Full Judgment Text
Crl.A. @ S.L.P.(Crl.)No.8077 of 08
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1640 OF 2009
[Arising out of S.L.P.(Crl.)No.8077 of 2008]
Mahesh Chand Sharma ....Appellant
Versus
State of U.P. & Ors. ....Respondents
J U D G M E N T
Deepak Verma, J.
1. Leave granted.
2. This appeal arises out of Judgment and order dated
9.5.2008 passed by learned Single Judge of High Court of
Judicature at Allahabad in Criminal Misc. Application
No.26653 of 2007 wherein and whereby a petition filed by
respondent Nos.2, 3 and 4, viz., Panna Lal, Ram Babu and
Rajkumar respectively under Section 482 of the Code of
Criminal Procedure (for short, 'Cr.P.C.') has been
allowed and the Criminal case No.1245/IX of 2007 titled
State Vs. Panna Lal and Ors. registered against them
under Sections 420, 467, 468, 471 and 120-B of the Indian
Penal Code (for short, 'IPC') on the file of Additional
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Chief Judicial Magistrate-I, Mathura and the order dated
24.9.2007 whereby and whereunder the Presiding Officer of
the Court took cognizance against the accused, respondent
nos.2 to 4 herein, have been quashed. Appellant, feeling
aggrieved by the said order of quashment is before us
challenging the same on variety of grounds.
3. We have accordingly heard Mr. D.K. Goswami, learned
counsel for the appellant and Mr. R. Dash, learned senior
counsel for respondent No.1-State. Despite service of
notices none appeared before us for the accused-respondent
Nos.2 to 4.
4. Facts, shorn of unnecessary details, are mentioned
hereinbelow:
5. The appellant filed a complaint purportedly under
Section 156(3) of the Cr.P.C. on 13.10.2004 before the
Chief Judicial Magistrate, Mathura. The main allegation
in the said complaint is that he had purchased land
admeasuring 0.38 decimal from Mahesh Chand, S/o Shri Jagan
Prasad vide registered sale deed dated 6.10.1986.
Pursuant to the execution of said sale deed in favour of
the appellant-Mahesh Chand Sharma, he was handed over
possession of the same by the vendor and since then he
continues to be in possession thereof.
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6. On 23.9.1996 appellant, with an intention to protect
the property, started constructing boundary wall, which
was objected to by Panna Lal, Ram Babu and Rajkumar,
respondent Nos.2 to 4 herein. They contended that the
land in question, alleged to have been purchased by the
appellant is recorded in their names and they were ready
to fight on this issue.
7. Thereafter, appellant Mahesh Chand Sharma and his
vendor Mahesh Chand both went to Tehsildar's Court and
made inquiries about case no.293/14 A.T and came to know
that the said accused in collusion with Area Lekhpal,
Prahlad Singh got their names mutated on the basis of
report dated 18.8.1992 said to have been prepared under
Section 22 of the Land Record Manual.
8. In the said report, Area Lekhpal reported that
accused Panna Lal, Ram Babu and Rajkumar, sons of Parsadi
are the only heirs of Jagan Prasad and Devi Prasad both
sons of Bidha Ram. It was falsely stated that Jagan
Prasad had no heir, while the vendor of the appellant
Mahesh Chand is the only son of Late Jagan Prasad and is
still alive and he is also the legal heir of his real
uncle Devi Prasad who had no issues.
9. It appears that the Area Lekhpal had given totally
untrue statement and by showing an alive person Mahesh
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Chand S/o Jagan Prasad, appellant's vendor as dead had got
the said names of the accused mutated. According to
appellant, they had thereby committed the offences
punishable under Sections 420, 467, 468, 471 and 120B of
the IPC.
10. On the strength of these allegations, an order
under Section 156(3), Cr.P.C. was passed. The said
application/complaint of the appellant was allowed and
police registered the FIR and started investigation.
11. Even though learned Single Judge has given the
details of the family tree of the respondents and Mahesh
Chand, vendor of the appellant but to decide the said
case, it is not necessary to dwell on it further.
Suffice it to say that Mahesh Chand is the only surviving
lineage on his side of the family. Therefore, Mahesh Chand
being the only person alive, inherited the entire
property of Bidha Ram. Being the lawful owner of the
above mentioned property, he executed the sale deed on
6.10.1986 as mentioned hereinabove in favour of appellant.
12. As would be revealed from the facts of the case, it
was Area Lekhpal who, in furtherance of his evil
intentions, gave a false statement with an object to help
the accused asserting that the last descendant of Bidha
Ram, i.e., Mahesh Chand, vendor of the appellant had
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already died. On the strength of this statement having
been made by Area Lekhpal, the names of the respondent
Nos.2 to 4 were mutated in their favour by the Court of
Tehsildar on 9.10.1992.
13. Accused Respondent Nos.2 to 4 asserted that disputed
property was mutated in their names on the basis of an
unregistered Will dated 14.07.1974 said to have been
executed by late Jagan Prasad, father of Mahesh Chand,
ignoring his only son, which is highly ridiculous and
certainly an afterthought.
14. The appellant, on coming to know that names of
accused have been mutated on the property of which he is
the lawful owner, having purchased the same from its
previous owner, Mahesh Chand, S/o Jagan Prasad, thereby
moved an application before SDM, Mathura, to set aside the
mutation order dated 9.10.1992, which application
ultimately came to be allowed.
15. Feeling aggrieved by the said order passed in favour
of the appellant, accused-respondents filed an appeal
before the Commissioner of Agra Division, but it met the
fate of dismissal. The matter thus came to an end as far
as mutation proceedings were concerned.
16. Looking to the adamant and offensive attitude of the
accused, the appellant was constrained to move a
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complaint under Section 156(3) of the CrPC before the
learned Magistrate, Mathura who directed to investigate
the matter and register a case against the accused-
respondents. An FIR was registered as Crime No.51/2004.
After investigation, the investigating officer submitted
the final report on 15.12.2004. The appellant, feeling
aggrieved by the said final report of the police, filed a
Protest Petition in the Court of A.C.J.M., Mathura on
19.3.2005, who treated it to be a complaint and fixed the
case for recording of the statement of the appellant.
17. Being aggrieved by the said order passed by ACJM,
Mathura, the appellant filed Criminal Revision No.335/2005
before Additional Sessions Judge, Mathura, which came to
be admitted for hearing on 15.6.2005. During the pendency
of this Revision, the appellant's protest petition dated
19.3.2005 was dismissed in default by the learned
Magistrate. On coming to know about the dismissal of the
said protest petition, appellant filed another Criminal
Revision No. 526/2005 before the Additional Sessions
Judge, Mathura.
18. The Additional Sessions Judge allowed both the
Revisions vide its judgment dated 31.10.2005 and set aside
the orders of the learned Magistrate dated 7.6.2005
treating the protest petition to be a complaint as also
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the order of dismissal of the said petition.
19. Pursuant to the directions of the learned Addl.
Sessions Judge, Mathura, the Magistrate once again heard
the appellant and pursuant thereto, directions were
issued to the police to further investigate the matter
rejecting the final report of the police dated 15.12.2004.
Thereafter, police completed the investigation and
Investigating Officer submitted the charge sheet on
18.9.2007 in the Court of Magistrate, Mathura for
commission of alleged offences under Sections 420, 467,
468, 471 and 120B of the IPC.
20. On the strength of the charge sheet, Criminal Case
No.1245/IX of 2007 as mentioned hereinabove was
registered against the respondents, which took cognizance
against respondent Nos.2 to 4 vide order dated
24.9.2007.
21. The accused moved the High Court by filing a
petition under Section 482, Cr.P.C. as mentioned
hereinabove with a prayer for quashing the charge sheet
and taking cognizance thereof. The said petition having
been allowed, Mahesh Chand Sharma S/o Ganga Charan Sharma
is before us in this appeal.
22. We have critically gone through the impugned order
passed by learned Single Judge and find that there has
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been total non-application of law with regard to provision
contained in Section 195 of Cr.P.C. The relevant portion
of the order passed by the learned Single Judge is
reproduced hereinbelow :
“Thus, it is clear from the aforesaid
Section that the complainant could move an
application in this regard before the Court
of Tehsildar and that Court after making
necessary enquiry could pass an order for
lodging a complaint against the accused
persons and that complaint could be sent to
the Court of Magistrate having jurisdiction
to try the offence. The above procedure,
which was the right and correct procedure in
present case, was not followed but an
application under Section 156 (3) Cr.P.C.
was moved for police investigation, which
was barred in view of the provisions of
Section 195 Cr.P.C.
Thus, the entire proceedings taken on
the basis of the orders passed on the
application under section 156(3) Cr.P.C. and
on the charge sheet submitted in compliance
of the orders on that application are
without jurisdiction, and the learned
Magistrate erred in law by taking cognizance
on that charge sheet. Hence, the present
application under section 482 Cr.P.C.
deserves to be allowed and the proceedings
of the case deserves to be quashed in view
of the bar of Section 195 Cr. P.C. The
complainant opposite party No.2 shall,
however, be at liberty to move an
application against the accused applicants
under Section 340 Cr.P.C. before the
concerned Court in accordance with the
provisions of law.
The application under section 482
Cr.P.C. is, therefore, allowed and the
charge sheet submitted in Criminal Case
No.1245/IX of 2007 State Vs. Panna Lal and
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others and the order of the Magistrate dated
24.9.2007 taking cognizance thereon are set
aside. However, it will be open to the
complainant opposite party No. 2 to move an
application before the concerned court for
taking action against the accused persons in
accordance with the provisions of section
340 Cr.P.C.”
23. To appreciate the facts and apply the
law correctly, it is necessary to go through
the relevant provisions and thus we
reproduce Section 195(1)(b)(ii):
“195. Prosecution for contempt of
lawful authority of public servants, for
offences against public justice and for
offences relating to documents given in
evidence -
(1) No Court shall take cognizance-
(a) ... ... ...
(b) (i) ... ... ...
(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
(iii) ... ... ...”
24. While dealing with the provision
contained in Section 195 of the Cr.P.C. this
Court in a celebrated judgment reported in
(1998) 2 SCC 493 titled Sachida Nand Singh &
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Anr. v. State of Bihar & Anr. has held as
under :-
“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 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?
7. Even if the clause is capable of two
interpretations we are inclined to choose
the narrower interpretation for obvious
reasons. Section 190 of the Code empowers
“any magistrate of the first class” to take
cognizance of “any offence” upon receiving a
complaint, or police report or information
or upon his own knowledge. Section 195
restricts such general powers of the
magistrate, and the general right of a
person to move the court with a complaint is
to that extent curtailed. It is a well-
recognized canon of interpretation that
provision curbing the general jurisdiction
of the court must normally receive strict
interpretation unless the statute or the
context requires otherwise (Abdul Waheed
Khan v. Bhawani AIR 1966 SC 1718: 1966 (3)
SCR 617)”
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25. Similar issue again came up for consideration before
the Constitution Bench of this Court in yet another
judgment in Iqbal Singh Marwah & Anr. v. Meenakshi Marwah
& Anr. (2005) 4 SCC 370 and held as under :
“7. On a plain reading clause (b)(ii) of
sub-section (1) of Section 195 is capable of
two interpretations. One possible
interpretations is that when an offence
described in Section 463 or punishable under
Section 471, Section 475 or Section 476 IPC
is alleged to have been committed in respect
of a document which is subsequently produced
or given in evidence in a proceeding in any
court, a complaint by the court would be
necessary. The other possible
interpretation is that when a document has
been produced or given in evidence in a
proceeding in any court and thereafter an
offence described as aforesaid is committed
in respect thereof, a complaint by the court
would be necessary. On this interpretation
if the offence as described in the section
is committed prior to production or giving
in evidence of the document in court, no
complaint by court would be necessary and a
private complaint would be maintainable.
The question which requires consideration is
which of the two interpretations should be
accepted having regard to the scheme of the
Act and object sought to be achieved.
8. Dr. A.M. Singhvi, learned Senior Counsel
for the appellants, submitted that the
purpose of Section 195 is to bar private
prosecution where the cause of justice is
sought to be perverted leaving it to the
court itself to uphold its dignity and
prestige. If a very restricted
interpretation is given to Section 195
(1)(b)(ii)CrPC, as held in Sachida Nand
Singh v. State of Bihar (1998) 2 SCC 493 :
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1998 SCC (Cri.) 660 the protection afforded
by the provision will be virtually reduced
to a vanishing point, defeating the very
object of the enactment. The provision, it
is urged, does not completely bar the
prosecution of a person who has committed an
offence of the type described thereunder,
but introduces a safeguard in the sense that
he can be so prosecuted only on the
complaint of the court where the document
has been produced or given in evidence or of
some other court to which that court is
subordinate. Learned counsel has also
submitted that being a penal provision,
giving a restricted meaning as held in
Sachida Nand Singh would not be proper as a
person accused of having committed an
offence would be deprived of the protection
given to him by the legislature. He has
also submitted that on the aforesaid view
there is a possibility of conflicting
findings being recorded by the civil or
revenue court where the document has been
produced or given in evidence and that
recorded by the criminal court on the basis
of private complaint and therefore an effort
should be made to interpret the section in
the manner which avoids such a possibility.”
Finally while interpreting the provision of Section 195 of
the Cr.P.C. the Bench held as under in para 10 of the said
Judgment.
“10. The scheme of the statutory provision may
now be examined. Broadly, Section 195 Cr.P.C
deals with three distinct categories of
offences which have been described in clauses
( a ), ( b )( i ) and ( b )( ii ) and they relate to ( 1 )
contempt of lawful authority of public
servants, ( 2 ) offences against public justice,
and ( 3 ) offences relating to documents given
in evidence. Clause ( a ) deals with offences
punishable under Sections 172 to 188 IPC which
occur in Chapter X IPC and the heading of the
Chapter is — “Of Contempts of the Lawful
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Authority of Public Servants”. These are
offences which directly affect the functioning
of or discharge of lawful duties of a public
servant. Clause ( b )( i ) refers to offences in
Chapter XI IPC which is headed as — “ Of False
Evidence and Offences Against Public Justice ”.
The offences mentioned in this clause clearly
relate to giving or fabricating false evidence
or making a false declaration in any judicial
proceeding or before a court of justice or
before a public servant who is bound or
authorised by law to receive such declaration,
and also to some other offences which have a
direct correlation with the proceedings in a
court of justice (Sections 205 and 211 IPC).
This being the scheme of two provisions or
clauses of Section 195 viz. that the offence
should be such which has direct bearing or
affects the functioning or discharge of lawful
duties of a public servant or has a direct
correlation with the proceedings in a court of
justice, the expression “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” occurring in clause
( b )( ii ) should normally mean commission of
such an offence after the document has
actually been produced or given in evidence in
the court. The situation or contingency where
an offence as enumerated in this clause has
already been committed earlier and later on
the document is produced or is given in
evidence in court, does not appear to be in
tune with clauses ( a )( i ) and ( b )( i ) and
consequently with the scheme of Section 195
Cr.P.C. This indicates that clause ( b )( ii )
contemplates a situation where the offences
enumerated therein are committed with respect
to a document subsequent to its production or
giving in evidence in a proceeding in any
court.”
26. The ratio decidendi of the aforesaid two cases lead
us to a conclusion that the order passed by the learned
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Single Judge cannot be sustained in law.
27. Learned Single Judge proceeded on absolutely wrong
facts and incorrect principles of law have been applied.
28. Learned Single Judge completely lost sight of the
fact that the offence committed by accused in collusion
with Area Lekhpal was not in relation to court
proceedings. It was in any case behind the back of the
appellant and as soon as he came to know with regard to
the illegal designs of the accused he lodged a complaint
under Section 156(3) of the Cr.P.C.
29. The law on the point is too well settled in the light
of the above said two judgments of this Court that Section
195 (1)(b)(ii) of the Cr.P.C. contemplates a situation
where offences enumerated therein are committed with
respect to a document subsequent to its production or
giving in evidence in a proceeding in any Court.
30. The learned Single Judge further committed a gross
error in resorting to Section 340 of the Cr.P.C. as
provisions of the said Section can be invoked only when it
is established that offence of forgery had already been
committed. In any case, accused had miserably failed for
grant of any relief under Section 482 of the Cr.P.C. The
limit of exercising jurisdiction conferred on the Court
under Section 482 of the Cr.P.C is well defined and by no
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stretch of imagination, it could be said that petition
filed by accused under Section 482 of the Cr.P.C had
fulfilled the requirement as contemplated in this Section.
31. Looking to the facts from any angle, we are of the
considered opinion that the impugned order cannot be
sustained. The same is accordingly hereby set aside and
quashed.
32. As a necessary consequence thereof, learned
Magistrate is directed to proceed with the Criminal
Complaint filed by appellant herein against the accused-
respondent nos.2, 3 and 4 in accordance with law and on
merits at an early date and endeavour would be made by him
to dispose of the same within a period of six months from
the date of appearance of the parties.
33. The appeal stands allowed.
.......................J.
[V.S. SIRPURKAR]
New Delhi. .......................J.
August 28, 2009. [DEEPAK VERMA]