Patel Laljibhai Somabhai Vs. The State
of Gujarat  INSC 150 (7 May 1971)
SIKRI, S.M. (CJ) REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 1935 1971 SCR 834 1971 SCC
Code of Criminal Procedure, 1898-Section
195(1)(c), Scope of.
The appellant had filed a suit for the
recovery of certain amount on the basis of a forged cheque. A private complaint
was filed in the Court of the Judicial Magistrate against the appellant and
another person for offences punishable under sections 467 and 471 Penal Code.
The Magistrate found prima facie evidence that the appellant had fraudulently
used in the Civil Suit a forged cheque, and committed him to the Sessions for
trial. The appellant raised an objection that in view of section 195(i)(C) of
the Code of Criminal Procedure no cognizance of the offence could be taken on a
private complaint. The High Court upheld the commitment order. On the-scope and
effect of section 195(i)(C) and its applicability to cases where a forged
document has been produced as evidence in a judicial proceeding by a party
thereto and prosecution of that party is sought for offences under sections 467
and 471 Penal Code,
HELD: The words "to have been committed
by a party to any proceeding in any court' in section 195(1)(c) mean that the
offence should be alleged to have been committed by the party to the proceeding
in his character as such party, that is, after having become a party to the
proceeding. Sections 195(1)(C), 476 and 476A Code of Criminal Procedure, read
together indicate that the legislature could not have intended to extend the
prohibition contained in section 195(1)(c) to the offences mentioned therein
when committed by a party to a proceeding in that court prior to his be- coming
such party. The offences about which the court alone, to the exclusion of the
aggrieved private parties, is clothed with the right to complain, may be
appropriately considered to be only those offences committed by a party to a
proceeding in that court, the commission of which has a reasonably 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 prosecuting the delinquent party.
[842-D-H] In this case the offence under section 471 Penal Code is clearly
covered by the prohibition contained in section 195(1) (C); but the offence
under section 467 Penal Code can be tried in the absence of a complaint by the
Court unless it is shown by the evidence that documents in question were forged
by a party to the earlier proceeding in his character as such a party; in other
words after the suit had been instituted. [847B] Emperor v. Kushal Pal Singh,
I.L.R.  AU. 804 approved.
State of Gujarat v. Ali Bin Rajak, 9 Guj. Law
Reporter 1, Emperor v. Mallappa, A.I.R. 1937 Bom. 14, Har Prasad v. Hans Rai,
A.I.R. 1966 All. 124, Vivekanand V. State A.I.R. 1969 AU. 189, Harinath Singh
v. State 1964 All. L. J. 467, Basir-ul-Haq v. State of West Bengal, A.I.R. 1953
S.C. 293, Krishna Nair v. State of Kerala, (1962) 1 Crl. L. J, 340 and State v.
Bhikubhai, A.I.R. 1965 Guj. 70, referred to.
CRIMINAL APPELLATE Jurisdictionally :
Criminal Appeal No.
169 of 1969.
Appeal from the judgment and order dated
April 30, 1968 of the Gujarat High Court in Criminal Reference No. 49 of 1966.
N. N. Keswani, for the appellant.
S. K. Dholakia and S. P. Nayar, for the
The Judgment of the Court was delivered by
J,-This appeal with certificate under Art. 134(1)(c.) of the Constitution dated
against the judgment and order of the Gujuat High Court in Criminal reference
made by the Sessions Jung, Ahmedabad, rains an important question of law on
which there appears to be conflict, of judicial opinion. Even in the Gujarat
High Court the correctness of the majority view in the Full bench demon in the
State of Gujarat v. Ali Bin Rajak(1) has boon doubted by the learned Judge
hearing the criminal reference in the present case, who followed the majority
view merely because he felt bound by it. The learned single Judge did not
consider the case to be fit for reference to a larger bench for reconsidering
the majority view in the case of All Bin Rajak(2). Certificate of fitness for
appeal to this Court was, however. granted by the learned Judge.
The question raised relates to the scope and
effect of s. 195(1)(c), Cr.. P.C. and its applicability to cases where a forged
document has been produced as evidence in a judicial proceeding by a party
there to and prosecution of that party is sought for offences under ss. 467 and
471, I.P.C. in respect of that document.
The relevant facts of the case may now be
briefly stated, The appellant Patel Laljibhai Somabhai instituted a: civil suit
(No. 11 of 1964) in the court of Joint Civil Judge at Dholka against Vora
Safakat Husaian Yusufali (hereafter called the complainmant) and his brother
Vora Ahmed Huseian Yusufali for the recovery of Rs 2,000 on the basis, of a
cheque dated November 22, 1963 (alleged to have been been given to him on June
27, 1963) under: the signature of the complainant Vora Safakat Huseian Yusufali
Lakadwala on the Bombay Mercantile Cooperative Bank Ltd., Ahmedabad _Branch.
The defence in the suit was that the cheque
in question and certain coupons which were produced and relied upon in that
suit were forged and the suit was false. The suit was, dismis on January
30,,1965 by ,the Joint,, civil Judge, Dholka. The Court did not believe the (1)
9 Guj. Law Reporter I.
836 plaintive's story about the cheque. On
November 16, 1965 the complainant filed a complaint in the court of the
Judicial Magistrate, First Class, Dholka against two accused persons for
offences punishable under ss. 467 and 471, I.P.C. The two accused were Vora
Saifuddin Akbarali and the appellant. Vora Saifuddin Akbarali (accused no. 1)
is described in the complaint as the complainant's sister's husband. It was
averred in the complaint that the complainant's elder brother Ahmedbhai had
started a business in milk in Ahmedabad and accused no. I used to help him in
that business from time to time. This business had been started in the shop of
the brother of accused no. I who was also dealing in milk. Ahmedbhai used to
stay at the house of accused no. 1. The books, coupons and cheque books of the
milk business had been kept at the residence of accused no.
1. This business was carried on till July,
1962 when it was closed and Ahmedbhai left Ahmedabad for Limbdi for staying
there. The appellant had been appointed as the commission agent through accused
no. 1 and milk was collected from various milkmen through him (the appellant).
When the business was closed on July 28, 1962 a sum of Rs. 231-1-0 remained to
be paid to the appellant and nine cans of milk remained in balance with him. A
notice was given in this connection after settling all the accounts and the
appellant paid Rs. 200/- in cash to Ahmedbhai and thereafter nothing was due to
the appellant. November 30, 1962 the defendants in the suit at the instance of
accused no. I started a milk shop at Jamalpur and they used to stay at the
house of accused no. I who was employed in the Mercantile Bank and through whom
an account was opened with that bank in the name of the defendants. Accused no.
I used to utilise this account for himself and his brothers. Being a relative,
accused no. I was trusted by the complainant and his brother and they used to
act according to the instructions of accused no. 1. In June, 1962 accused no. I
had come to Limbdi and asked for a loan of Rs. 15,0001- from the complainant's
father. But this request was declined with the result that accused no. I got
annoyed and threatened him with ruinous consequence. Thereafter accused no. I
conspired with the appellant to harm the complainant and his brother and
father. Cheque books containing blank cheque forms but bearing the
complainant's signatures and all the books of account were at that time kept in
the house of accused no. 1, where the complainant and his brother used to stay.
It is in this background that the accused no. I prepared a cheque for Rs.
2,000/- in his own handwriting on a blank cheque form bearing the complainant's
signature and the appellant utilised that cheque. The appellant and accused no.
I were, on these averments, alleged to have forged the cheque. Civil Suit No.
11/64 was then filed in which this cheque was used knowing the same to be
The Magistrate found 837 prima facie evidence
that the appellant (accused No. 2) had fraudulently used in the civil suit the
forged cheque in question. The Magistrate also found prima facie evidence that
accused no. I had committed an offence punishable under s. 467, I.P.C. and the
appellant was liable under s.
34, I.P.C. The forgery of the cheque and the
use of the forged cheque as genuine were considered by the Committing Magistrate
to form part of the same transaction and the two charges could, therefore, be
tried together. The question of the necessity of complaint by the Civil Court
195(1)(c), Cr. P.C. was also raised in the
committing court but following the decision of the Bombay High Court in Emperor
v. Mallappa(1) the Magistrate held that provision to be inapplicable to the
present case. On behalf of the appellant an application was then made in the
court of the Assistant Sessions Judge in which the trial was to be held,
praying for quashing the commitment proceedings because in face of s. 195(1)(c)
no cognizance of the offence could be taken by the court on a private
complaint. As the Assistant Sessions Judge could not make any reference to the
High Court the case was withdrawn by the Sessions Judge to his own court who
after hearing the application referred the case to the High Court with a
recommendation that the commitment order be quashed. The High Court,
considering itself bound by the majority view in the case of Ali Bin Rajak(2)
declined the recommendation and upheld the commitment order as already noticed.
In view of the conflict of judicial opinion amongst the various High Courts and
even in the Gujarat High Court itself we would prefer first to consider the relevant
statutory provisions on their own language and thereafter to consider the
Section 195 occurs in Division B of Chapter
XV in Part VI of the Code of Criminal Procedure. Part VI consisting of Chapters
XV to XXX is headed "Proceedings in prosecution".
Chapter XV deals with "The jurisdiction
of criminal courts in inquiries and trial". It consists of ss. 177 to 199B
and is divided into two divisions. Sections 177 to 189 (Division A) deal with
the "Place of inquiry or trial" and ss. 190 to 199B (Division B) deal
with the "Conditions requisite for initiation of proceedings". We are
only concerned with Division B but it is unnecessary to deal with each one of
the sections contained in that Division. Only two sections require to be noticed,
namely, ss. 190 and 195.
Section 190 deals with "cognizance of
offences by Magistrates". This section, subject to the exceptions
contained in the succeeding provisions of the Code, empowers the Magistrates
mentioned therein to take cognizance of any offence upon complaint, police
report, or information or on the knowledge or suspicion of the (1) A. I. R.
1937 Bom. 14.
(2) 9 Guj. Law Reporter 1.
838 Magistrate about the commission of an
offence. The main purpose of this section is to ensure freedom and safety of the
subject by giving him a right to approach the court if he considers that a
wrong has been done to him. Sub-section (1) of S. 195 which is concerned with
(a) "Prosecution for contempt of lawful authority of public
servants", (b) "Prosecution for certain offences against public
justice", and (c) "Prosecution for certain offences relating to
documents given in evidence" places some restrictions on the general power
conferred on courts of Magistrates by s. 190 to take cognizance of offences.
This section may here be reproduced.
" 195. Prosecution for contempt of
lawful authority of public servants.- (1) No Court shall take cognizance- (a)
of any offence punishable under sections 172 to 188 of the Indian Penal Code,
except on the complaint in writing of the public servant concerned, or of some
other public servant to whom he is subordinate-, (b) Prosecution for certain
offences against public justice.-of any offence punishable under any of the
following sections of the same Code, namely, sections 193, 194, 195, 196, 199,
200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to
have been committed in or in relation to any proceeding in any Court, except on
the complaint in writing of such Court or some other Court to which such Court
is subordinate; or (c) Prosecution for certain offences relating to documents
given in evidence. Of any offence described in section 463 or punishable under
section 471, section 475 or section 476 of the same Code, when such offence is
alleged to have been committed by a party to any proceeding in any Court in
respect of a document produced or given in evidence in such proceeding, except
on the complaint in writing of such Court, or of some other Court to which such
Court is subordinate.
(2) In clauses (b) and (c) of sub-section
(1), the term "Court" includes a Civil, Revenue or Criminal Court,
but does not include a Registrar or Sub- Registrar under the Indian
Registration Act, 1877.
(3) For the purposes of this section, 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 839 within the local limits
of whose jurisdiction such Civil Court is situate :
Provided that- (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; and (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.
(4) The provisions of sub-section (1). with
reference to the offences named therein, apply also to criminal conspiracies to
commit such offences and to the abetment of such offences, and attempts to
(5) Where a complaint has been made under
subsection (1), clause (a), by a public servant, any authority to which such
public servant is subordinate may order the withdrawal of the complaint and, if
it does so, it shall forward a copy of such order to the Court and, upon
receipt thereof by the Court, no further proceedings shall be taken on the
complaint." We are directly concerned only with cl. (c) of S. 195(1) What
is particularly worth noting in this clause is (i) the allegation of commission
of an offence in respect of a document produced or given in evidence in a
proceeding in a court; and (ii) the commission of such offence by a party to
such proceeding The use of the words "in respect of" in the first
ingredient would seem to some extent to enlarge the scope of this clause. Judicial
opinion, however, differs on the effect and meaning of the words "to have
been committed by a party to any proceeding in any court". As cl. (b) of
s. 195(1) does not speak of offence committed by a party to the proceeding,
while considering decisions on that clause this distinction deserves to be
borne in mind Broad speaking two divergent views have been expressed in decided
cases in this connection. According to one view, to attract the prohibition
contained in cl. (c) the offence should be alleged to have been committed by
the party to the proceeding in his character as such party, which means after
having become a party to the proceeding, whereas according to the other view
the alleged offence may have been committed by the accused even prior to his
becoming a party to the proceeding provided that the document in question is
produced or given in evidence 840 in such proceeding. The language used seems
to us to be capable of either meaning without straining it. We have, therefore,
to see which of the two alternative constructions is to be preferred as being
more in accord with the legislative intent, keeping in view the statutory
scheme and the purpose and object of enacting the prohibition contained in S.
In construing this clause we consider it appropriate
to read it along with S. 476 Cr. P.C. which prescribes the procedure for cases
mentioned in S. 195(1)(b) and (c), also bearing in mind that under S. 476A a
superior court is empowered to complain when the subordinate court has omitted
to do so and that S. 476B confers on an aggrieved party a right of appeal from
an order refusing to make a complaint under S. 476 or S. 476A as also from an
order making such a complaint. All these provisions, forming part as they do of
the statutory scheme dealing with the subject of prosecution for offences
against administration of justice, require to be read together and when so read
would help us considerably in having a more vivid picture of the legislative
intendment in prescribing the prohibition in the two clauses of S.
195(1) and the procedure for initiating
prosecutions for offences mentioned therein. Section 476 reads :
"476. Procedure in cases mentioned in
section 195.- (1) When any Civil, Revenue or Criminal Court is, whether on
application made to it in this behalf or otherwise, of opinion that it is
expedient in the interests of justice that an inquiry should be made into any
offence referred to in section 195, sub-section (1), clause (b) or clause (c),
which appears to have been committed in or in relation to a proceeding in that
court, such Court may, after such preliminary inquiry, if any, as it thinks
necessary, record a finding to that effect and make a complaint thereof in
writing signed by the presiding officer of the Court, and shall forward the
same to a Magistrate of the first class having jurisdiction, and may take
sufficient security for the appearance of the accused before such Magistrate or
if the alleged offence is non-bailable may, if it thinks necessary so to do,
send the accused in custody to such Magistrate, and may bind over any person to
appear and give evidence before such Magistrate Provided that, where the Court
making the com- plaint is a High Court, the complaint may be signed by such
officer of the Court as the Court may appoint.
For the purposes of this sub-section, a
Presidency Magistrate shall be deemed to be a Magistrate of the first class.
841 (2) Such Magistrate shall thereupon
proceed according to law and as if upon complaint made under section 200.
(3) Where it is brought to the notice of such
Magistrate or of any other Magistrate to whom the case may have been
transferred, that an appeal is pending against the decision arrived at in the
judicial proceeding out of which the matter has arisen, he may, if he thinks
fit, at any stage adjourn the hearing of the case until such appeal is
decided." This section quite clearly postulates formation of judicial
opinion that it is expedient to hold an inquiry into an offence referred to in
cl. (b) or in cl. (c) of s. 195(1) which appears to the Court to have been
committed either in or in relation to a proceeding in that court. Offences
mentioned in cl. (b), it may be recalled, would be covered by that clause even
if they are alleged to have been committed in relation to a proceeding in a
court, whereas those mentioned in cl. (c) should be alleged to have been
committed by a party to a proceeding in a court in respect of a document
produced or given in evidence in that proceeding. Section 476, it is also
noteworthy, empowers the court even suo motu to take up the question of
expediency of making a complaint. As a general rule, the courts consider it
expedient in the interest of justice to start prosecutions as contemplated by
s. 476 only if there is a reasonable foundation for the charge and there is a
reasonable likelihood, of conviction. The requirement of a finding as to the
expediency is understandable in case of an offence alleged to have been
committed either in or in relation to a proceeding in that court in case of
offences specified, in cl. (b) because of the close nexus between the offence
and the proceeding. In case of offences specified in cl. (c) they are required
to be committed by a party to a proceeding in that court with respect to a
document produced or given in evidence in that court. The offence covered by s.
471 I.P.C. from the its very nature must be committed in the proceeding itself
by a party thereto. With respect to such an offence also expression of opinion
by the court as to the expediency of prosecution would serve a useful purpose.
It is only with respect to the offence described in s. 463 I.P.C. and the
offences punishable under ss. 475 or 476 I.P.C. that two views are possible and
therefore the effect of reading s. 195(1)(c) and s. 476 Cr. P.C. together has to
be examined for discovering the true legislative intendment in respect of these
The underlying purpose of enacting s.
195(1)(b) and (c) and s. 476 seems to be to control the temptation on the part
of the private parties considering themselves aggrieved by the offences 842
mentioned 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 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 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 entitled to move the, court for
persuading it to file the complaint. But such party is deprived of the general
right recognized by S. 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 aggrieved. private parties, is clothed with the right to
complain may, therefore, be appropriately considered to be only those offences
committed by a party to a proceeding in that court, the commission of which has
a reasonably 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 prosecuting 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
It may be recalled that the superior court is
equally competent under s. 476A Cr. P.C. to consider the question of expediency
of prosecution and to complain and there is also a right of appeal conferred by
S. 476B on a person on whose application the, Court has refused to make a
complaint under S. 476 or s. 476A or against whom such a complaint has been
made. The appellate court is empowered after hearing the parties to direct the
withdrawal of the complaint or as the case may be, itself to, make the
complaint. All these sections read together indicate that the legislature could
not have intended to extend the prohibition contained in S.
195(1)(c) Cr. P.C.-to the offences mentioned,
therein when committed by a party to a proceeding in that court prior to his
becoming such party. It is no doubt true that quite- often-if not almost
invariably-the documents are forged for being used or produced in evidence in
court before the proceedings are started. But that in our opinion cannot be the
controlling factor. because to adopt that construction, documents forged long
843 before the commencement of a proceeding in which they may happen to be
actually used or produced in evidence, years later by some other party would
also be subject to ss. 195 and 476 Cr. P.C. This in our opinion would
unreasonably restrict the right possessed by a person and, recognized by s. 190
Cr. P.C. without promoting the real purpose and object underlying these two
sections. The Court in such a case may not be in a position to satisfactorily
determine the question of expediency of making a complaint.
We may now consider the decisions cited at
the bar. In Emperor v. Kushal Pal Singh(1) it was held by a Full Bench, of that
Court that s. 195(1)(c) Cr. P.C. applies only to cases where an offence
mentioned therein is committed by a party as such to a proceeding in any court
in respect of a document which has been produced or given in evidence in such
proceeding. The words "committed by a party to a proceeding" in s.
195(1)(c) were interpreted in that case to mean "committed by a person who
is already a party to a proceeding". The court in that case read both s.
195 and s.
476 Cr. P.C. together because s. 195 was held
to lay down the bar against the cognizance of certain offences and s.
476 the method for removing the bar. On the
view taken by the court a complaint cannot be filed by a court under its
inherent jurisdiction outside the provisions of s. 476 Cr.
P.C. In Hari Prasad v. Hans Rai(1) a learned
single Judge of the Allahabad High Court, dealing with the allegations made in
a complaint under ss. 476 and 471 I.P.C. that a forged sale deed had been got
executed and registered in pursuance of a criminal conspiracy amongst three
opposite parties one of whom had filed an application for the mutation
proceedings on the basis of the said forged deed observed that a close nexus
was established between the conspiracy and its resulting in a forged deed and
the subsequent filing of the mutation application on its basis, all of which
form various links of the same chain. On this premise it was observed that
cognizance of the offences was a bar on a private complaint under s. 195(1)(b)
Cr. P.C. The learned Judge in the course of the judgment also said that even if
it is held that the allegations made in the complaint disclose offences under ss.
467 and 471 I.P.C. as alleged therein and not under s. 193 I.P.C. their
cognizance would be barred under s. 195(1)(c). The words "in respect
of" were considered to be wide enough to include even a document which was
prepared before the proceedings started in a court of law but was produced or
given in evidence in that proceeding. According to this decision, when a
document is produced in a court or is given in evidence, it is for that court
to decide whether it is genuine or forged and if (1) I. L. R.  All. 804.
(2) A. T. R. 1966 All. 124.
844 a private party is allowed to lodge a
complaint on the basis of that document describing it as forged and if that
complaint is ,entertained without affording opportunity to the court before
whom the document had been produced to give its opinion it would amount to
forestalling its decision and is likely to lead to anomalous situation and also
sometimes the contradictory findings by two competent courts.
Incidently it may be pointed out that the
earlier Full Bench decision of the Allahabad High Court was not cited in this
case. In Vivekanand v. State(1) another single Judge of the Allahabad High
Court observed that when the main finding is the one under S. 471 I.P.C.,
namely, the finding of using a forged document as genuine and the other.
offences all flow from it, in, the sense that if the charge under S. 471 fails,
the charges for the other offences would also fail, none of which offences can
in truth and substance be said to be of a distinct nature, the mere fact that
ss. 406, 467 and 420 I.P.C. are also tacked on to the offence under S. 471
I.P.C. would not serve to take the case out of the scope and ambit of S. 195
(1) (c). In this case a forged vakalatnama was produced before the Compensation
Officer for withdrawing certain amount. The Cornpensation Officer was held to
be a Court. Of the offence charged, viz. under ss. 406. 420 and 467 I.P.C.
along with S. 471 I.P.C., the first three sections were held to be cognate to
S. 471 I.P.C. In this case too the earlier Full Bench decision was not noticed
and the learned single Judge followed an earlier Division Bench decision of
that Court reported as Hari Nath Singh v. State(1) In Hari Nath Singh's
case(2), distinguishing the decision of this Court in Basr-ul-Huq v. State of
West Bengal(1) it was observed that offences under ss. 193 and 218 I.P.C. in
that case were both barred. In Krishna Nair v. State of Kerala(1) a learned
single Judge of the Kerala High Court observed that the words "when such
offence has been committed by a party to any proceedings in any court"
used in S. 195(1)(c) referred not to the date of the commission of the alleged
offence but to the date on which the cognizance of the criminal court is
invited and that when once a document has been produced or given in evidence
before a court the sanction of that court or perhaps of some other court to
which that court is subordinate is necessary before a party to the proceedings
in which the document was produced or given in evidence can be prosecuted notwithstanding
that the offence alleged was committed before the document came into the court
at a date when the person complained against was not a party to any proceeding
in court. In this case reference was made to several decisions of various High
Courts including some decisions of the Allahabad High Court prior to (1) A. I.
R. 1969 All. 189.
(3) A. I. R. 1953 S. C. 293.
(2) 1964 All. L. J. 467.
(4)(1962) 1 Crl. L., J. 340.
845 the Full Bench decision which was
significantly not noticed.
The Full Bench of the Gujarat High Court in
State of Gujarat v. Ali Bin Rajak(1) by majority held that under s. 195 (1) (c)
Cr. P.C. sanction for prosecuting a party to a proceeding for an offence under
s. 471 I.P.C. was not necessary in respect of a use made outside the court in
which the document was subsequently used, as the bar to cl.
(c) would apply only to those cases where the
offences mentioned therein were committed in regard to the documents produced
or given in evidence in proceeding. The facts in the reported case were, that
one Har Govind Kalidas had obtained a decree against Ali Bin Rajak of Junagadh
from the court of a civil Judge, Junior Division, Visavadar, District Junagadh.
Har Govind filed an execution application for re- covering his decretal dues in
the course of which the amount payable by the Mamlatdar, Dhari to the
judgment-debtor under an annuity card was attached. Garnishee order was served
on the Mamlatdar, Dhari. Rajak thereafter appeared before the Mamlatdar and
stated that he had paid the decretal amount to Har Govind. The Mamlatdar,
required Rajak to produce the receipt which was produced on July 27, 1964. The
receipt bore the date May 23, 1964, purporting to be signed by Har Govind.
Thereupon the Mamlatdar paid the amount due under the annuity card to Rajak and
made a report to the Civil Court enclosing the receipt produced by Rajak. The
Civil Court called upon Har Govind to show cause why the execution application
should not be disposed of. Har Govind denied receipt of any amount from Rajak
and alleged the receipt to be forged. The Civil Court thereupon issued notice
to the Mamlatdar requiring him to show cause why he should not be held up for
contempt of court. The Mamlatdar regretted his action in making payment without
the Civil Court's order and explained how he relied upon Rajak's word. The
Mamlatdar got the amount produced by Rajak and forwarded the same to the Civil
Court.- The amount was produced by Rajak under protest and subject to his right
to claim the same.
Thereafter Har Govind lodged a F.I.R. with
the police at Dhari and on completion of the investigation the P.S.I. sent a
charge-sheet against Ali Bin Rajak to the court. The Magistrate finding prima
facie case committed Rajak to the Sessions Court for trial. One of the charges
was under s.
420 I.P.C. and the other was under s. 471
I.P.C. The second charge with which alone the court was concerned was based on
the allegation that Rajak had made use of the receipt dated May, 23, 1964,
alleged to be forged before the Mamlatdar by producing the same before that
officer on July 16, 1964.
The objection taken by Rajak was that by
virtue of s.195(1)(c) the court could not take cognizance of this case whereas
on behalf of the prose- (1) 9 Guj. Law Reporter 1.
846 cution it was contended that the forged
receipt had been produced before the Mamlatdar before its production in the
civil court and, therefore, s. 195(1)(c) was inapplicable.
It was in this context that the majority of
the judges held that no complaint by the court was necessary whereas one
learned Judge took the contrary view. It appears to us that in the Gujarat case
the use of the forged power of attorney before the Mamlatdar occurred while the
execution proceedings were pending but since it was not this user which was the
subject matter of the charge the majority of the Judges rightly held that this
was not barred by s.195(1)(c). It was apparently not argued that the complaint
of the Mamlatdar was necessary.
In State v. Bhikubhai(1) a Division Bench of
the Gujarat High Court observed that s. 195(1)(c) Cr. P.C. would apply even
when the person accused of the offence referred therein in respect of a
document produced in a court was not a party to the proceeding in which the
document was produced provided such offence was committed by him jointly with a
person who was a party to the proceeding or provided the offence with which he
is charged is the same as alleged to have been committed by the persons who
were parties to the proceedings. The Bench also observed that the words
"party to a proceeding" are used in an abstract manner to indicate
the only class or category of offenders. It was further said that cl. (c) of s.
195(1) must be strictly construed because it encroaches upon the jurisdiction
of the ordinary criminal courts empowered to punish offences under s. 195 and
is engrafted by way of an exception to the ordinary powers of criminal courts.
It would, therefore, be improper to construe it in a manner which would
restrict the jurisdiction of criminal courts unless the restriction is expressly
provided for or necessarily follows.
Broadly speaking we are inclined to agree
with the reasoning of the Allahabad Full Bench in Kushal Pal Singh's case(2).
This in our opinion reflects the better
view,. The purpose and object of the Legislature in creating the bar against
cognizance of private complaints in regard to the offences mentioned in s.
195(1)(b) and (c) is both to save the accused person from vexatious or baseless
prosecutions inspired by feelings of vindictiveness on the part of the private
complainants to harass their opponents and also to avoid confusion which is
likely to arise on account of conflicts between findings of the courts in which
forged documents are produced or false evidence is led and the conclusions 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 bad been the (1) A. I. R. 1965 Guj. 70.
(2) I. L. R.  All. 804.
target of the offence of perjury to consider
the expediency in the larger public interest, of a criminal trial of the guilty
In this case the offence under s. 471 I.P.C.
is clearly covered by the prohibition contained in S. 195(1)(c) but the offence
under s. 467 I.P.C. can in our view be tried in the absence of a complaint by
the court unless it is shown by the evidence that the documents in question
were forged by a party to the earlier proceeding in his character as such
party, in other words, after the suit had been instituted.
The appeal is accordingly allowed in part, in
the terms just ,stated. The lower court, we hope, will dispose of the case with
K.B.N. Appeal allowed in part.