate Judge, I. Seraikella, for recovery of Rs. 1,62,212/- and in the said suit, the accused persons, first forged an agreement purported to have been entered into between the opp. Party no.2 - company and the petitioner and thereafter filed the same in the court. The petitioner filed P.C. Case no. 82 of 2012 alleging therein that the offence punishable under Sections 420, 465, 467, 468, 195/120B of IPC has been committed. Learned JMFC, Seraikella considering the fact that the document which was said to have been forged was produced, in a proceeding in the court of Sub Judge, I, hence, referring to section 195 of CrPC, came to conclusion that since the document has already been produced before the Sub Judge, I, no court shall take cognizance and without entering into the merits of the allegation, dismissed the complaint. The petitioner filed Criminal Revision before the learned Sessions Judge, Seraikella and learned Sessions Judge, Seraikella, vide the order dated 18.01.2013 concurred with the findings of learned JMFC, Seraikella and dismissed the Criminal Revision and upheld the order passed by learned JMFC, Seraikella.

4. Learned counsel for the petitioner relying upon the judgment of the Hon'ble Supreme Court of India in the case of Iqbal Singh Marwah and Anr. vs. Meenakshi Marwah and Anr. reported in (2005) 4 SCC 370, wherein, in the facts of that case, when a bill is stated to be forged, was filed before the Probate Court and

subsequently complaint was filed, the Hon'ble constitutional Bench relied upon the judgment in the case of Sachida Nand Singh & Anr. vs. State of Bihar & Anr. reported in (1998) 2 SCC 493, and reiterated the settled the principle of law that the bar contained under Section 195 (1) (b) (ii) of CrPC, would not apply, where the forgery of a document was committed before the said document was produced in the court and went on further to add that Section 195 (1) (b) (ii) of CrPC 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. It is then submitted that, it is not the case of the petitioner-complainant that the forgery was committed while the document was in custodia legis of learned Civil Judge, Senior Division- I, Seraikella rather forgery was committed before filing of the said document in the court, hence, both the courts below being the learned JMFC, Seraikella and learned Sessions Judge, Seraikella under a wrong notion, of law, have opined that the complaint is barred in view of the Section 195 (1) (b) (ii) of CrPC and without going to the merit of the case, dismissed the same on technical ground, hence, it is submitted that order dated 18.01.2013 be set aside and the case be remitted to the court of learned JMFC, Seraikella concerned, to consider the complaint on its merit as Section 195 (1) (b) (ii) of CrPC is not attracted to the case.

5. Both the learned Special PP and learned counsel for the opposite party no. 7 fairly submits that Section 195 (1) (b) (ii) of CrPC is not attracted to the complaint.

6. Having heard the submissions made at the bar, and after going through the materials in the record, this court has no hesitation in holding that the Hon'ble Constitutional Bench, in the case of Iqbal Singh Marwah and Anr. vs. Meenakshi Marwah and Anr. (supra) , has in no uncertain manner laid down the principle of law that Section 195 (1) (b) (ii) of CrPC 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 of the court concerned.

7. Now coming to the facts of the case, it is the specific case of the petitioner-complainant, that the offence was committed prior to the said document was produced in the court, and when it was not in custodia legis of the court of the Civil Judge, Senior Division- I, Seraikella. Hence, this court has no hesitation in holding that both the courts, i.e. learned Sessions Judge, as well as the learned Judicial Magistrate First Class, Seraikella, have committed an error of law, in holding that learned Judicial Magistrate First Class, Seraikella, was not competent to take the cognizance of the offence alleged in view of Section 195 (1) (b) (ii) of CrPC. Accordingly, the said order dated 18.01.2013 passed by learned Sessions Judge, Seraikella-Kharsawan, in Cr. Rev. No. 72 of 2012, as well as the order dated 07.09.2012 passed by the learned JMFC, Seraikella-Kharsawan in P.C. Case no. 82 of 2012; being not sustainable in law, is set aside and case is remitted to the learned Judicial Magistrate, Seraikella, to consider the complaint of the complainant in accordance with law.

8. In the result, this criminal miscellaneous petition is allowed.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 4th August, 2023 Smita /AFR