Surendra Kumar vs State Of Rajasthan
2022 Latest Caselaw 11342 Raj

(1 of 13) [CRLMP-5735/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 5735/2022

Surendra Kumar S/o Sh. Dalichand, Aged About 40 Years, R/o Sheoganj Tehsil Sheoganj Dist. Sirohi.

----Petitioner Versus

1. The State Of Rajasthan.

2. Durga Ram S/o Lumba Ram, Aged About 51 Years, R/o Kalapura Sheoganj Dist. Sirohi

----Respondents

For Petitioner(s) : Mr. Deepak Choudhary For Respondent(s) : Mr. M.S. Bhati, Public Prosecutor

JUSTICE DINESH MEHTA

Order

Reportable 13/09/2022

1. By way of preferring the present petition under section 482

of the Code of Criminal Procedure, 1973, the petitioner has

challenged the order dated 05.08.2022, passed by learned

Sessions Judge, Sirohi (hereinafter referred to as "the Revisional

Court"), whereby the revision petition filed by the petitioner

against the order dated 25.03.2022, passed by the Additional

Chief Judicial Magistrate, Sheoganj (hereinafter referred to as "the

trial Court") was rejected.

2. The facts relevant for the present case are that one

Durgaram Meghwal (hereinafter referred to as "the complainant")

filed a written complaint before the Superintendent of Police,

Sirohi, stating therein that with the connivance of the Reader of

the concerned court, one Sachinder Sharma, the present

petitioner and his counsel Mohabbat Singh Deora misused the

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solvency certificate enclosed with a surety bond for securing the

release of the petitioner which the complainant had given for

some other accused in another case.

3. After investigation, the police filed charge-sheet against the

petitioner, whereafter, by the impugned order dated 25.03.2022,

the learned trial Court framed charges against the petitioner for

the offences under sections 205, 420, 468 & 471 of the Indian

Penal Code (hereinafter referred to as "IPC").

4. Against the above referred order of the trial Court, the

petitioner preferred a revision petition, which came to be rejected

by the learned Revisional Court per viam order dated 05.08.2022.

Hence, the present petition.

5. Mr. Choudhary, learned counsel for the petitioner while

highlighting that the petitioner was behind bars, when the

petitioner's bail bonds were furnished, argued that the petitioner

cannot be said to be involved in furnishing such bail bonds.

6. It was also argued that in view of the mandatory prohibition

contained in Section 195 of the Code of Criminal Procedure

(hereinafter referred to as 'the Code'), neither can the police

investigate the matter nor can any Court frame the charges on the

basis of such FIR involving allegation of offences committed under

sections 205, 420, 468 & 471 of the IPC, as the Court can take

cognizance only pursuant to a complaint filed by the officer of the

Court or a competent authority mentioned under section 195 of

the Code.

7. Learned counsel for the petitioner relied upon the judgment

of Hon'ble the Supreme Court rendered in the case of Narendra

Kumar Srivastava Vs. State of Bihar reported in (2019) 3

SCC 318, in support of his arguments.

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8. Heard learned counsel for the petitioner, learned Public

Prosecutor and perused the material available on record.

9. There are only two issues arising out of petitioner's

arguments which are as follows:

(i) Whether the petitioner's incarceration at the time of

furnishing forged documents for his release is grounds for

quashing of impugned proceedings?

(ii) Whether the impugned proceedings should be quashed

on the basis of the alleged non-compliance of the procedure

prescribed under section 195(1)(b) of the Code?

10. It is clear from the record that a bail bond which was

furnished in the case of accused―Thana Ram has been misused

by the petitioner or his accomplices in petitioner's favour with

forged signatures of the complainant along with his solvency

certificate.

11. After investigation, the police has filed the charge-sheet

against the petitioner, as the petitioner was the sole beneficiary

and he had sent someone impersonating the complainant to sign

the bail bond.

12. It is noteworthy that during investigation, the police has

failed to find the person who had signed the bail bond. Though

the petitioner in his interrogation had taken name of one Bharat,

but the FSL report showed that the bail bond was not signed by

Bharat and accordingly Bharat's name was dropped from the list

of accused.

13. The factum of petitioner being behind bars when the

purported forged bail bonds were submitted, cannot be an

absolute defence in petitioner's favour. Maybe, he was not the

person who had signed the surety bond, but it had been done at

(4 of 13) [CRLMP-5735/2022]

his instance or for his benefit. Complete absence of petitioner's

role is a matter of evidence and such argument or defence can be

considered only at the time of final hearing, after completion of

the evidence. Therefore, this Court answers the first issue in

negative.

14. Before adverting to the second issue it would be relevant to

set out the scheme of section 195(1)(b) of the Code, the relevant

portion whereof reads thus:

"195. Prosecution for contempt of lawful author- ity of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance-

.....

(b) (i) of any offence punishable under any of the fol- lowing 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 punish- able 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

[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate."

15. A reading of the section 195(1)(b) of the Code makes it clear

that Courts cannot take cognizance of offence under section 205

of IPC when such offence is alleged to have been committed in, or

in relation to, any proceeding in any Court and of offence under

sections 471, 475 or 476 of the IPC, 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 except on the

complaint in writing of that Court or by such officer of the Court as

(5 of 13) [CRLMP-5735/2022]

that Court may authorize in writing in this behalf, or of some other

Court to which that Court is subordinate.

16. In the present case a variety of offences punishable under

sections 205, 420, 468 & 471 of the IPC have been alleged against

the petitioner out of which, section 205 of IPC being a non-

cognizable offence falls within the fold of section 195(1)(b)(i),

whereas the remaining offences (under sections 420, 468 & 471)

being cognizable offences are covered under section 195(1)(b)(ii).

17. By virtue of section 154 of the Code, the police can proceed

with its investigation simply upon receipt of information of a

cognizable offence whereas per force of provisions given under

section 155(3) of the Code, upon receipt of information of a non-

cognizable offence, the police will have to refer the informant to a

Magistrate for grant of leave to proceed with investigation. But

sub-section (4) of Section 155 clearly provides that where a case

relates to two or more offences of which at least one is cognizable,

the case shall be deemed to be a cognizable case, notwithstanding

that the other offences are non-cognizable. It will not be out of

place to reproduce Section 155(4) which reads thus:

"155. Information as to non- cognizable cases and investigation of such cases.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."

18. Net result of a collective reading of section 154, 155(3) and

155(4) of the Code is, that the police can proceed under section

154 of the Code against the petitioner upon an information that

alleges multiple offences under sections 205, 420, 468 & 471 of

the IPC.

(6 of 13) [CRLMP-5735/2022]

19. Having settled the question of police's power to investigate

the petitioner, this Court may now deal with the Court's power to

take cognizance of such cases. Section 190 of the Code confers

upon a Magistrate the power to take cognizance upon (1) receipt

of a complaint of facts which constitute such offence; (2) or a

police report of such facts; (3) or information received from any

person other than a police officer, or upon his own knowledge,

that such offence has been committed.

20. The impugned proceedings have been challenged on the

ground that learned Magistrate has proceeded on the basis of

police report or in furtherance of an FIR. Such stand of the

petitioner is completely misconceived in light of the express

provisions of the law - firstly, because section 155(4) of the Code

allows the police to treat the entire case as cognizable where the

complaint alleges commission of both cognizable and non-

cognizable offences and secondly, because section 190(1)(a) of

the Code permits the Court to take cognizance on the basis of a

police report.

21. This leads us to the question of the bar contained under

section 195(1)(b) of the Code and its applicability in the present

case. Considering that the allegations in the present case relate to

the bar contained under both sections 195(1)(b)(i) and 195(1)(b)

(ii) of the Code, this Court deems it appropriate to firstly deal with

the allegations that come within the bar given under Section 195

(1)(b)(ii) of the Code. The embargo under section 195(1)(b)(ii)

operates in respect of a document that is 'produced in a

proceeding in any Court'. Hon'ble the Supreme Court in its

judgment rendered in the case of Sachida Nand Singh and Ors.

Vs. State of Bihar and Ors, reported in AIR 1998 SC 1121,

(7 of 13) [CRLMP-5735/2022]

has interpreted this phrase in a restrictive manner, which is

consistent with the intent of the lawmakers. The relevant portion

thereof is extracted hereunder:

"9. That apart it is difficult to interpret Section 195(1)

(b)(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its production in the court. Any such construction is likely to ensue unsavoury consequences. For instance, if rank forgery of a valuable document is detected and the forgery is sure that he would imminently be embroiled in prosecution proceedings he can simply get that document produced in any long drawn litigation which was either instituted by himself or some body else who can be influenced by him and thereby preempt the prosecution for the entire long period of pendency of that litigation. It is a settled proposition that if the language of a legislation is capable of more than one interpretation, the one which is capable of causing mischievous consequences should be averted. Quoting from Gill V. Donald Humberstone & Co. Ltd, 1963 1 W.L.R.929 Maxwell has stated in his treaties (Interpretation of Statutes, 12th Edn. Page 105) that "if the language is capable of more than one interpretation we ought to discard the more natural meaning if it leads to unreasonable result and adopt that interpretation which leads to a reasonably practicable result". The Clause which we are now considering contains enough indication to show that the more natural meaning is that which leans in favour of a strict construction, and hence the aforesaid observation is eminently applicable here.

.....

12. 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.

....

(8 of 13) [CRLMP-5735/2022]

24. 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. Accordingly we dismiss this appeal."

22. This Court is of the considered view that if a document,

which has been forged beforehand, is produced or given in

evidence in a Court at a later point of time, it is not hit by the bar

embedded in Sec 195(1)(b)(ii). In other words, any person's right

to institute a complaint or lodge an FIR in relation to offences

under Sections 463, 471, 475 and 476 of IPC is not extinguished

or wiped out merely by dint of the fact that the forged document

has subsequently been produced in court proceedings.

23. Besides this, the embargo of section 195(1)(b)(ii) is

applicable when a document is given in evidence. In the present

case, the forged bail bond and the solvency certificate which were

taken out of a different case and furnished with the bail bond,

obviously for petitioner's benefit in a bid to comply with the

condition of bail, cannot be said to have been produced in

'evidence' in the trial Court.

24. Section 3 of the Indian Evidence Act, 1872 reads as under:

""Evidence". "Evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) [all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence."

Neither the bail bond nor the solvency certificate is related to the

facts in issue of that case. Hence, they cannot be said to be

'evidence'. The phrase "inspection of the court" is to be read in

conjunction with the usage of the word 'evidence' in the Code

(9 of 13) [CRLMP-5735/2022] which is judicial evidence, i.e. oral evidence tested by cross-

examination, and documentary evidence which has been proved

and which has been held to be relevant and admissible.

25. It would be appropriate to refer to section 5 of the Evidence

Act which reads thus:

"5. Evidence may be given of facts in issue and relevant facts. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others."

26. A combined reading of Section 195(1)(b)(ii) and Sections 3

and 5 of the Evidence Act clearly shows that the bar contained in

section 195(1)(b)(ii) does not apply in the impugned proceedings.

27. The act of forging the signatures of the complainant and

using it to prepare forged bail bond and using complainant's

solvency certificate without his permission are such deeds that

would precede the production of such forged documents in court.

The act of forging the signature of the complainant is enough to

implicate the petitioner - the sole beneficiary, on the basis of the

FIR filed by the complainant. Section 195(1)(b)(ii) of the Code will

not preclude the right of the complainant to file an FIR in a case

like the one at hand and the ensuing cognizance of the case by

the Magistrate under section 190(1)(a) of the Code.

28. That apart, believing the authenticity of a bail bond and

solvency certificate is not stricto sensu a part of the proceedings.

The Courts, normally, do not doubt the genuineness of such bail

bonds. If an unscrupulous person like the petitioner is given

benefit of the embargo contained in Section 195(1)(b)(ii) of the

Code, it would encourage fraud. But for the vigilance of a

(10 of 13) [CRLMP-5735/2022]

complainant or a person concerned, the Court would never come

to know of such fraud.

29. In the present factual scenario, the barrier of section 195 of

the Code may at the very best be applicable to the accusations

which constitute an offence under section 205 of the IPC but, even

in that case, a complainant cannot be expected or asked to go to

police station for some of the offences and then approach a Court

for remaining offences when they arise out of the same

transaction or set of transactions.

30. It is to be noted that regardless of whether the offence is

cognizable or non-cognizable, the investigation is to be done by

the police and trial, by the Court. Hence, when the bunch of

allegations include both cognizable as well as non-cognizable

offences, the police can register an FIR; investigate the case; file

charge-sheet; and then, magistrate can take cognizance.

31. At this stage it would be relevant to advert to the procedure

prescribed for cases mentioned under section 195 of the Code

which is provided under section 340 of the Code which reads thus:

"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

(11 of 13) [CRLMP-5735/2022] 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 or by such officer of the Court as the Court may authorise in writing in this behalf.] (4) In this section, "Court" has the same meaning as in section 195."

32. It is noteworthy, that section 340 of the Code provides for

initiating an inquiry by the Court upon receipt of information of

any of the offences contained in section 195(1)(b) of the Code and

then filing a complaint before the Magistrate of first class having

jurisdiction. Further, as per section 340(2) of the Code, where no

complaint has been made to the Magistrate having jurisdiction by

the Court in the manner prescribed under section 340(1) of the

Code, it may on its own exercise the power conferred under

section 340(1) of the Code to initiate proceedings under section

195 of the Code.

33. In so far as the requirement under section 340 of the Code

for holding an inquiry is concerned, the same is rendered

superfluous when an inquiry into the alleged offences has already

been held by the police and a charge-sheet has already been filed.

The only distinction between a complaint case and a case

instituted on a police report is the first point of information, i.e., in

the former, it is the Magistrate, whereas in the latter, it is the

police. There are no implications on the process that is to be

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followed during trial of the case regardless of it being instituted on

a complaint to a Magistrate or a charge-sheet filed by the police.

34. In its decision rendered in the case of Ramnarain & Ors.

vs. State of Rajasthan and Ors. reported in 1988(2) RLW 37,

decided on 07.03.1998, this Court has held that the object of

section 195(1)(b)(ii) of the Code is to obviate the possibility of

two conflicting findings being recorded by two courts, i.e., one

before which the document was produced and the other trying the

complaint of forgery. In the present factual backdrop, it is the trial

Court which would have tried the complaint if it had been filed in

the manner prescribed under section 340 of the Code, and hence,

the procedural irregularity is no object for continuance of the trial

as it has no repercussions on the accused and his possible

defence(s).

35. That apart, having regard to the fact that the petitioner or

his accomplices had tried to commit fraud upon the Court by filing

bail bond with forged signature of the complainant and misusing

his solvency certificate, this Court is of the considered view that

the petitioner cannot obviate or avoid trial by such argument,

even if two views are possible.

36. The judgment in case of Narendra Kumar Srivastava (supra)

relied upon by the petitioner relates to the embargo under section

195(1)(b)(i) of the Code, which according to this judgment itself

relates to a distinct category of offences from those clubbed

together under Sec 195(1)(b)(ii). The said judgment is, therefore,

clearly distinguishable from the facts of the case in hand.

37. Taking into account that the petitioner has hoodwinked the

Court and the fact that his technical pleas which have been argued

(13 of 13) [CRLMP-5735/2022] so zealously are devoid of any substance, this Court has no

hesitation in holding that he is liable to be prosecuted.

38. The misc. petition is thus, dismissed.

39. Stay petition also stands dismissed accordingly.

(DINESH MEHTA),J 131-Ramesh/-

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