Dismissed

Shiv Singh Gurjar v. the State of Madhya Pradesh

Madhya Pradesh HC10 Jan 2020CRR/3678/2019

Case brief

AI extract

What is this about?

The High Court of Madhya Pradesh dismissed a revision petition by Shiv Singh Gurjar against an order rejecting his application under Section 195 Cr.P.C. The Court held that the Assistant Commissioner of the Bhopal Gas Tribunal is deemed a Court under the Bhopal Gas Leak Disaster Act, 1985, making Section 195 applicable. However, since it could not be ascertained at that stage that the forgery occu

What did the court decide?

The revision petition was dismissed. The petitioner is free to raise objections before the trial court.

Shiv Singh Gurjar Vs the State of… — Civil Procedure and Limitation | Madhya Pradesh HC (2020)

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THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

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Hon'ble Shri Justice Rajendra Kumar Srivastava

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Cr.R. No. 3678/2019

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Shiv Singh Gurjar Vs

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State of M.P.

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Shri Sankalp Kochar, learned counsel for the petitioner.

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Ms. Shikha Singh Chouhan, learned G.A. for the respondent/State.

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O R D E R

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(10.01.2020)

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This revision petition under Section 397/401 Cr.P.C. has been preferred by the petitioner being aggrieved by the impugned order dated 19.07.2019 in S.T. No. 707/2015 passed by learned Additional Sessions Judge Rewa, whereby the learned ASJ has rejected the application under Section 195 Cr.P.C, filed by the petitioner.

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2. According to case, on the basis of letter received from S.P. Bhopal, Police has registered the F.I.R against the petitioner. Welfare Commissioner, appointed under Bhopal Gas Leak Disaster, Act 1985 has written a letter to S.P, Bhopal for registration of F.I.R. It is mentioned in the F.I.R that according to final order of Assistant Commissioner, Gas Claim Tribunal, Bhopal, petitioner has filed a certificate of State Transport Corporation, Habibganj Bhopal. On asking report from concerned department, it is informed that the sentence “petitioner with family resided at Bargkhedi” was added, thus, petitioner has manipulated the certificate. During trial, petitioner has

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filed an application under Section 195 Cr.P.C but same has been dismissed by the trial Court.

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3. Learned counsel for the petitioner submits that without assigning any cogent reason, the learned trial Court has rejected the said application in arbitrary manner whereas there is express bar prescribed under Section 195 Cr.P.C against taking cognizance of offences, which have been committed during judicial or quasi-judicial proceedings. He further submits that the trial Court has miserably failed to appreciate the true scope of Section 195 Cr.P.C and has recorded an erroneous finding. Section 195 Cr.P.C created bar to take cognizance by a Criminal Court unless a procedure culled out U/s 195 Cr.P.C is followed. The said application for compensation was dismissed by the Tribunal vide order dated 13.04.1998 on the ground that it is not proved that the applicant was residing in affected area at the relevant point of time. He further submits that though the applicant had not claimed any benefit for his family members, the learned Tribunal observed that there was interpolation in the certificate produced by the applicant. He further argued that it is crystal clear that the allegation of submission of certificate by the applicant, was made during the proceedings undertaken by the Compensation Claims Tribunal and hence the bar under Section 195 Cr.P.C. is clearly applicable. Therefore, the impugned order dated 19.07.2019 passed by the learned trial Court is unjustified. In support of his contention he has relied upon the various pronouncement of the Hon’ble Apex Court in the case of Gopalakrishna Menon and another Vs. D. Raja Reddy

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and another reported in (1983) 4 SCC 240 , Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another reported in (2005) 4 SCC 370 and Senior Manager (P& D) Riico Limited Vs. State of Rajasthan and another reported in (2018) 1 SCC 79 . With the aforesaid, he prays for allowing this appeal.

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4. On the other hand, learned Counsel for the respondent/State opposes the same and submits that no mistake was done by the trial Court in passing the impugned order. She submits that the Commissioner of Gas Tribunal can not be deemed as Court and by relying the judgment of the Hon’ble Apex Court in the case of Keshab Narayan Banerjee Vs. State of Bihar reported in AIR 2000 SC 485 , the learned trial Court has also held the same. She further submits that the charges have been framed against the petitioner and while framing the same, petitioner did not raise any objection. He has filed the application with delay and no explanation has been given by him in this regard. The petitioner has manipulated the document and prima facie offences are made out against him. With the aforesaid, she prays for dismissal of this revision petition.

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5. Heard both the parties and perused the case.

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6. On perusal of the case, it is revealed that the petitioner is facing a trial for the offences punishable under Sections 468 and 471 of IPC the allegation against the present petitioner is that he has manipulated in the certificate submitted before Gas Claim Tribunal. Vide order dated 13.04.1998, the Assistant Commissioner Bhopal Gas Tribunal has observed that in the certificate submitted by the petitioner,

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one sentence was added by him to get the claim. The tribunal has rejected his claim and directed to register the FIR against him.

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7. The main grievance of the petitioner in this petition is that the learned trial Court has wrongly rejected the application under Section 195 of Cr.P.C. field by him holding that the Assistant Commissioner, Bhopal Gas Tribunal is not a Court and provision of Section 195 Cr.P.C would not be attracted. He submits that according to Section 195 Cr.P.C, to prosecute the petitioner, a private complaint is necessary to be filed by the Assistant Commissioner Gas Tribunal or any superior officer authorized by him. Before adverting to the facts of the case, it would be appropriate to consider first the legal aspects.

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8. Section 195 of Cr.P.C. 1973 read as under:-

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“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

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(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,

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Except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is 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” (ii) of any offence described in section 463, or punishable 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 abetement of, any offence specified in sub-clause (I) or sub-clause (ii), Except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordin ate.

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(2) **************

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(3) In clause (b) of sub-sectin (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central Porvincial or State Act if declared by that Act to be a Court for the purpose of this Section.

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(4) ****************”

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9. On careful reading of Section 195 of Cr.P.C., it is manifest that the offence mentioned under Section 195 (1)(b)(i) refers to offences of false evidence and offences against public justice whereas Section 195 (1)(b) (ii) relates to offences in respect of a document produced or given in evidence in a proceeding in any Court. Section 195 Cr.P.C. only prescribe rules to be followed by the court to take cognizance of an offence specified therein in relation to any proceeding of Court. For that purpose, Section 340 defined the procedure to initiate proceeding for the offence mentioned in Section 195 of Cr.P.C. either suo moto or on the basis of an application made to it in that behalf. Therefore, it would be necessary to read the provision of Section 340 of Cr.P.C. Provision of Section 340 of Cr.P.C. is also quoted as under:-

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“340. Procedure in cases mentioned in Section 195 -

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(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

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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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(c) send it to a Magistrate of the first class having jurisdiction;

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(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 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 subsection (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (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 subsection (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 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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10 . On reading of Section 340 of Cr.P.C. it appears that a prosecution under Section 340 of Cr.P.C. can be initiated only by the sanction of the Court under whose proceedings an offence referred to in Section 195 (1) (b) has allegedly been committed. While exercising its power under Section 340 of Cr.P.C., the Court shall not only consider prima facie case but also see whether it is in or against public interest to allow criminal proceedings to be instituted.

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11. Now the question arises before this Court is as to whether the finding of the trial Court of not treating the Assistant Commissioner as a Court is correct or not ?

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12. As above noted, sub-section 3 of Section 195 Cr.P.C speaks about the definition of “Court” in the context of Section 195 Cr.P.C and according to it every Civil, Revenue or Criminal Court, and Tribunal constituted by or under a Central Provincial Act or State Act if declared by that Act to be a Court for the purpose of this Section be called as a “Court” .

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13. On careful perusal of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, it appears that sub-section 5 of Section 6 speaks about the same, according to it the commissioner and the officers subordinate to him authorized to discharge functions under the Scheme shall be deemed to be a Civil Court for the purpose of Section 195 and Chapter XXVI of the Cr.P.C. Relevant portion is also quoted as under :-

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“ 6. Commissioner and other officers and employees ,-

1. **********

2. **********

3.**********

4.**********

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5. The Commissioner and the officers subordinate to him authorised to discharge functions under the scheme shall be deemed to be a civil Court for te purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.”

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14. Therefore, in view of the specific provision of Section 6 (5) of Bhopal Gas Leak Disaster Act 1985, the Assistant Commissioner, who discharged functions under the scheme shall be deemed to be a “Court”. So far as findings of the Hon’ble Apex Court in the case of Keshav Narayan Banerjee (Supra) , the Hon’ble Apex Court has passed the same by considering the duties of claim officer under the Bihar Land Reforms Act, 1950, there was no specific provision to deem the Commissioner as a Court for the purposes of Section 195 of Cr.P.C., therefore, the facts of the Keshav Narayan Banerjee (Supra) are quite distinct from the facts of the present case. Hence, the findings of the trial Court not to treating the Assistant Commissioner, Bhopal Gas Tribunal as a Court is found to be incorrect.

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15. Now the question remains as to whether in the context of offence under Sections 468 and 471 of IPC, provision of Section 195 of Cr.P.C. would be attracted or not ?

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16. As above stated, Section 195(1)(b)(i) of Cr.P.C. refers to offences of false evidence and offences against public justice whereas Section 195(1)(b)(ii) of Cr.P.C. relates to offences in respect of document produced or given in evidence in a proceedings in any Court. In this regard, in the case of Sachida Nand Singh vs. State of Bihar and another reported in 1998(2) SCC 493, the Hon’ble Apex Court has held as under:-

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“6. A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an

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offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference?

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xxx xxx xxx

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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. Accordingly we dismiss this appeal."

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17 . Before applying the principle of Sachida Nand Singh’s case, in the present case, it is necessary to mention about the background of the case. A contrary view to that of Sachida Nand Singh’s case has been expressed by three Judges Bench in Surjit Singh vs. Balbir Singh's case [1996(3) SCC 533 ], the same was referred to a Constitutional Bench and the Bench has resolved the conflicting views in the case of Iqbal Singh Marwah Vs. Meenakshi Marwah reported in (2005) 4 SCC 370 . The Constitutional Bench has approved the view passed in Sachida Nand Singh's case. In the case of Sachida Nand Singh (Supra), the Hon’ble Apex Court has held that if forgery has been committed while the document was in the custody of the court, then prosecution can be launched only with a complaint made by that Court but if forgery was committed with a

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document which has not been produced in a Court then prosecution would lie at the instance of any person.

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18 . Further, in the case of Narendra Kumar Shrivastava vs. State of Bihar reported in (2019) 3 SCC 318 , after reiterating the pronouncement of case Sachida Nand Singh (supra) the Hon’ble Apex Court has held as under:-

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“23.In Sachida Nand Singh (supra), this Court had dealt with Section 195(1)(b)(ii) Cr.P.C unlike the present case which is covered by the preceding clause of the Section. The category of offences which fall under Section 195(1)(b)(i) Cr.P.C. refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1) (b)(ii) Cr.P.C, where a dispute could arise whether the offence of forging a document was committed outside the court or when it was in the custody of the court. Hence, this decision has no application to the facts of the present case.”

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19. The Hon’ble Apex Court in the case of Iqbal Singh

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marwah (Supra) has held as under:-

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“25. 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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20. Further, the Hon’ble Apex Court in the case of Basir-ul-

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Huq and others Vs. The State of West Bengal reported i n AIR 1953

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SC 293 has held as under:-

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“ 14. Though, in our judgment, Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also

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to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with ail offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian penal Code,, though in truth and substance the offence falls in the category of sections mentioned in Section 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially all offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.”

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21. Therefore, it makes clear that the category of the offences which fall under Section 195(1)(b)(i) of the Cr.P.C. are distinctly different from offences mentioned under Section 195 (1)(b) (ii) of Cr.P.C. In the present case, the charges for the offence punishable under Sections 468 and 471 of IPC fall into the purview of Section 195(1)(b)(ii), which relates to forging of document when it was in the custody of the Court.

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22. In the case in hand, there is nothing on record to ascertain that the above said forge was committed during the Court proceedings when the document was under the custody of the Court, it can only be gathered from evidence in trial. In such circumstances at this stage, merely because the private complaint was not filed by the competent authority, case of prosecution can not be thrown out entirely.

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23. Therefore, this petition is dismissed , however, the petitioner is free to raise his all the objections before the trial Court if it is necessary to just decision of the case. Needless to say, the trial Court shall decide the same in accordance with the law without being influenced by any finding of this Court.

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(Rajendra Kumar Srivastava) Judge

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L.R.

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Digitally signed by LALIT SINGH RANA Date: 2020.01.17 11:01:36 +05'30'

Shiv Singh Gurjar v. the State of Madhya Pradesh

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Shiv Singh Gurjar v. the State of Madhya Pradesh

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