SURJIT SINGH AND ORS.versusBALBIR SINGH

A                          SURJIT SINGH AND ORS.
                                     v.
                               BALBIR SINGH

                               FEBRUARY 29, 1996

B                  [K. RAMASWAMY, S. SAGHIR AHMAD
                         AND G.B. PAITANAIK, JJ.)

          Code of Criminal Procedure, 1973 : Sections 195 and 340.
                                                                                     •
C          Offences covered by Section 195-Private complaint in respect
    of~urisdiction to take congnisance of-Bar in respect of-Filing of civil suit
    by appellants-Alleged fabrication of agreement and forging of signatures by
    appellant-Private complaint by respondents-Application for quashing of
    complaint by appellant-<iround that bar enacted by section 195 was ap-
D   plicable--Rejection of application by Trial Court and First Appellate
    Court-High Court directing Magistrate to proceed with trial-Appeal-Held
    bar of section 195(1)(b)(ii) was not attracted as cognizance of private com-
    plaint had already been taken by the Court before the alleged forged document
    was filed in the Civil Court-High Court was right in directing the Trial Court
    to proceed with trial-Purpose and object of creating bar against cognizance
E   of private complaint explained.

           Gopal Krishna Menon & Anr. v. D. Raja Reddy & Anr., [1983] 3 SCR
    836; Patel Laljibhai and Somabhai v. State of Gujara4 [1971] Supp. SCR
    834; Budh Ram v. State of Rajasthan, [1963] 3 SCR 376 and Sushi/ Kumar
F   v. State of Haryana, AIR (1988) SC 419, referred to.                             ••
          Sanmukhsingh v. The King, AIR (1950) PC 31, approved.

          Kushalpal Singh 's case !LR (1953) All. 804, cited.

G         CRIMINAL APPELLATE JURISDICTION :.Criminal Appeal No.
    180 of 1988.

         From the Judgment and Order dated 4.8.86 of the Punjab & Haryana
    High Court in Crl. Misc. No. 1918-M of 1985.

H         S. Markandaya and R.S. Suri Adv. (NP) for the Appellants.
                                          70
.
                          SURJIT SINGH v. BALBIR SINGH                       71

             Mrs. Kawaljit Kochhar, J.D. Jain for the Respondents.                A
             Y.B. Sinha, Mrs. Kawaljit Kochhar and J.D. Jain for the Respon-
    dents.

             The following Order of the Court was delivered :
                                                                                  B
           Question of law referred to this Bench is : whether the criminal Court
    is debarred from proceeding with the private complaint laid against the
    appellants on June 13, 1983 for offences punishable under section 468 and
     471 of Indian Penal Code (for short, the 'IPC']? The respondent had laid
     the complaint for offences punishable under Sections 420, 467, 468, 471
    read with Section 120:B, IPC with the allegations that the appellants had C
    conspired and fabricated an agreement dated July 26, 1978 and forged the
    signature of Smt. Dalip Kaur and on the basis thereof they attempted to
    claim retention of th.e possession of the remaining part of the house. The
    Magistrate, Amritsar had examined witnesses under Section 202 of the
    Code of Criminal Procedure, 1973 [for short, the 'Code'] and ordered issue D
    of process summoning the appellants to appear on September 27, 1983. It
    would appear that the appellants filed civil suit for an injunction to restrajn
    Dalip Kaur from interfering with the possession of appellants 1 to 3 and
    he produced the agreement dated 21.2.1984 which was said to have been
    executed and signed by Dalip Kaur. Thereafter, the appellants filed an E
    application to quash the complaint on the ground of bar under section 195
    of the Code. The Magistrate and on revision the Sessions Judge dismissed
    the same. When the revision was filed in the High Court of Punjab &
    Haryana, on a question oflaw ultimately the matter was referred to Full
    Bench which had answered the question against the appellants and
    remitted the matter to the referring Judge. The learned single J udgc in the F
    impugned order dated August 4, 1986 has dismissed the revision. Thus this
    appeal by special leave.

          The only question is : whether the Magistrate, !st class at Amirtsar
    is devoid of jurisdiction to take cognizance of the offence. Shri Markan-
    daya, learned counsel for the appellants placing strong reliance on the G
    judgments of this Court in Gopal Krishna Menon & Anr. v. D. Raja Reddy
    & Anr., (1983] 3 SCR 836 and Patel Laljibhai and Somabhai v. State of
    Gujarat; (1971] Supp. SCR 834 contended that once the document has been
    produced before the Court, it is the civil Court that has seisin of the matter.
    It alone or an officer on its behalf has to lay tlie complaint in writing. The H
    72                     SUPREME COURT REPORTS                   [1996] 3 S.C.R.

A private complaint laid by the respondent is not maintainable. The criminal
    Court, therefore, cannot proceed with the trial. With a view to appreciate
    the contention it is necessary to reiterate the scope of Section 195 of the
    Code which creates an embargo on the power of the Court to take
    cognizance of the offence.

B         Section 195(1)(b)(ii) reads that no court shall take cognizance "of any
    offence described in Section 463, or punishable under Sections 471, 475 or
    476, of the said Code, when such offence is alleged to have been commited
    in respect of a document produced or given in evidence in a proceeding
    in any Court 11 •
c
         This Court in Budhu Ram v. State of Rajasthan, [1963] 3 SCR 376
    considered the scope of Section 195 and held thus :

              "It will be seen on a plain grammatical construction of this
              provision that a complaint by the court is required where the
D
              offence is of forging or of using as genuine any document which
              is known or believed to be a forged document when such document
              is produced or given in evidence in court. It is clear therefore that
              it is only when the forged document is produced in Court that a
              complaint by the Court is required. Where, however, what is
E             produced before the court is not the forged document itself, s.
              195(1)(c) will not apply on its terms. The reason for this, as stated
              by the Judicial Committee, 'is the practical common sense of the
              matter, for the court before which a copy of a document is
              produced is not really in a position to express any opinion on the
              genuineness of the original'. Therefore, even if the Assistant Set-
F
              tlement Officer is assumed to be a court within the meaning of
              s.195(1)(c) no complaint was necessary because the forged docu-
              ment itself was not produced before the Assistant Settlement
              Officer in this case but only a copy thereof."

G        In this case it was held that since the copy of the document was
    produced Section 195 of the Code was not a bar to lay private complaint.

          The purpose of imposing embargo created by section 195 was con-
    sidered in Patel Laljibhai's case (supra). This Court held at pages 841-42
H   thus:
              SURJIT SINGH v. BALBIR SINGH                           73

  "The underlying purpose of enacting s.195(1)(b) and (c) and s.476 A
  seems to be control the temptation on the part of the private
  parties considering themselves aggrieved by the offences men-
 . tioned in those sections to start criminal prosecutions on frivolous,
  vexatious or insufficient grounds inspired by a revengeful desire to
  harass or spite their opponents. These offences have been selected       B
  for the court's control because of their direct impact on the judicial
  process. It is the judicial process, in other words the administration
  of public justice, which is the direct and immediate object or victim
  of these offences and it is only by misleading the courts and thereby
  perverting the due course of law and justice that the ultimate object
  of harming the private party is designed to be realised. As the          C
  purity of the proceedings of the court is directly sullied by the
  crime the Court is considered to be the only party entitled to
  consider the desirability of complaining against the guilty party.
  The private party designed ultimately to be injured through the
  offence against the administration of public justice is undoubtedly      D
  entitled to move the court for persuading it to file the complaint.
  But such party is deprived of the general right recognised bys. 190
  Cr. P.C. of the aggrieved parties directly initiating the criminal
  proceedings. The offences about which the court alone, to the
  exclusion of the aggrived private parties, is clothed with the right
  to complain may, therefore, be appropriately considered to be only       E
  those offences committed by a party to a proceeding in that court,
  the commission of which has a reasoPably close nexus with the
  proceedings in that court so that it can, without embarking upon
  a completely independent and fresh inquiry, satisfactorily consider
  by reference principally to its records the expediency of prosecut-      F
  ing the delinquent party. It, therefore, appears to us to be more
  appropriate to adopt the strict construction of confining the
  prohibition contained in s.195(1)(c) only to those cases in which
  the offences specified therein were committed by a party to the
  proceeding in the character as such party."
                                                                           G
At page 846 it was stated that :

  "Broadly speaking we are inclined to agree with the reasoning of
  the Allahabad Full Bench in Kusha/ Pal Singh's case !LR (1953)
  All. 804. This in our opinion reflects the better view. The purpose      H
    74                    SUPREME COURT REPORTS                    [1996) 3 S.C.R.

A           and object of the Legislature in creating the bar against cognizance
            of private complaints in regard to the offenc.es mentioned in
            s.195(1)(b) and (c) is both to save the accused person from
                                                                                      ~
            vexatious or baseless prosecutions inspired by feelings of vindic-
            tiveness on the part of the private complainants to harass their
            opponents and also to avoid confusion which is likely to arise on
B
            account of conflicts between findings of the courts in which forged
            documents are produced or false evidence is led and the con-
            clusions of the criminal courts dealing with the private complaint.
            It is for this reason as suggested earlier, that the Legislature has
            entrusted the court, whose proceedings had been the target of the
c           offence of perjury to consider the expediency in the larger public
            interest, of a criminal trial of the guilty party."

          The object thereby is to protect persons from needless harassment
    by prosecution for private vendetta; to preserve purity of the judicial
D   process and unsullied administration of justice; to prevent the parties of
    the temptation to pre-empt the proceedings pending in a c0urt and to
    pressure and desist parties from proceeding with the case. Equally when
    the act complained of relate• lo an offence, or i.e., contempt of lawful
    authority of public servant, or against public justice or for offences relating
    to documents produced or given in evidence, public justice demands
E   absolute bar of private prosecution and that power be given to the court
    to lay complaint under Section 340 of the Code as per the procedure
    prescribed therein. In Patel La/jibhai's case the main controversy was as to
    when the accused had become a party to the proceedings. However, after
    the Code came into force in 1974 replacing the earlier Code of 1898 it was
F   omitted and so it is no longer of any relevance. It is seen that the appellants
    therein had filed a civil suit on the basis of a cheque dated November 22,
    1963 and the civil suit had come to be dismissed on January 30, 1%5.
    Thereafter, the private complaint was filed on November 16, 1965. In the
    light of those facts it was held that the respondent was a party to the
    proceedings in the suit and that, thereofre, the private complaint was not
G   maintainable.

        In Gopalakrislma Menon's case (supra), the facts were that the suit
  was laid on the basis of an agreement dated December 3, 1980 and also a
  receipt of even date for the recovery of the amounts on the basis of the
H said agreement. Along with the plaint the agreement and also the receipts
                           SURJITSINGHv. BALBIRSINGH                             75

      were produced in the court. Subsequently, a complaint was filed for offence      A
      under Sections 467 and 471, !PC. It was contended that Section
      195(1)(b)(ii) was a bar. That was negatived by the High Court. This Court
      considering Sections 340 and 195 of the Code had held that as soon as it
      is accepted that Section 467 punishes forgery of a particular category,
      Section 195(1)(b)(ii) immediately gets attracted. On the basis that the          B
      offence punishable under Section 467 is an offence under Section 463
      committed in the proceedings of the court and in the absence of a com-
      plaint by this Court, prosecution was held to be not maintainable.

..          In Sushi/ Kumar v. State of Haryana, AIR (1988) SC 419 the question
      was when a copy of the original document is produced and a private               C
      complaint is laid on the basis of a copy of the forged agreement, whether
      bar of Section 195(1)(b)(ii) gets attracted. This Court had held that until
      the original document is produced in the court, there is no bar of Section
      195 and that, therefore, the private complaint was held not barred.

            In Sanmukhsingh v. The King, AIR (1950) PC 31, the Privy Council           D
      also had held that where the document in respect of which a charge of
      forgery had been made against the accused had not itself been produced
      or given in evidence in certain proceedings but on the contrary a copy of
      it had been produced, the absence of complaint under Section 195(1)(c)
      cannot operate as a bar to the trial of the accused.                             E
             It would thus be clear that for taking cognizance of an offence, the
      document, the foundation for forgery, if produced before the court or given
      in evidence, the bar of taking cognizance under Section 195(1)(b)(ii) gets
      attracted and the criminal Court io prohibited to take cognizance of offence
      unless a complaint in writing is filed as per the procedure prescribed under     F
      Section 340 of the Code by or on behalf of the court. The object thereby
      h to preserve purity of the administration of justice and to allow the parties
      to adduce evidence in proof of certain documents without being compelled
      or intimidated to proceed with the judicial process. The bar of Section 195
      is to take cognizance of the offences covered thereunder.
                                                                                       G
              It is seen that in this ease cognizance was taken by the criminal Court
       on September 27, 1983 and the original agreement appears to have been
     : filed in the civil Court on February 9, 1984 - long after cognizance was
       taken by the Magistrate. It is settled law that once cognizance is taken, two
       courses are oepn to the Magistrate, namely, either to discharge the accused H
    76                    SUPREME COURT REPORTS                  [1996] 3 S.C.R.

A if the evidence does not disclose the offence or to acquit of the accused
    after the full trial. Unless either of the two courses is taken and orders
    passed, the cognizance duly taken cannot be set at naught. In this case since
    cognizance was already taken before filing of the document in the civil
    Court and the original has not been filed before cognizance was taken, the
    High Court was right in directing that the Magistrate is at liberty to
B   proceed with the trial of the criminal case.

          The appeal is accordingly dismissed.

    T.N.A.                                                    Appeal dismissed.