Allowed

Jose Samuel v. State of Kerala

Kerala HC31 Jan 2012Crl.Rev.Pet/576/2006

Case brief

AI extract

What is this about?

The Kerala High Court quashed criminal proceedings initiated under Section 340 Cr.P.C. and Section 195(1)(b)(ii) Cr.P.C. against a petitioner for alleged forgery of a lease deed. The court held that Section 195(1)(b)(ii) applies only when forgery occurs while the document is in custodia legis.

What did the court decide?

The impugned proceedings are quashed and stood dropped, with liberty to the aggrieved persons to proceed in accordance with law.

Jose Samuel Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933

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CRRP.No. 576 of 2006 (B )

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CC.241/2003 of C.J.M.PATHANAMTHITTA

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REVISION PETITIONER/COUNTER PETITIONER:-

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JOSE SAMUEL, S/O.P.V.SAMUEL, NEDUMPURATH, KUMBAZHA MURI, PATHANAMTHITTA.

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BY ADVS.SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU

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RESPONDENT / COMPLAINANT:-

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. T.R. RAJESH

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRRP.No. 576 of 2006 (B )

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE A1 :	COPY OF THE COMPLAINT FILED BY THE MUNSIFF, PATHANAMTHITTA u/s. 340 (1) (b).
ANNEXURE A2 :	COPY OF THE ORDER DATED 22.10.2003 IN I.A. NO. 2288/2000 PASSED BY THE MUNSIFF COURT, PATHANAMTHITTA.
ANNEXURE A3 :	COPY OF CHARGES FRAMED BY THE MAGISTRATE COURT, PATHANAMTHITTA.

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RESPONDENT'S ANNEXURES : NIL.

TRUE COPY

P.A. TO JUDGE

DMR/ -

P. BHAVADASAN, J.

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--------------------------------------Crl. R.P. NO : 576 of 2006

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Dated this the 31^st day of January, 2012

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ORDER

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Under challenge is the order of the Chief Judicial Magistrate Court, Pathanamthitta for the offences punishable under Section 463, 471 r/w Section 34 of the I.P.C.

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The facts absolutely essential for the disposal of

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this revision petition are as follows.

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The petitioner before this court is the second plaintiff and his late father is the first plaintiff had instituted O.S. No : 446 /1998 for permanent prohibitory injunction against one Mr. P.V. Yohannan. In support of their allegations in the plaint, they produced a lease deed dated 30.04.1980 and they procured an order of injunction against the petitioner. After the defendant entered appearance, he filed an I.A. No. 2288/2000 in O.S No. 446/1998, complaining that the lease deed produced by the plaintiff is a false and a fraudulent document, and that has been

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used to procure orders from the court. He sought for taking appropriate proceedings against plaintiffs in the said court.

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It appears that an enquiry was conducted under

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Section 340 Cr.P.C and PW1 was examined and Exts. A1 to A8 were marked. CPW1 and CPW2 were examined and Exts. D1 to D3 were also marked. The learned Munsiff on consideration of the evidence before him, came to the conclusion that the lease deed complained of was a fraudulent one and same was produced in the Suit, with a view to make unlawful gain by defrauding the court and to deny the rights to the defendants therein. The court was also came to the conclusion that the offences were punishable under Section 463 and 471 of I.P.C r/w Section 34 of I.P.C. Therefore a complaint was filed before the Chief Judicial Magistrate Court, Pathanamthitta as it could be seen from the Annexure A1. The order passed by the Munsiff is produced as Annexure A2. The C.J.M Court, before which the complaint was filed, issued summons to the accused. The said order was assailed by the revision petition on a ground that the proceedings initiated by the learned Munsiff as a result in Annexure A1

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complaint is not sustainable in view of the fact that the forgery or manipulation of the lease deed said to have been produced before the Munsiff Court, in this suit namely was O.S. 446/1998, was done much before the document was produced before the court and not while the document was in custodia legis and if that is so, the proceedings initiated and continued and enquired into under Section 340 resulting in a complaint under Section 195 (1) (b) (ii) of the Cr.P.C is unsustainable. It is pointed out that, may be it is open to the complainant to file a separate complaint. The proceedings now initiated as the consequence of which charge has been framed has no sanction of law. For the said proposition, learned counsel relied on the decision reported in Iqbal Singh Marwah v. Meenakshi Marwah [ (2005) 4 SCC 370].

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The learned Public Prosecutor pointed out that even assuming that the forgery or the manipulation is done outside the court or even before the document is produced before the court that may not preclude the court from initiating the proceedings under Section 340 and filing a complaint under Section 195 (1) (b) (ii) once it is found that the allegation of forgery on an

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enquiry is prima facie true. In other words, there is no prohibition according to learned Public Prosecutor, against the court from making a complaint, once it is satisfied that the documents produced before it is forged, manipulated or fabricated.

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Though the argument of the learned Public Prosecutor may look attractive and formidable, it has to fail in the light of the decision referred to above. Before going into that decision, the statutory provision is to be taken note of.

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Section 195 of Cr.P.C reads as follows.

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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-

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(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

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(ii) of any abetment of, attempt to commit, such offence, or

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(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;

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(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

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(ii) of any offence described in section 463, or punishable

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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

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(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as thatCourt may authorise in writing in this behalf, or of some other Court to which that Court is subordinate].

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(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:

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Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

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(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 the Act to be a Court for the purposes of this section.

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(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 is situate: Provided that -

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(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;

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(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.

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Crl. R.P. NO : 576 of 2006

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Section 340 of Cr.P.C reads as follows.

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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, -

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(a) record a finding to that effect;

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(b) make a complaint thereof in writing;

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(d) take sufficient security for the appearnace for 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

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(e) bind over any person to appear and give evidence before such Magistrate.

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(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.

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(3) A complaint made under this section shall be signed, -

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(a) Where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

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[(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise

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in writing in this behalf.]

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(4) In this section, “Court” has the same meaning as in section 195.

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We are mainly concerned with Section 195 (1) (b)

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(ii) and Section 340. Recollecting the facts of the case, there is

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no allegation that the forgery or the manipulation of the document was done while the document was in cutodia legis. In other words while the document was in the custody of the court. The specific allegation made in the I.A. filed by the defendant in the suit was that a forged document has been produced in court to obtain favorable orders.

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The question that arises for consideration in such a

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case is whether the procedure under Section 340 resulting in a complaint of 195 (1) (b) (ii) is maintainable and is legal.

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Section 195 (1) (b) (ii) says that the offences mentioned in that section committed in respect of the documents produced or given in evidence of the proceedings in any court, thereby indicating that the manipulation or tampering and forgery must have been done during the period when the document was in the custody of the court.

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Section 340 of Cr.P.C. mentions the procedures to

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be followed by the court when it is brought into the notice of the court or when it is shown that the offence under Section 195 (1) (b) (ii) is attractive. Section 195 (1) (b) (ii) as rightly noticed in the decision mentioned above takes in three different situations. We are concerned with Section 195 (1) (b) (ii). Dealing with the

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said provision the apex court as served it as follows.

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In Sachida Nand Singh after analysis of the relevant privisions and noticing a number of earlier decisions (but not Surjit Singh), the Court recorded its conclusions in paras 11, 12 and 23 which are being reproduced below : (SCC pp. 499 & 501).

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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.

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It would be a strained thinking that any offence involving forgery of a document if committed far outside the percincts 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.

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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”.

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On a plain reading clause (b) (ii) of Sub-section (1) of Section 195 is capable of two interpretations. One possible

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interpretation is that when an offence described in Section 463 or punishable under Section 471, Section 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 thereof, a complaint by the court would be necessary. On this interpretation 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. The question which requires consideration is which of the two interpretations should be accepted having regard to the scheme of the Act and object sought to be achieved.

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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.

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A reading of the said decision also shows that the

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question considered in the said decision was in relation to a will. Probate was sought for in respect of the Will. The respondent contended that the will was a forged one. The application which was filed in the court concerned stated that the Will being forged. Proceedings under Section 340 was initiated and that was pending. While so, the respondents in the present proceedings

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claiming that the Will was a forged one, moved an independent complaint alleging offences under Section 463, 471 r/w Section 34 of the I.P.C. The Trial Court was of the opinion that, since the proceedings before the Lower Court was pending, it is not possible for the court to proceed with the complaint and dismissed the complaint.

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The revisional court reversed the findings and found that there is nothing which prohibited the court from proceeding with the complaint. That order was challenged before the High Court concerned which affirmed the order of the revisional Court. The matter was taken up by the Apex Court and in the decision it was held that Section 195 (1) (b) (ii) is attracted only in a case where forgery or the manipulation or tampering of the document is done while it is in custodia legis and not to a case where the document is forged, manipulated or tampered outside and subsequently produced. This would be clear from a reading of the decision referred to above.

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In the light of principles laid down in the decision referred to above, proceedings initiated now is quashed. It is

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open to the complainant to proceed in accordance with law.

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In the result, the revision petition is allowed and

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the impugned proceedings are quashed, the proceedings shall stand dropped leaving open the liberty to the aggrieved persons to proceed in accordance with law.

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P. BHAVADASAN JUDGE.

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DMR /-

Jose Samuel v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jose Samuel v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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