Full Judgment Text
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PETITIONER:
STATE OF KARNATAKA
Vs.
RESPONDENT:
HEMAREDDY ALIAS VEMAREDDY AND ANR.
DATE OF JUDGMENT27/01/1981
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA
CITATION:
1981 AIR 1417 1981 SCR (2) 695
1981 SCC (2) 185 1981 SCALE (1)206
ACT:
Code of Criminal Procedure 1973, S. 195(1)(b)(i) &
Indian Penal Code 1860. Ss. 467, 193 and 114-Suit for
redemption of mortgage-Conspiracy by accused to deprive
complainant of land-Sale deed forged-Prosecution without
written complaint of Court-Maintainability.
HEADNOTE:
Section 195(1) (b) (i) of the Code of Criminal
Procedure 1973 provides that no court shall take cognizance
of any offence punishable under any of the sections
enumerated therein (one of which is S. 193 I.P.C.) when such
offence is alleged to have been committed in, or in relation
to, any proceeding in any court, except upon a written
complaint from a Court.
The prosecution alleged that both the respondents
alongwith two others conspired to cheat the complainant and
to deprive him of certain lands by fabricating a sale deed.
The complainants’ paternal grand-uncle mortgaged
certain lands with possession to the father of respondent
No. 1 for a period of 20 years with the condition that
possession would be surrendered to the owner after the
expiry of the period. The father of the complainant executed
a will bequeathing the aforesaid lands to him. The period of
20 years having expired the complainant requested respondent
No. 1 to surrender possession. Respondent No. 1 having
failed to deliver possession, the complainant filed a suit
for redemption of the mortgage. Subsequent to the
institution of the suit the complainant came to know that
respondent No. 1 had purchased the lands in question from
respondent No. 2 who had impersonated the real owner, i.e.
wife of the complainant’s paternal grand-uncle. On inquiries
made in the office of the Sub-Registrar, the complainant
learnt that the sale deed had been registered on 10-11-1970.
After obtaining a registration copy of the sale deed and
ascertaining that respondent No. 2 had no property of her
own, the complainant filed a criminal complaint in the
Court. After investigation, the Sub-Inspector of police
filed a charge-sheet against both the respondents and two
others for having committed offences under sections 120B,
193, 465, 468 and 420 read with section 114 I.P.C. The
Sessions Court to which only the respondents were committed,
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convicted respondent No. 1 under section 467 read with
section 114 and section 193 I.P.C. and respondent No. 2
under section 467 I.P.C. and sentenced them to imprisonment
and fine.
In the appeals, against their conviction and sentence,
the High Court found that respondent No. 1 was guilty under
section 467 read with section 114 and section 193 I.P.C.,
but acquitted him on the ground that the complaint in the
criminal case which ended in the conviction of both the
respondents was filed by a private individual i.e. the
complainant and not by a Civil Court. As regards respondent
No. 2 it found her to be guilty under section 467 I.P.C. but
finding that she forged the document independently of
respondent No. 1 and
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being an illiterate woman who had merely put her thumb
impression on the document to admit its execution before the
Sub-Registrar modified the sentence awarded to her
In the appeal to this Court.
^
HELD:
1(i) The High Court was not right in law in holding
that the complaint was totally not maintainable against
respondent No. 1 in view of the provisions of S. 195(1)(b)
of the Code of Criminal Procedure 1973, and in not only
acquitting him of the offence under s. 467 read with s. 114
I.P.C. but also in finding that he has committed an offence
punishable under section 193 I.P.C. [710H]
1(ii) The High Court was justified in coming to the
conclusion on the evidence that respondent No. 1 was guilty
under section 467 read with section 114 I.P.C. and that
respondent No. 2 was guilty under section 467 I.P.C, [711A]
1(iii) The conviction of respondent No. 1 under section
467 read with section 114 I.P.C. and of respondent No. 2 of
467 I.P.C. are confirmed. [711B]
2. S. 195(1)(b) of the Code of Criminal Procedure
requires that the offence under s. 193 I.P.C. should be
alleged to have been committed in or in relation to, any
proceeding in any court, Since the forged sale deed was not
produced in evidence in any stage of the redemption suit, s.
195(1)(b) of the Code of Criminal Procedure is not
attracted. Therefore, the Magistrate who committed, the
accused to the Sessions, could not have taken cognizance of
any offence under s. 193 I.P.C. so far as respondent No. 1
is concerned. The complaint could have been taken on file
only for an offence punishable under s. 467 read with s. 114
I.P.C. so far as that accused is concerned. No complaint by
the court for prosecuting respondent No. 1 for offence under
s. 467 read with s. 114 I.P.C. is therefore required and he
could be validly convicted for that offence on the complaint
given by the private individual. [701E-G]
3. 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.
[708H]
4. In cases, where in the course of the same
transaction an offence for which no complaint by a Court is
necessary under section 195(1)(b) of the Code of Criminal
Procedure, and an offence for which a complaint of a court
is necessary under that sub-section, are committed, it is
not possible to split up and hold that the prosecution of
the accused for the offences not mentioned in s. 195(1)(b)
of the Code of Criminal Procedure should be upheld. [702G]
In the instant case the document forged by Respondent
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No. 2 was the sale deed dated 10-11-70. The suit for
redemption of the mortgage was filed by the complainant P.W.
3 on 24-11-70. He filed the complaint before the police on
24-11-70 and before the court subsequently on 15-12-70. The
forged sale deed dated 10-11-70 was not produced in the suit
filed by the complainant for redemption of the mortgage.
[703A]
697
5. The offence of abetment of forgery was complete when
the forged sale deed dated 10-11-70 was registered. But no
offence under s.195(1)(b) of Cr. P.C. was committed as the
forged sale deed was not at all put in evidence at any stage
in the redemption suit filed by the complainant. [710B]
In Re. V. V. L. Narasimhamurthy, [1955] A.I.R. Madras
21 approved.
Vasudeo Ramchandra Joshi [1923] A.I.R. Bombay 105
disapproved.
In re. Khanderao Yeshwant (1912) 14 Bombay Law Report
362 & Mahadev Yadneshwar Joshi (1912) 14 Bombay Law Report
715 distinguished.
Girija Nandini Devi v. Bigendra Nandini Choudry [1967]
1 S.C.R. 93 & Patel Laljibhai Somabhai v. The State of
Gujarat [1971] Supp. S.C.R. 834 referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
341 of 1975.
Appeal by Special Leave from the Judgment and Order
dated 19-4-1974 of the Karnataka High Court in Criminal
Appeal Nos. 324 and 335 of 1973.
N. Nettar, and R. C. Kaushik for the Appellant.
P. Ram Reddy and A. V. V. Nair for Respondent No. 1.
The Judgment of the Court was delivered by
VARADARAJAN,J. This appeal by special leave has been
filed by the State of Karnataka against the judgment of a
Division Bench of the Karnataka High Court in Criminal
Appeals Nos. 324 and 335 of 1973 against the acquittal of
Hemareddy alias Vemareddy (A-1) in Crl. A. No. 324 of 1973
and against the order in Crl. A. No. 335 of 1973 modifying
the sentence awarded by the learned Sessions Judge, Raichur
to Pyatal Bhimakka (A-2) in Sessions Case No. 25/72. The
learned Sessions Judge convicted Hemareddy alias Vemareddy
under s. 467 read with s. 114 and s. 193 Indian Penal Code
and sentenced him to undergo R.I. for two years and to pay a
fine of Rs. 500/-, and in default to undergo R. I. for three
months under s. 467 read with s. 114 and to undergo R.I. for
six months and to pay a fine of Rs. 200/-and in default to
undergo R.I. for one month for the offence under s. 193
I.P.C. He convicted Pyatal Bhimakka (A-2), the appellant in
Crl. A. No. 335 of 1973 before the High Court, under s. 467
I.P.C. and sentenced her to undergo R.I. for six months and
to pay a fine of Rs. 200/- and in default to undergo R.I.
for one month. Both the accused filed appeals before the
High Court against their convictions and sentences awarded
to them by the learned Sessions Judge.
In Crl. A. No. 324 of 1973 filed by Hemareddy alias
Vemareddy, the learned Judges held that on the facts there
could be no doubt
698
that he is guilty under s. 467 read with s. 114 and s. 193
I.P.C. In the appeal filed by Pyatal Bhimakka, Crl. A. No.
335/73, also the learned Judges found that there could be no
doubt that she is guilty under s. 467 I.P.C. They confirmed
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the conviction of Pyatal Bhimakka, observing that she forged
the document independently of Hemareddy alias Vemareddy but
taking into consideration the fact that Pyatal Bhimakka is
an illiterate women who had been taken to the Office of the
Sub-Registrar by Hemareddy alias Vemareddy and asked to put
her thumb impression to the document and to admit execution
of the document, which she did, for which Hemareddy alias
Vemareddy paid her a sum of Rs. 100/-, the learned Judges
felt that the sentence awarded to Pyatal Bhimakka by the
learned Sessions Judge was harsh and that the ends of
justice would be met by sentencing her to undergo rigorous
imprisonment for one day, which she had already undergone
before she was probably released on bail, and to pay a fine
of Rs. 200/- and in default to suffer R.I. for a period of
one week and thus modified the sentence awarded to Pyatal
Bhimakka accordingly. The State has filed the appeal by
special leave also against this order modifying the sentence
awarded to Pyatal Bhimakka.
The learned Judges of the High Court, however,
acquitted Hemareddy alias Vemareddy, the appellant in Crl.
A. No. 324 of 1973 and set aside the sentence awarded to him
by the learned Sessions Judge on the ground that the
complaint in the criminal case which ended in the conviction
of both accused in the Sessions Court, was filed by the
private individual Narsappa Eliger, P.W. 3 and not by the
Civil Court. As stated earlier the Criminal Appeal has been
filed by the State against the acquittal of Hemareddy alias
Vemareddy by the High Court.
It is necessary to set out briefly the facts of the
case. One Narsappa is the son of one Thimmaiah who had an
elder brother Nagappa Thimmaiah and Nagappa were the sons of
one Thayappa. Nagappa’s wife was one Bhimakka alias
Bhieamma. Thimaiaha and Nagappa lived for sometime in
Underaldoddi. Nagappa purchased lands bearing Survey Nos.
93, 94 and 96 in Underaldoodi. Those lands were in the
possession and enjoyment of Narsappa’s father Thimmaiah.
Subsequently, Nagappa and his wife left Underaldoddi and
settled down in Alkur village. While Nagappa was living in
Alkur village, he mortgaged the aforesaid lands with
possession to one Kurbar Bhimayya, the father of Hemareddy
alias Vemareddy, A-1. According to the terms of the
mortgage, Kurbar Bhimayya was to be in possession of the
lands for twenty years and surrender possession thereof to
the
699
Owner after the expiry of the period. Subsequently, Nagappa
and his wife as well as Nagappa’s brother Thimmaiah came and
settled down at Raichur. Bhimakka alias Bhisamma, the wife
of Nagappa, died in or about 1953 and Nagappa died two or
three years later. Nagappa’s brother also died leaving
behind him his son Narsappa as the only heir in the family.
Meanwhile Kurbar Bhimayya, the mortgagee and father of
Hemareddy alias Vemareddy (A-1) died. Hemareddy alias
Vemareddy continued in possession of the lands. Narsappa,
son of Nagappa’s brother Thimmaiah executed a will in favour
of the complainant Narsappa Eliger, bequeathing the
aforesaid lands to him.
Narsappa Eliger, the legatee under the will of
Thimmaiah’s son Narsappa, approached Hemareddy alias
Vemareddy, the son of the mortgagee Kurbar Bhimayya, who was
in possession of the lands and requested him to surrender
possession of the lands on the ground that the period of
twenty years had expired. Then Hemareddy alias Vemareddy
informed the complainant Narsappa Eliger that he would
consider his request a few days later as it was harvesting
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time. Finding that there was no response from Hemareddy
alias Vemareddy, Narsappa Eliger wrote a letter, for which,
according to the prosecution, Hemareddy alias Vemareddy sent
the reply, Ex. P-3 Subsequently, Narsappa Eliger filed a
suit for redemption of the mortgage. Subsequent to the
institution of the suit, Narsappa Eliger came to know from
Shivareddy (P.W. 12) that Hemareddy alias Vemareddy has
purchased the lands in question from Pyatal Bhimakka (A-2)
and another and that A-2 had impersonated the real owner
Bhimakka, wife of Nagappa, who, as stated earlier, had died
in or about 1953. Thereupon, Narsappa Eliger made inquiries
in the Office of the concerned Sub-Registrar and learned
that the sale deed had been registered on 10-11-1970. After
obtaining a registration copy of the sale deed and after
making inquiries at Alkur Narsappa Eliger learnt that Pyatal
Bhimakka (A-2) had no properties of her own. Narsappa Eliger
thereafter filed a criminal complaint in the Court, which
was referred to the Police. After investigation, the Sub-
Inspector of Police, P.W. 21 filed a charge-sheet against
both the accused and two others alleging that they had
conspired to cheat Narsappa Eliger and to deprive him of the
lands and that in pursuance of that conspiracy they put
forward Pyatal Bhimakka as Nagappa’s wife Bhimakka and got
the sale deed executed by her and they thereby committed
offences under ss. 120B, 193, 465, 467, 468 and 420 read
with s. 114 of the Indian Penal Code. Only Hemareddy alias
Vemareddy and Pyatal Bhimakka, A-1 and A-2 were committed to
the Court of Sessions at Raichur, and they were found guilty
and convicted and sentenced as mentioned above.
We were taken through the judgment of the learned
Judges of the High Court. We are satisfied that the learned
Judges were justified
700
in coming to the conclusion on the evidence that Hemareddy
alias Vemareddy is guilty under s 467 read with s. 144
I.P.C. and that Pyatal Bhimakka is guilty under s. 467
I.P.C. Since we agree with the learned Judges of the High
Court on the question of fact in so far as it relates to A-2
in full and as regards Hemareddy alias Vemareddy (A-2) in
respect of his conviction under s. 467 read with s. 114, it
is unnecessary for us to refer to the evidence relied upon
by the learned Judges for coming to the conclusion that
Hemareddy alias Vemareddy is guilty under s. 467 read with
s.114 I.P.C. and that Pyatal Bhimakka is guilty under s. 467
I.P.C. This Court has observed in Girija Nandini Devi v.
Bigendra Nandini Choudry that it is not the duty of the
appellate court when it agrees with the view of the trial
court on the evidence to repeat the narration of the
evidence or to reiterate the reasons given by the trial
court expression of general agreement with reasons given by
the court the decision of which is under appeal, will
ordinarily suffice. We shall deal with the case of the
prosecution. against Hemareddy alias Vemareddy under s. 193
I.P.C. separately. We, therefore, confirm the conviction of
Hemareddy alias Vemareddy under. s. 467 read with s. 114
I.P.C. all and of Pyatal Bhimakka under s. 467 I.P.C. We are
of the opinion that no interference with the judgment of the
learned Judges of the High Court in regard to the sentence
awarded to Pyatal Bhimakka is called for having regard to
the fact that the learned Judges have given sufficient
reasons for taking a lenient view in regard to that accused
on the question of sentence. We, therefore, dismiss the
Criminal Appeal in so far as it relates to the question of
sentence awarded to Pyatal Bhimakka.
It is seen from the judgment under appeal that the
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learned Public Prosecutor of Karnataka had contended before
the learned Judges of the High Court that the case against
Hemareddy alias Vemareddy for fabricating false evidence may
not be maintainable in view of the provisions of s.
195(1)(b) of the Code of Criminal Procedure, that he may be
prosecuted for abetting the offence of forgery and that the
conviction of that accused under s. 467 read with s. 114
I.P.C. is justified on the facts of this case for while s.
193 I.P.C. is one of the sections mentioned in s. 195(1)(b)
of the Code of Criminal Procedure, s. 467 I.P.C. is not
mentioned in that sub-clause of s. 195(1). The learned
Judges rejected that submission, relying upon three
decisions of the Madras High Court in Perianna Muthirian v.
Vengu Ayyar, Ravanaoppa Reddy v. Emperor and in re. V.V.l.
Narasimurthy. In the first of those cases the complainant
stated
701
that certain persons conspired with others and forged a
document with the object of using it in evidence in certain
proceedings pending in a court and other proceedings which
might follow. That document was actually used in the
proceedings pending before a court, and it has been held
that the offence complained of fell under s. 195(1) (b) of
the Code of Criminal Procedure and, therefore, the complaint
cannot be taken cognizance of unless it was in writing and
by the court in which the offence was alleged to have been
committed. It has been observed in that decision that to
hold in such a case that although a private person was
barred from prosecuting the accused for fabricating false
evidence, he would still be at liberty to prosecute him for
fraud would result in the provisions of s. 195(1) (b) of the
Code of Criminal Procedure being evaded and that it is not
open to the court to try the accused either for fabricating
evidence or for fraud because the specific offence of
fabricating false evidence should be given preference over
the more general offence of forgery. In the second case the
complaint was filed by a private person alleging that the
accused had fabricated a promissory note and induced a third
party to file a suit against the complainant so as to obtain
a fraudulent decree, and it has been held that the
allegation made in the complaint attracted the provisions of
s. 195(1) (b) of the Code of Criminal Procedure and the
Court must refuse to take cognizance. In the third case,
Somasundaram, J. has observed :
"The main point on which Mr. Jayarama Aiyar
appearing for the petitioner seeks to quash this
committal is that on the facts an offence under s. 193
I.P.C. is disclosed for which the court cannot take
cognizance without a complaint by the court as provided
under s. 195(1)(b) Criminal P.C. The first question
which arises for consideration is whether on the facts
mentioned in the complaint, an offence under s. 193
I.P.C. is revealed. Section 193 reads as follows :
"Whoever intentionally gives false evidence in any
stage of a judicial proceeding, or fabricates false
evidence for the purpose of being used in any stage of
a judicial proceeding, shall be punished with
imprisonment of either description for a term which may
extend to 7 years, and shall also be liable to fine."
"Fabrication of false evidence" is defined in s.
192. The relevant part of it is :
"Whoever causes any circumstance to exist
intending that such circumstance may appear in evidence
in a judicial proceeding and that such circumstance may
cause any person who in such proceeding is to form an
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opinion upon the
702
evidence to entertain an erroneous opinion touching any
point material to the result of such proceeding is said
"to fabricate false evidence."
The effect of the allegations in the complaint
preferred by the complainant is that the petitioner has
caused this will to come into existence intending that
such will may cause the Judge before whom the suit is
filed to form an opinion that the will is a genuine one
and, therefore, his minor daughter is entitled to the
property. The allegation, therefore, in the complaint
will undoubtedly fall under s. 192, I.P.C. It will,
therefore, amount to an offence under s. 193, I.P.C.,
i.e. fabricating false evidence for the purpose of
being used in the judicial proceeding. There is no
doubt that the facts disclosed will also amount to an
offence under ss. 467 and 471 I.P.C. For prosecuting
this petitioner for an offence under ss. 467 and 471, a
complaint by the court may not be necessary as under s.
195(1)(c), Criminal P.C. a complaint may be made only
when it is committed by a party to any proceeding in
any court.
Mr. Jayarama Aiyar does not give up his contention
that the petitioner, though he appears only a guardian
of the minor girl, is still a party to the proceeding.
But it is unnecessary to go into the question at the
present moment and I reserve my opinion on the question
whether the guardian can be a party to a proceeding or
not, as this case can be disposed of on the other
point, viz., that when the allegations amount to an
offence under s. 193, I.P.C., a complaint of court is
necessary under s. 195(1)(b), Criminal P.C. and this
cannot be evaded by prosecuting the accused for an
offence for which a complaint of court is not
necessary.
We agree with the view expressed by the learned Judge
and hold that in cases where in the course of the same
transaction an offence for which no complaint by a court is
necessary under s. 195(1)(b) of the Code of Criminal
Procedure and an offence for which a complaint of a court is
necessary under that sub-section, are committed, it is not
possible to split up and hold that the prosecution of the
accused for the offences not mentioned in s. 195(1)(b) of
the Code of Criminal Procedure should be upheld.
However, it is not possible to agree with the learned
Judges of the High Court that the complaint in this case
given by the private individual Narsappa Eliger, P.W. 3
against Hemareddy alias Vemareddy for the offence under s.
467 read with s. 114 I.P.C. is not cognizable and
703
that s. 195(1)(b) of the Criminal Procedure Code is
attracted so far as Hemareddy alias Vemareddy is concerned.
The document forged by Pyatal Bhimakka, A-2 is a sale deed
dated 10-11-70. The suit for redemption of the mortgage was
filed by the complainant Narsappa Eliger, P.W. 3 on 17-11-
70. He filed the complaint before the Police on 24-11-70 and
before the court subsequently on 15-12-70. It is not
disputed that the forged sale deed dated 10-11-70 was not
produced in the suit filed by the complainant for redemption
of the mortgage. Mr. P. Ram Reddy, learned counsel appearing
for A-1, who assisted the court as Amicus Curiae for Pyatal
Bhimakka, A-2, invited our attention to the decision in re.
Vasudeo Ramchandra Joshi and submitted that the complaint
should have been filed by the court in which the suit for
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redemption of the mortgage was filed by the complainant
Narsappa Eliger in view of the provisions of s. 195(1)(b) of
the Code of Criminal Procedure and that as the complaint was
filed directly by the private individual, the prosecution of
Hemareddy alias Vemareddy for offences under s. 467 read
with s. 114 I.P.C. and s. 193 I.P.C. is bad. In that
decision reference has been made to the decisions of the
Bombay High Court in (1912) 14 Bombay Law Reporter 362 and
715. In that case there was a proceeding before the
Magistrate at Bhusaval against one Vana Khusal in respect of
the charge under s. 401 I.P.C. An application was made for
bail on behalf of that person by Vasudeo Ramachandra Joshi,
the petitioner before the High Court, but that application
was refused on April 1, 1922. The statements of three
witnesses were recorded under s. 164, Criminal Procedure
Code on April 18, 1922 from which it appeared that on April
10, 1922 those three witnesses had an interview with the
Pleader Vasudeo Ramachandra Joshi and he had instigated them
to give false evidence. On April 15, 1922 another case
against Vasudeo Ramachandra Joshi in respect of a dacoity
was sent up to the Magistrate. The case of the prosecution
was that in connection with that case of dacoity the alleged
instigation by the Pleader to give false evidence was made.
Those witnesses were examined before the Magistrate on June
2, 1922 in the dacoity case, and on June 7, 1922 a complaint
was filed by the Police against Vasudeo Ramachandra Joshi,
charging him with having abetted the giving of false
evidence. The learned Judges of the Bombay High Court who
heard the Civil Revision Case have observed :
"On behalf of the Crown it is urged that no
sanction is necessary because at the date of alleged
abetment no proceeding in relation to which the offence
is said to have been committed, was pending. It is
contended that the offence
704
had no relation to the proceedings pending on April 10
and that the proceedings to which it related, were sent
up to the Magistrate on April 19 and were not pending
at the time.
It is quite clear, however, from the very nature
of the offence alleged against the present petitioner
that if the offence was committed, it was committed in
relation to the proceeding in which those three persons
were to be examined as witnesses, and it is difficult
to understand how it could be said that the present
proceedings against the petitioner could go on without
the sanction of the Court before which these
proceedings are pending at present, and in relation to
which the offence is said to have been committed. I
assume, without deciding that the offence alleged
against the petitioner related to the Budhgaon dacoity
case and not to the case under s. 401, Indian Penal
Code, then actually pending even then the offence
related to proceedings which were clearly under
contemplation then and which were sent up to the
Magistrate on April 15. The expression used in s.
195(1) (b) is wide enough to cover such a proceeding
and the decisions of this Court in re Khanderao (1912)
14 Bombay L.R. 362 and in re Mahadev Yadneshwar (1912)
14 Bombay L.W. 715, support that conclusion. I am
unable to follow the reasoning adopted by the learned
Magistrate in holding that no sanction is necessary.
We, therefore, quash the present proceedings, without
prejudice to any proceeding that may be taken after
obtaining the necessary sanction.
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I may also point out that the prosecution of a
pleader defending an accused person while that
proceeding is pending, and before the evidence of the
witnesses who are said to have been instigated to give
false evidence has been appreciated by the Court, is
inadvisable. If such a prosecution is to be started it
ought to be started after the principal proceeding, in
relation to which the offence is said to have been
committed, has terminated."
We are of the opinion that it is not possible to agree
with the view of the learned Judges expressed in that case
that even when the offence of instigating the witnesses to
give false evidence was committed in relation to a
proceeding which was not actually pending in the court but
was only under contemplation the provisions of s. 195(1) (b)
of the Code of Criminal Procedure would be attracted.
705
The decisions in 1912 (14) Bombay Law Report 362 and
715 would not apply to the facts of the present case for
whereas in those cases the false evidence had been actually
put in evidence in the present case, as already stated, the
forged sale deed dated 10-11-70 was not at all tendered by
Hemareddy alias Vemareddy in the redemption suit filed by
the complainant Narsappa Eliger on 17-11-70 at any stage of
the proceedings in that suit. In the first of these two
decisions-re. Khanderao Yeshwant the petitioner before the
Bombay High Court, a Policeman, was present in a village
Dhanchi on 20-2-1911 in relation to work about census and on
that day a panchnama was filed in that village in regard to
an offence alleged to have been committed by a certain
Talukdar under the Arms Act. The investigation into the
alleged offence was not made by the petitioner Police
constable but by the village constable Shamserkhan who sent
up the case to the Sub-Inspector by whom in turn it was
committed to a Magistrate. In the course of trying the
alleged offence the Magistrate found that certain recitals
in the panchnama were false. The Talukdar was discharged as
the Magistrate came to the conclusion that the charge
imputed to him was false. In that view he issued a notice to
the village constable Shamserkhan as to why sanction for
prosecution should not be granted under s. 195 Crl. P.C.
After hearing Shamserkhan the Magistrate issued notice
against the Police Constable and on 8-9-1911 directed the
prosecution of the Police Constable under s. 211 I.P.C. Thus
it is seen that the panchnama containing false recitals
prepared by the Police Constable was actually used in a
criminal proceeding against the Talukdar who had been
implicated as a culprit in the panchnama. In the second case
re Mahadev Yadneshwar Joshi, Mahadev and five others were
being prosecuted for offences under s. 193 read with s. 109
I.P.C.-in that they were alleged to have abetted the making
of a false statement during the police investigation in a
theft case. The theft case was subsequently tried by a
Magistrate who convicted the accused. The appeal filed
against the conviction by the Magistrate was unsuccessful.
During the trial the accused raised an objection that before
they could be prosecuted, sanction of the competent Court
should have been obtained. The Magistrate over-ruled the
objection. The learned Judges of the Bombay High Court held
that sanction was necessary and that the offences cannot be
tried in the absence of a complaint by a court before which
the evidence, which is now said to be fabricated, was
adduced. In that case also the fabricated evidence had been
actually used in a criminal proceeding and s. 195 (1) (b) of
the Code of Criminal Procedure was therefore attracted. But
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in the present case, as stated earlier, the fabricated sale
deed dated 10-11-70 had not
706
been put in evidence at any stage of the suit for redemption
filed by the complainant Narsappa Eliger in the Civil Court
on 17-11-1970.
Mr. N. Nettar, appearing for the State, invited our
attention to the decision of this Court in Patel Laljibhai
Somabhai v. The State of Gujarat. In that case the appellant
before this Court had filed a suit for recovery of a certain
amount on the basis of a forged cheque. A private complaint
was filed in the Court of a Judicial Magistrate against the
appellant and another person under ss. 467 and 471 I.P.C.
The Magistrate prima facie found on the evidence that the
appellant had fraudulently used in the Civil Court a forged
document and he committed the appellant to Sessions for
trial. The appellant raised an objection that under s. 195
(1) (c) of the Code of Criminal Procedure no cognizance of
the offence could be taken on a private complaint. The High
Court upheld the committal order. But this Court held on the
scope and effect of s. 195 (1)(c) and its applicability to
cases where a forged document had been produced as evidence
in a judicial proceedings by a party thereto and the
prosecution of that party sought for offences under ss. 467
and 471 I.P.C. that the words "to have been committed by a
party to any proceeding in any court" according to s. 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. This Court has observed:
"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. Broadly 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
707
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 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. 195(1)(c).
...........................................
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...........................................
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
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 preventing 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 embark-
708
ing 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 party. 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) Crl. 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
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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 Crl. 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 or
making a complaint."
We are bound by the view expressed in this decision
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.
In the decision in Raghunath and Others v. State of U.P. and
Others it is observed :
709
"In this Court the main contention raised on behalf of
the appellants by their learned counsel was that even
prosecution for an offence under Section 465 I.P.C.
requires complaint by the revenue court concerned as
such an offence is covered by Section 195(1)(c),
Cr.P.C. This contention is difficult to accept. This
Court has recently in Patel Laljibhai Somabhai v. The
State of Gujarat [1971] 2 SCC 376 after considering the
conflict of judicial opinion on this point, approved
the view taken in Kushal Pal Singh case (supra).
According to that decision 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. The
appellants’ learned counsel tried to distinguish the
decision of the Allahabad High Court in Kushal Pal
Singh case (supra) by pointing out that in that case
the offence of forgery was alleged to have been
committed in 1898, more than 25 years before it was
produced or given in evidence in court and it was for
this reason that Section 195(1)(c), Cr.P.C. was held to
be inapplicable. In our view, the duration of time
between the date of forgery and the production or
giving in evidence of the forged document in court is
not a governing factor. The principle laid down in
Sombabhai’s case (supra) was not founded on any such
consideration. Reference to such delay was made in that
decision in another context. After taking notice of the
fact that Section 195(1)(c), Cr. P.C. deprives a
private aggrieved party of the general right recognized
by Section 190 Cr.P.C. of directly initiating criminal
proceedings this Court observed in the case:
"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 be
more appropriate to adopt in strict construction
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of confining the prohibition contained in Section
195(1)(c) only to those cases in which the
710
offences specified therein were committed by a
party to the proceeding in the character as such
party".
In the present case, the offence of abetment of forgery
was complete when the forged sale deed dated 10-11-70 was
fabricated and registered. But no offence under s. 193
I.P.C. falling within the scope of s. 195(1)(b) of Cr.P.C.
could be stated to have been committed by Hemareddy alias
Vemareddy as the forged sale deed was not at all put in
evidence at any stage in the redemption suit filed by the
complainant on 17-11-70. Section 195(1)(b) of the Code of
Criminal Procedure reads:
"(195) (1) No Court shall take cognizance,
(a)..................................
(b) (i) of any offence punishable under any of the
following sections of the Indian Penal Code, 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
........................
.................................................."
It could be seen that the section requires that the
offence under s. 193 I.P.C. should be alleged to have been
committed in or in relation to, any proceeding in any court.
Since the forged sale deed was not produced in evidence in
any stage of the redemption suit, s. 195(1) (b) of the Code
of Criminal Procedure is not attracted. Therefore, the
Magistrate who committed the accused to the Sessions, could
not have taken cognizance of any offence under s. 193 I.P.C.
so far as Hemareddy alias Vemareddy (A-1) is concerned. The
complaint could have been taken on file only for an offence
punishable under s. 467 read with s. 114 I.P.C. so far as
that accused is concerned. It would follow that no complaint
by the court for prosecuting Hemareddy alias Vemareddy for
the offence under s. 467 read with s. 114 I.P.C. is
required, and he could be validly convicted for that offence
on the complaint given by the private individual. We are,
therefore, of the opinion that learned Judges of the High
Court were not right in law in holding that the complaint in
this case was totally not maintainable against Hemareddy
alias Vemareddy in view of the provisions of s. 195(1) (b)
of the Code of Criminal Procedure, and in not only
acquitting Hemareddy alias Vemareddy of the offence under s.
467 read with s. 114 I.P.C. but also in finding that he has
committed an offence punishable under s. 193 I.P.C. We
accordingly confirm the judgment of the
711
High Court as regards modification of the sentence awarded
to Pyatal Bhimakka (A-2) and the acquittal of Hemareddy
alias Vemareddy under s. 193 I.P.C. and dismiss the appeal
to that extent but allow the appeal in part so far as
Hemareddy alias Vemareddy is concerned and find him guilty
under s. 467 read with s. 114 I.P.C. and convict him and
sentence him to undergo R.I. for one year and also pay a
fine of Rs. 500/- and in default to undergo R.I. for three
months.
N.V.K. Appeal dismissed.
712