# Ram Kishun Yadav v. State of U.P. and another

- **Citation:** (2013) 1 ILRA 363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-06
- **Case number:** Criminal Misc. Case No. 2657(482) of 2010
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishun-yadav-v-state-of-u-p-and-another-42499
- **Pages:** 8

## Headnote

Code of Criminal Procedure-Section 482-
Quashing of criminal proceeding -on
ground in proceeding for revision of map
under section 54 Land & Revenue Actthe Assistant Record Officer-is not Courthence
cognizence
taken
on
police
investigation
not
bad-provision
of
Section 195 not attracted during course
of inspection thumb impression of dead
person made by counsel-in absence of
entire material-matter remitted back for
reconsideration-whether case fall, under
section 195-Magistrate has power to
take
cognizance
apart
from
the
procedure under section 340 and 343
Cr.P.C.

Held: Para-28 & 29

(28) It is clear that if the case falls
within the ambit of either Section
195(1)(a)
or
195(1)(b),
cognizance
taken by Magistrate would be bad
because the same would be against the
procedure
established
by
law
as
contained
in
Section
195
readwith
Section 340 and 343 Cr.P.C.

(29) In view of the above facts and
circumstances of the case, this court is of
the firm view that matter should be sent
back to the Trial Court to give specific
finding with reasons on the basis of
material
available
on
police
diary
whether this case is covered under
section 195 Cr.P.C. or not ? In case, trial
court comes to the conclusion that case
does not falls within the ambit of section
195 Cr.P.C., only in that event, that court
shall proceed with the trial.

Case Law discussed:
2005(4)SCC,370; AIR 1998 SC 768; 11 SCC
251; AIR 1979 SC page 437; 1983 Cr.L.J;
AIR 1973 (SC)1100; AIR 1974 (SC)

## Text

1 All] Ram Kishun Yadav Vs. State of U.P. and another
363

21. For the purpose of U.P.
Zamindari Abolition and Land Reforms
Act, 1951 (hereinafter referred to as the
"Act, 1951") also so far as the meaning of
term 'holding' or 'land' is concerned, in
respect to land recorded as "Banjar", the
law as discussed above would apply
equally and, therefore, suit in question is
not barred by Section 331 of Act, 1951
and the Civil Court had jurisdiction to
take cognizance of suit in question and
decide the same. The Appellate Court has
rightly
taken
the
view
about
maintainability of suit in Civil Court, in
the judgment impugned in this writ
petition, and, I find no legal or otherwise
fault therein, warranting interference.

22. In view of above, I find no merit
in the writ petition. Dismissed. Interim
order, if any, stands vacated.
---------
 ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Misc. Case No. 2657(482) of
2010

Ram Kishun Yadav

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Shivesh Nath Dubey

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section 482-
Quashing of criminal proceeding -on
ground in proceeding for revision of map
under section 54 Land & Revenue Actthe Assistant Record Officer-is not Courthence
cognizence
taken
on
police
investigation
not
bad-provision
of
Section 195 not attracted during course
of inspection thumb impression of dead
person made by counsel-in absence of
entire material-matter remitted back for
reconsideration-whether case fall, under
section 195-Magistrate has power to
take
cognizance
apart
from
the
procedure under section 340 and 343
Cr.P.C.

Held: Para-28 & 29

(28) It is clear that if the case falls
within the ambit of either Section
195(1)(a)
or
195(1)(b),
cognizance
taken by Magistrate would be bad
because the same would be against the
procedure
established
by
law
as
contained
in
Section
195
readwith
Section 340 and 343 Cr.P.C.

(29) In view of the above facts and
circumstances of the case, this court is of
the firm view that matter should be sent
back to the Trial Court to give specific
finding with reasons on the basis of
material
available
on
police
diary
whether this case is covered under
section 195 Cr.P.C. or not ? In case, trial
court comes to the conclusion that case
does not falls within the ambit of section
195 Cr.P.C., only in that event, that court
shall proceed with the trial.

Case Law discussed:
2005(4)SCC,370; AIR 1998 SC 768; 11 SCC
251; AIR 1979 SC page 437; 1983 Cr.L.J;
AIR 1973 (SC)1100; AIR 1974 (SC)
(Delivered by Hon'ble Vishnu Chandra
Gupta, J)

(1) This Criminal Misc. Case under
section 482 Criminal Procedure Code
(for short 'Cr.P.C.') has been filed to
quash the proceeding of case No. 4934 of
2009, arising out of case crime no.
4234/08,
under
section
471/467/468/419/420 of Indian Penal
Code (for short 'I.P.C.'), P.S. - Kotwali
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Nagar, Distt. - Faizabad, pending in the
court
of
Chief
Judicial
Magistrate,
Faizabad.

(2) In this petition the cognizance
taken by the court in pursuance of the
police report has been challenged in the
light of Section 195 Cr.P.C. on the ground
that in this case forgery committed in
respect of a document produced in the
judicial
proceedings.
Therefore,
cognizance taken by the court on the basis
of police report would be void. Learned
counsel for the petitioner in support of his
contention relied upon the judgment of
the Apex Court passed in 2005 (4) SCC,
370, Iqbal Singh Marwah and Another
Vs. Meenakshi Marwah and Another.

(3) On the contrary learned AGA
submitted that case does not fall within
the ambit of Section 195 Cr.P.C. because
the forgery committed in respect of such
document which is not produced by either
party to the proceedings. On fact Iqbal
Singh Marwah's case (supra) will not
apply.

(4) In the light of the submissions
raised by the counsels for the parties, the
facts of this case required to be scanned.

(5) The First Information Report (for
short 'F.I.R.') has been lodged by one
Chandrika Prasad reader of Court of
Assistant Record Officer, Faizabad, in
police station - Kotwali city that a case is
pending before the court having case no.
50/59/85/91/139/130/146/166/236/410 of
village Manjha Barhatta, Pargana, Haweli
Oudh Tahsil and District - Faizabad. This
case was Mahanth Ram Garib Das Vs.
Kamal Das was in respect of section 54 of
U.P. Land Revenue Act. In the order sheet
of this case dated 28.11.19877 (Paper
No.4-Aa)
and
order
sheet
dated
7.8.1987(Paper No.3-Aa), the forged
thumb impression of Kamal Das were
affixed by the advocate during the course
of inspection of file. The Assistant Record
Officer by its order dated 1.10.2008
directed to lodged the F.I.R. of this
incident. It was also mentioned in the first
information report that person who had
already died was shown to be alive before
the court. The benefit of this act should go
to one Ram Kishun Yadav (Petitioner)
S/O Jai Sri Yadav, presently R/O 566,
Audhpuri Colony, Amani Ganj, Kotwali
City, Faizabad. The F.I.R. Accordingly
lodged against him on 10.10.2008. The
investigation
was
conducted
and
chargesheet was filed against Ram Kishor
Yadav u/s 419/420/467/468/471 I.P.C.
From the perusal of the record of
investigation it reveals that forged thumb
impressions of deceased Kamal Das were
put on the order-sheets with intent to get
an advantage to show that Kamal Das was
alive on the date fixed in this case on
07.08.1987
and
28.11.1987.
Hence,
offence against the petitioner is made out.

(6) Whether case falls within the
ambit of section 195 Cr.P.C. or not, it
would be necessary to look into the
provisions of section 195 of the Cr.P.C.,
which are re-produced herein below :-

"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)(i) If any offence punishable
under sections 172 to 188 (both inclusive)
of the Indian Penal Code (45 of 1860), or
1 All] Ram Kishun Yadav Vs. State of U.P. and another
365

(ii) Of any abetment of, attempt to
commit, such offence, or

(iii) Of any criminal conspiracy to
commit, such offence,

except on the complaint in writing of
the public servant concerned or of some
other public servant to whom he is
administratively subordinate;

(b)(i) Of any offence punishable
under any of the following sections of the
Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199,
200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been
committed in, or in relation to, any
proceeding in any court, or

(ii) Of any offence described in
section 463, or punishable under section
471, section 475 or section 476, of the
said Code, when such offence is alleged
to have been committed in respect of a
document produced or given in evidence
in a proceeding in any court, or

(iii) Of any criminal conspiracy to
commit, or attempt to commit, or the
abetment of, any offence specified in subclause (i) or sub-clause (ii), except on the
complaint in writing of that court, or of
some other court to which that court is
subordinate.

except on the complaint in writing of
that Court or by such officer of the Court
as that Court may authorise in writing in
this behalf, or of some other Court to
which that Court is subordinate.

(2) Where a complaint has been
made by a public servant under clause (a)
of subsection (1) any authority to which
he is administratively subordinate may
order the withdrawal of the complaint and
send a copy of such order to the court;
and upon its receipt by the court, no
further proceedings shall be taken on the
complaint:

Provided that no such withdrawal
shall be ordered if the trial in the court of
first instance has been concluded.

(3) In clause (b) of sub-section (1),
the term "court" means a Civil, Revenue
or Criminal Court, and includes a tribunal
constituted by or under a Central,
provincial or State Act if declared by that
Act to be a court for the purposes of this
section.

(4) For the purposes of clause (b) of
sub-section (1), a court shall be deemed to
be subordinate to the court to which
appeals ordinarily lie from appeal able
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 within whose local
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 subordinate;

(b) Where appeals lie to a Civil and
to 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."
366 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(7) From perusal of section
195(1)(b) (ii) reveals that the court could
take cognizance of any offence described
in Section 463, or punishable 471, 475 or
476 I.P.C. when such offence is alleged to
have been committed in respect of
document produced or given in evidence
in a proceeding in any Court, except on
the complaint in writing of that Court or
by such officer of some other Court of the
as that court may authorise in writing in
this behalf, or the Court to which that
court is subordinate.

(8) Learned counsel for the
petitioner submits that the case is covered
under
section
195(1)(b)(ii)
Cr.P.C.
because it relates to a document in the
record of the case. Hence, in view of the
Iqbal Singh Marwah's case cognizance
could only be taken on complaint filed by
the court or by any other authorized
person and not on the basis of police
report.

(9) On the contrary learned A.G.A.
submits that this case does not fall within
the ambit of Section 195(1)(b)(ii) Cr.P.C.
because the alleged act of accused was in
relation to a document which has not been
produced by any of the party nor the
alleged act said to have been committed
by any of the party to the proceedings.

(10) Having considered the rival
submissions of counsels for the parties
and going through the record it is
necessary to look into the factual matrix
of this case.

(11) Admittedly the documents
purported to have been tempered with are
nothing
but
the
order-sheets
of
proceedings before a Revenue Authority.
The alleged tempering is not in respect of
document produced or given in evidence
by any party to the proceeding in the
aforesaid proceedings.

(12) To attract the provisions of
section 195 Cr.P.C. following are the
requirements:-

I. If any offence is committed for
contempt of lawful authority of public
servants as covered under section 172 to
188
I.P.C.(both
inclusive),
section
195(1)(a) will attract.

II. If prosecution relates to an
offence against public justice as included
in section 193 to 196 (both inclusive) 199,
200, 205 to 211 (both inclusive) and 228
I.P.C , section 195(1)(b)(i) will attract.

III. If prosecution for the offence
relating to a document produced by any
party to the proceeding given in evidence
in a court as covered in Section 463, 471,
475, 476 I.P.C , section 195(1)(b)(ii) will
attract.

(13) In all the aforesaid three
contingencies,
no
court
could
take
cognizance except on the complaint in
writing of the public servant concerned or
any
authority
to
which
he
is
administratively subordinate or by Court
or by such officer of some other Court as
that court may authorise in writing in this
behalf, or the Court to which that court is
subordinate.

(14) So far as the procedure of
complaint is concerned, Section 340 of
Cr.P.C. is also relevant, which is
reproduced herein below:-

"340
.
Procedure
in
case
mentioned in section 195.--(1) When
upon an application made to it in this
behalf or otherwise any court is of
opinion that it is expedient in the interest
of justice that an inquiry should be made
1 All] Ram Kishun Yadav Vs. State of U.P. and another
367
into any offence referred to in clause (b)
of sub-section (1) of section 195, which
appears to have been committed in or in
relation to a proceeding in that court or, as
the case may be, in respect of a document
produced or given in evidence in a
proceeding in that court, such court may,
after such preliminary inquiry, if any, as it
thinks necessary,-

(a) Record a finding to that effect;

(b) Make a complaint thereof in
writing;

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

(d) Take sufficient security for the
appearance for the accused before such
Magistrate, or if the alleged offence is
non-bailable and the court thinks it
necessary so to do send the accused in
custody to such Magistrate; and

(e) Bind over any person to appear
and give evidence before such Magistrate.

(2) The power conferred on a court
by sub-section (1) in respect of an offence
may, in any case where that court has
neither made a complaint under subsection (1) in respect of that offence nor
rejected an application for the making of
such complaint, be exercised by the court
to which such former court is subordinate
within the meaning of sub-section (4) of
section 195.

(3) A complaint made under this
section shall be signed, -

(a) where the court making the
complaint is a High Court, by such officer
of the court as the court may appoint;

(b) in any other case, by the
presiding officer of the court or by such
officer of the Court as the Court may
authorise in writing in this behalf.]

(4) In this section, "court" has the
same meaning as in section 195."

(15) Section 343 of Cr. P.C. relating
to manner of taking cognizance by the
Magistrate in such type of case. Section
343 is also reproduced herein below :-

"343. Procedure of Magistrate
taking Cognizance.-

(1) A Magistrate to whom a
complaint is made under section 340 or
section
341
shall,
notwithstanding
anything
contained
in
Chapter
XV
proceed, as far as may be, to deal with the
case as if it were instituted on a police
report.

(2) 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."

(16) Section 345 of the Criminal
Procedure Code deals with the cases
falling Clause (b) of sub-clause (1) of
Section 195 Cr.P.C. Section 345 is also
relevant in the light of Section 195 .
Section 345 Cr.P.C. provides procedure in
certain cases of contempt, the provision
ogf section 345 Cr.P.C.is also reproduced
herein below :-

"345. Procedure in certain cases
of contempt.--

(1) When any such offence as is
described in section 175, section 178,
section 179, section 1 80 or section 228 of
368 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the Indian Penal Code (45 of 1860) is
committed in the view or presence of any
Civil, Criminal or Revenue Court, the
court may cause the offender to be
detained in custody and may at any time
before the rising of the court on the same
day, take cognizance of the offence and,
after giving the offender a reasonable
opportunity of showing cause why he
should not be punished under this section,
sentence
the
offender
to
fine
not
exceeding two hundred rupees, and, in
default of payment of fine, to simple
imprisonment for a term which may
extend to one month, unless such fine be
sooner paid.

(2) In every such case the court shall
record the facts constituting the offence,
with the statement (if any) made by the
offender as well as the finding and
sentence.

(3) If the offence is under section
228 of the Indian Penal Code (45 of
1860), the record shall show the nature
and stage of the judicial proceeding in
which the Court interrupted or insulted
was sitting, and the nature of the
interruption or insult.

(17) The investigation is the
statutory power of the police under
Cr.P.C.. These powers are not in any way
controlled or circumscribed by section
195 Cr.P.C. as held in State of Punjab
Vs. Raj Singh, AIR 1998 SC 768.

(18) It is also to be noticed that at
the stage of investigation Section 195
Cr.P.C.
has
no
application.
Once
investigation is completed then embargo
in section 195 Cr.P.C. comes into play
and court would not be competent to take
cognizance . If offence falls within the
ambit of Section 195 Cr.P.C. as held in
M.
Narayan
Das
V/s
State
of
Karnataka, 2003)11 SCC 251.

(19) In Iqbal Singh Marwaha's
case (Supra) a constitution Bench of
Hon'ble Supreme Court dealt with the
case falling under section 195(1)(b)(ii)
and held that if forgery in respect of the
document produced in the court has been
committed before filing of the documents,
the same would be out of the purview of
section 195 Cr.P.C.

(20) The present case is not in
respect of a document produced in any
proceedings in a court by any party to the
proceeding, so Iqbal Singh Marwaha's
case(Supra) will not extend any help to
the petitioner.

(21) For attracting the provisions
Section 195 it is indispensable that
offence committed must in some manner
have affected the proceedings or had been
designed to affect them or come to the
light in course of them, but an offence
committed after the close is wholly
outside the scope of provision of Section
195, as held in S. L. Goswami vs High
Court Of Madhya Pradesh AIR 1979
SC page 437.

(22) The next requirement to attract
section 195 is that the proceedings must
be before a court. The proceedings
purported to be under section 54 of the
U.P.Land Revenue Act are related with
revising the map and record of Revenue
Land. In Lal Bihari Prasad Vs. State of
Bihar, 1980 Cr.L.J page 64 (PatnaDivision Bench) it has been held that
Deputy Collector incharge of Land
Reforms or Additional Collector or
Additional
Commissioner
hearing
1 All] Ram Kishun Yadav Vs. State of U.P. and another
369
mutation dispute is not a court within the
meaning of Section 195Cr.P.C. However,
in Maharaji Vs. Rama Shankar, 1983
Cr.L.J, 24 (Allahabad High Court), it
was held that Tehsildar conducting
mutation proceedings u/s 34 of U.P. Land
Revenue Act, 1901 is a Revenue Court
within the meaning of Section 195
Cr.P.C.

(23) The proceedings under section
54of U.P.L.R.Act relating to revision of
map and record of revenue land are
conducted by Record Officer in view of
section 54(1) of U.P.L.R.Act. Section 4(8)
defines the Revenue Court. Section 4(8)
of
U.P.Land
Revenue
Act,1901
is
extracted below:-

" 4. Definitions.-- In this Act unless
there be something repungent in the
subject or context--

(8) " Revenue Court" means all or
any of the following authorties(that is to
say), the Board and all members thereof,
Commissioners,
Additional
Commissioners,Collectors
,Additional
Collectors,
Assistant
Collectors,
Settelment officers, Record officers,and
Assistant
Record
Officers
and
Tehsildars;"

Hence Rocord officer conducting
proceeding under section 54 of U.P.L.R.Act
certainly
be
categorized
as
court
proceedings and the Revenue Officer
dealing with those proceedings shall
certainly fall within the ambit of "Court" as
defined in Section 195 (3) of Cr.P.C.

(24) In order to attract an operation
of the section 195, the offence should be
alleged to have been committed by the
party to the proceedings in his character
as a party, i.e., after having become a
party to the proceedings, as held in
Raghunath Vs. State of U.P. AIR 1973
(SC) 1100 and in Mohan Lal Vs. State
of Rajasthan AIR 1974 (SC) page 299.

(25) The question, whether in the
present case Section 195 Cr.P.C.will
create a bar in taking cognizance by the
Magistrate ? is to be considered in the
light of the fact of the case. The entire
record is not before this court. What
offence has been committed in the facts
and circumstances of this case or whether
the offence for which the cognizance has
been taken by the Magistrate are made out
or not is also to be seen in the light of fact
of this case.

(26) From perusal of the record
available here, it appears from the
allegations made in the F.I.R. that some
lawyer tempered with the order sheets of
the case. However, the chargesheet has
been filed against the present petitioner
Ram Kishun Yadav. In case, the case falls
Under Section 195 (1)(b)(ii) or (iii)
Cr.P.C. then it would be incumbent upon
the court to see whether the person
committed offence by tempering the
order-sheet
was
party
to
those
proceedings, in respect of which such
forgery has been committed.

(27) In case the the matter falls
within the ambit of Section 195(1)(a)(i) or
195(1)(b)(i) in that event too court has to
decide whether any offence punishable
under section 172 to 188 (both inclusive),
section 193 to 196 (both inclusive), 199,
200, 205 to 211 (both inclusive) and
section 228 I.P.C. are made out from the
material available in the police diary.

(28) It is clear that if the case falls
within the ambit of either Section
370 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
195(1)(a) or 195(1)(b), cognizance taken
by Magistrate would be bad because the
same would be against the procedure
established by law as contained in Section
195 readwith Section 340 and 343 Cr.P.C.

(29) In view of the above facts and
circumstances of the case, this court is of
the firm view that matter should be sent
back to the Trial Court to give specific
finding with reasons on the basis of
material available on police diary whether
this case is covered under section 195
Cr.P.C. or not ? In case, trial court comes
to the conclusion that case does not falls
within the ambit of section 195 Cr.P.C.,
only in that event, that court shall proceed
with the trial.

(30) In view of the above it is
provided that till the Trial Court takes
decision on the aforesaid issue, no
coercive steps shall be taken against the
petitioner.

(31) With this observation, petition is
finally disposed of.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.03.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Service Single No. 5933 of 2005

State of U.P.

 ...Petitioner
Versus
State Backward Commission U.P. and
others

 ...Respondents

Counsel for the Petitioner:
C.S.C.

Counsel for the Respondents:
Sri B.K. Chaudhary
Ari A.K. Chaudhary
Sri Alok Kumar
Sri B.L. Maurya
Sri N.L. Pandey

U.P. State Commission for Backward
Classes Act.1996-Section-10- Power of
Commission-to
adjudicate
individual
grievances-when
legislature
silentcommission
has
no
authority
to
adjudicate the individual grievances-in
absence of power like Court or Tribunalorder quashed.

Held: Para-18

A
perusal
of
impugned
order
dated
13.08.2004, passed by the Commission
reveals that the Commission not only
required the authorities of the Education
Department to submit their reply but also
proceeded to decide the complaint as a lis
between the complainants and authorities
of the Education Department and after
discussing the matter at length has given a
finding to the effect that the complainants
are liable to be promoted in lecturer's grade
and further that they are entitled to the
salary of the said grade. The manner in
which the Commission appears to have
proceeded and recorded its finding leaves
no room of doubt that it not only
entertained but even decided the individual
dispute raised by the complainants in
respect
of
their
individual
grievances
pertaining to their service conditions.
Case Law discussed:
[2011 (1) ADJ 112 (DB)]

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J)

1. As to whether U.P. State
Commission
for
Backward
Classes
(hereinafter referred to as ' Commission')
constituted under U.P. State Commission
for Backward Classes Act, 1996 is
couched with power and authority under
Section 9 read with Section 10 of the said