# Ghan Shayam v. State of U.P

- **Citation:** (2010) 2 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-27
- **Case number:** Criminal Application No. 2521 of 2010
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghan-shayam-v-state-of-u-p-41592
- **Pages:** 3

## Headnote

Code of Criminal Procedure Section 482Rejection of application v/s 156(3)
Cr.P.C. on ground of bar of section 195
(i) (b) (iii) Cr.P.C.-without consideration
of
fact
whether
forgery
committed
before filling such document before High
Court on after filling the same-Forgery
committed before filling the documentheld-No application of bar of section 195
(i) (b) (iii)-order passed by Court below
Quashed with necessary directions

Held: Para 7and 8

As per the allegations made in the
petition moved by the applicant before
the Magistrate, the documents which
were alleged to be forged were filed in
the
proceeding
of
this
Court
after
committing the forgery outside the court
and there was no allegation that the
forgery
was
committed
in
such
documents after their production in the
concerned judicial proceeding of this
Court.

Neither the Magistrate nor the Sessions
Judge was justified in rejecting the
applicant's
application under section
156(3) of the Code on the ground of bar
of section 195(1)(b)(ii) of the Code.
Case law discussed
2005 U.P.Cr. R. Page 500 S.C., AIR 2005 SC
2119

## Text

466 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.05.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Application No. 2521 of 2010
Case: U/S 482/378/407

Ganga Ram Pandey

 ...Petitioner
Versus
State of U.P.

 Respondent

Counsel for the Petitioner:
Amit Tripathi

Counsel for the Respondent:
G.A.

Code of Criminal Procedure Section 482Rejection of application v/s 156(3)
Cr.P.C. on ground of bar of section 195
(i) (b) (iii) Cr.P.C.-without consideration
of
fact
whether
forgery
committed
before filling such document before High
Court on after filling the same-Forgery
committed before filling the documentheld-No application of bar of section 195
(i) (b) (iii)-order passed by Court below
Quashed with necessary directions

Held: Para 7and 8

As per the allegations made in the
petition moved by the applicant before
the Magistrate, the documents which
were alleged to be forged were filed in
the
proceeding
of
this
Court
after
committing the forgery outside the court
and there was no allegation that the
forgery
was
committed
in
such
documents after their production in the
concerned judicial proceeding of this
Court.

Neither the Magistrate nor the Sessions
Judge was justified in rejecting the
applicant's
application under section
156(3) of the Code on the ground of bar
of section 195(1)(b)(ii) of the Code.
Case law discussed
2005 U.P.Cr. R. Page 500 S.C., AIR 2005 SC
2119

(Delivered by Hon'bleShri Kant Tripathi, J.)

1. Heard learned counsel for the
applicant and the learned counsel for the
respondent no. 3 and the learned AGA
and perused the record.

2. It appears that the applicant
moved an application under section
156(3) of the Code of Criminal Procedure
(in short "the Code") before the II-Judicial
Magistrate, Faizabad vide Misc. Case No.
367 of 2009 (Ganga Ram Pandey v Vijay
Kumar Shukla). The learned Magistrate
rejected the application on 03.07.2009 on
the ground that the forged documents
were produced in the High Court,
therefore, only the High Court had power
to take cognizance. The learned Sessions
Judge upheld the Magistrate's order vide
his order dated 25.07.2009 in Criminal
Revision No. 200 of 2009 relying on the
decision of K. Vengadachalam v KC
Palanisamy & others [2005 U.P.Cr. R.
Page 500 S.C.) and held that the learned
Magistrate had passed a justified order.

3. It may not be out of context to
mention that there was no question of
invoking the provisions of Section 195 of
the Code at the stage of passing an order
under section 156 (3) of the Code or at the
stage of investigation. The provisions is
attracted only when the Magistrate is
required to take cognizance of the
offence/offences under section 190 of the
Code.

4. Section 195 (1)(b)(ii) of the Code
has specifically provided that any offence
2 All] Ghan Shayam V. State of U.P.
467
described under section 463 or punishable
under sections 471, 475 or 476 IPC or any
criminal conspiracy to commit or attempt
to commit or abetment of, any such
offence is cognizable only on the
complaint in writing of the concerned
court or on the complaint of such officer
of the court as may be authorized by the
court in writing in this behalf or on the
complaint of such other court to which the
court concerned is subordinate, if such
offence is alleged to have been committed
in respect of a document produced or
given in evidence in a proceeding in any
court. Therefore, section 195 (1)(b)(ii) of
the Code is not attracted in regard to a
document alleged have been forged prior
to its filing in the court. Such provision is
attracted when any forgery is committed
after filing of the document in the court in
a judicial proceeding.

5. A constitution Bench of the Apex
Court in the case of Iqbal Singh Marwah
& another v Meenakshi Marwah &
another [AIR 2005 SC 2119] has very
clearly held that section 195 (1)(b)(ii) of
the Code would be attracted only when
the offences enumerated in the said
provision have been committed with
respect to a document after it has been
produced or given in evidence in a
proceeding in any Court i.e. during the
time when the document was in custodia
legis.

6. It may be pertinent to mention
that the Sessions Judge, Faizabad, after
placing reliance on K. Vengadachalam's
case (supra) himself observed that where
the forgery is alleged to have taken place
in respect of the document produced in
evidence in any court, the bar of section
195(1)(b)(ii) of the Code is not attracted
but failed to appreciate the controversy
involved in the case in its correct
perspective and also failed to apply the
said settled principles to the facts of this
case. The proper course for the Sessions
Judge was to see as to what were the
allegations in the complaint and whether
the forgery in regard to the documents
filed in the High Court was committed
prior to, or after, their filing in the Court.
If the forgery had been committed before
filing the documents in the High Court,
there was no question of applying the bar
of section 195(1)(b)(ii) of the Code.

7. As per the allegations made in the
petition moved by the applicant before the
Magistrate, the documents which were
alleged to be forged were filed in the
proceeding of this Court after committing
the forgery outside the court and there
was no allegation that the forgery was
committed in such documents after their
production in the concerned judicial
proceeding of this Court.

8. Neither the Magistrate nor the
Sessions Judge was justified in rejecting
the applicant's application under section
156(3) of the Code on the ground of bar
of section 195(1)(b)(ii) of the Code.

9. For the reasons discussed above,
the petition is allowed. The order dated
03.07.2009 passed by the II-Judicial
Magistrate, Faizabad as well the order
dated 25.07.2009 passed by the Sessions
Judge, Faizabad are quashed. The learned
Judicial
Magistrate
is
directed
to
reconsider the applicant's application
under section 156(3) of the Code and pass
appropriate order in accordance with law.
---------
468 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2010

BEFORE
THE HON'BLE A.P.SAHI, J.

Civil Misc. Writ Petition No. 4950 of 1988

Krishnapal and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri A.N. Bhargava

Counsel for the Respondents:
C.S.C.

U.P. Imposition of ceiling on Land
Holding Act, Section 10 (2)-Notice to
declare
Surplus
land
issued-placing
reliance on report of lokpal-without
varify the actual date of death of original
tenure
holder-Sadashiv
and
Raghunandan-Petitioner 7 in number are
son of Sadashiv jointly possessed less
than 18 acre land-as per entry of Kitaab
Register, date of death of Sadashiv is
25.11.1975 and Raghunandan died later
on 12.02.1976 entries of family Register
admissible
in
evidence
u/s
74
of
evidence Act-during cross examination
Lekhpal admitted during long term of
posting of 7 years in villages in question
never seen both of them alive-burden of
proof lies upon state-who failed to
discharge
the
same-held-orders
declaring surplus land, as well as of the
appellants authority Quashed

Held: Para 21 & 24

The entire case of the State is, therefore,
based on the alleged information of Mr.
S.L. Tiwari and on the two receipts dated
19.1.1976
and
18.2.1986.
The
said
receipts do not establish the date of
death of Sadashiv or Raghu Nandan. The
manner in which a deposit confers a
right of bhumidhari tenure under the
provisions of the then existing Section
134 to 137 of the U.P.Z.A. & L.R. Act, has
been dealt with in the decision of the
Apex Court in the case of Deo Nandan
and another Vs. Ram Saran and others,
reported in (2000) 3 SCC 440. The said
proceedings are a certification of the
change of tenure and they do not relate
to the date of death or the date of actual
physical presence of the concerned
person. The reliance placed on the said
receipts, therefore, do not conclude or
establish the exact date of death of the
tenure holders. The Prescribed Authority
as well as the Commissioner both
committed an error by placing heavy
reliance on the said receipts and by
discarding
a
documentary
evidence
which was substantial proof, namely the
family register extract, indicating the
exact date of birth corroborated by the
mutation order in their favour. An
evidence which was established and
proved in law could not have been
discarded on the strength of a mere
information, the source whereof was
neither known nor proved or also on the
basis of receipts of deposit which did not
indicate the date of death. The said
evidence of the State, therefore, having
failed to establish the date of death of
Sadashiv
and
Raghu
Nandan,
the
issuance of the notices on the mere
information of Mr. S.L. Tiwari was
absolutely
erroneous
and
remains
uncorroborated.

The Prescribed Authority has failed to
take notice of the statement of Madhav
Prasad, Lekhpal which itself narrates
that he had not made any inquiry prior to
the preparation of the Ceiling Forms and,
therefore, in the absence of any such
prior inquiry there was no occasion for
calling upon the petitioners to file any
objections. The initiation of the notice
itself was absolutely unfounded and
based on no evidence in relation to the
date of death of Sadashiv.
Case law discussed
(2000) 3 SCC 440