# Surya Nath Singh and another v. State Of U.P. and another

- **Citation:** (2010) 3 ILRA 1142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-28
- **Case number:** Criminal Misc. Application No. 25801 of 2010
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surya-nath-singh-and-another-v-state-of-u-p-and-another-41733
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section 482summoning
order/process
issued
by
Magistrate
on
complaint
filed
by
commissioner-on allegation of forged entry
made much prior institutions of proceedingsnot fall within preview of Section 195
(1)(b)(ii)-as no wrong done during pendency
of revision before the commissioner-no
procedure adopted by Magistrate by treating
complaint under section 340 order passed by
Magistrate cannot upheld

Held: Para 14

In the present case, the alleged forgery in
the revenue record was committed outside
the Court much prior to the initiation of
the
proceeding
in
the
Additional
Commissioner's Court and it is nowhere
stated that any forgery was committed in
or in relation to the judicial proceeding
pending in the Court of learned Additional
Commissioner or in respect of a document
filed in that proceeding. Therefore, the
provisions of section 340 of the Code. are
not attracted in this case and as such no
inquiry was required under section 340 of
the Code before filing the complaint.
Case law discussed:
(1998) 2 SCC 493, (1996) 3 SCC 533, (2005) 4
SCC 370, AIR 2010 SC 812.
3 All] Surya Nath Singh and another V. State of U.P. and another
1143

## Text

1142 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Learned author notes that logic of this rule
may be questioned and various attempts
have been made to justify this rule
analytically. After considering various
lines of reasons, the author observes that
the better explanation would seem to be
that the rule is based, not on logic, but on
commercial convenience. If hardship is
caused, as it obviously may be, by the
delay or loss of a letter of acceptance,
some rule is necessary, and the rule at
which the Courts have arrived is probably
as satisfactory as any other would be. It is
always open to the offeror to protect
himself by requiring actual notification of
the acceptance, and the nature of the offer
or the circumstances in which it was made
may indicate that notification is required.

45. Even in respect of an agency the
same is based on the principle, that the
Principal is bound by the acts of the agent.
Rule of agency in a case of merely inviting
offers normally would not apply if a date
for receipt of the acceptance is set out.
Therefore, in such cases, if at all the law of
agency applies it would be between the
sender and the post office by virtue of the
fact that the sender delivers the letters or
articles to the post office. The post office is
bound as an agent of the sender to deliver
it to the addressee.

46. In our opinion, therefore, though
as earlier pointed out the reference itself is
not maintainable,t we have clarified the
law so as to avoid multiplicity of
proceedings.

47. The reference is answered in the
negative.

48.

Reference
is
answered
accordingly.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Misc. Application No. 25801 of 2010

Surya Nath Singh and another ..Petitioner
Versus
State Of U.P. and another ...Respondent

Counsel for the Petitioner:
Kamal Kumar Singh

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 482summoning
order/process
issued
by
Magistrate
on
complaint
filed
by
commissioner-on allegation of forged entry
made much prior institutions of proceedingsnot fall within preview of Section 195
(1)(b)(ii)-as no wrong done during pendency
of revision before the commissioner-no
procedure adopted by Magistrate by treating
complaint under section 340 order passed by
Magistrate cannot upheld

Held: Para 14

In the present case, the alleged forgery in
the revenue record was committed outside
the Court much prior to the initiation of
the
proceeding
in
the
Additional
Commissioner's Court and it is nowhere
stated that any forgery was committed in
or in relation to the judicial proceeding
pending in the Court of learned Additional
Commissioner or in respect of a document
filed in that proceeding. Therefore, the
provisions of section 340 of the Code. are
not attracted in this case and as such no
inquiry was required under section 340 of
the Code before filing the complaint.
Case law discussed:
(1998) 2 SCC 493, (1996) 3 SCC 533, (2005) 4
SCC 370, AIR 2010 SC 812.
3 All] Surya Nath Singh and another V. State of U.P. and another
1143
(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. Heard learned counsel for the
applicants and learned A.G.A. for the
respondent and perused the record.

2. With the consent of the learned
counsel for the parties, the petition is finally
disposed of.

3. This petition under section 482 of
the Code of Criminal Procedure (in short
'Code') has been filed against the order
dated 04.06.2010 passed by Judicial
Magistrate, Mau in Case No. 504 of 2005,
(Ramakant Pandey V. Surya Nath Singh
and others) whereby the applicants have
been summoned as accused.

4. It appears that the Additional
Commissioner,
Azamgarh
Division
Azamgarh while disposing of Revision No.
870/120M (Ram Badan V. Surya Nath
Singh) under section 219 of the Uttar
Pradesh Land Revenue Act, found that the
revenue record entry in favour of the
applicant No.1 in respect of Plot No. 1297
and 1333 of village Tajopur, Pargana and
Tehsil Sadar, District Mau was a forged
entry and accordingly allowed the revision
and directed that the aforesaid plots be
recorded as Banzar in the revenue record.
Against the order of the Additional
Commissioner, the petitioner No.1 filed
Civil Misc. Writ Petition No. 51950 of 2003
in this Court, which was finally disposed of
with the direction that the matter may be
taken
before
the
regular
Court
for
declaration of title. It further appears that
the Additional Commissioner filed a
complaint in the Court of Chief Judicial
Magistrate, Mau against the applicants with
the allegations that the applicants were
responsible for the forged entry in the
revenue record and prayed that they may be
punished in accordance with law. The
learned Additional Commissioner appears
to have filed the complaint under section
340 of the Code. Ultimately, the complaint
was put up before the Judicial Magistrate,
Mau and the applicants filed a written
objection against the maintainability of the
complaint mainly on the ground that the
Additional Commissioner had not held any
inquiry under section 340 of the Code.,
therefore,
the
complaint
was
not
maintainable but the Judicial Magistrate
rejected the objection and directed for issue
of processes against the applicants.

5. The learned counsel for the
applicants submitted that the Additional
Commissioner filed the complaint without
holding an inquiry as contemplated by
section 340 of the Code, therefore, the
complaint was not maintainable and the
learned Magistrate was not competent to
take cognizance on such complaint.

6. The learned A.G.A., on the other
hand submitted that the alleged forgery was
committed in the revenue record outside the
proceeding of the matter decided by the
learned
Additional
Commissioner,
therefore, section 340 of the Code was not
attracted.

7. The sole question which arises for
consideration in this case is whether the
complaint was not maintainable without the
inquiry under section 340 of the Code.

Section 340 of the Code reads as
follows:-

"340. Procedure in cases 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 interests of justice that an
1144 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
inquiry should be made 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 of the accused before such
Magistrate, or if the alleged offence is nonbailable 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 sub-section (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 opinion;

(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."

8. A perusal of the aforesaid excerpts
of section 340 of the Code reveals that an
inquiry under section 340 of the Code is
required to be made only when any offence
referred to in clause (b) of sub-section(1) of
section 195 is alleged to have committed in
or in relation to a proceeding of the
concerned court or in respect of a document
produced or given in a evidence in a
proceeding in that Court. In other words,
section 340 of the Code prescribes the
procedure as to how a complaint may be
filed in regard to the offences referred to in
section 195(1)(b) of the Code.

9. Section 195 of the Code deals with
the prosecution for contempt of lawful
authority of Public Servants, for offences
against public justice and for offences
relating to documents given in evidence.
Section 195(1)(b) of the Code may be
reproduced as follows:-

"(1) No Court shall take cognizance, -

(a) (i)..............................

(ii).............................

(iii)............................

(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
3 All] Surya Nath Singh and another V. State of U.P. and another
1145
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 a 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 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)............................

(3)...........................

(4).........................."

10. Therefore, section 195 (1)(b)
refers to two different category of the
offences. The first category of the offences
are punishable under sections 193 to 196,
199, 200, 205 to 211 and 228 I.P.C. The
second category of the offences are the
offences described in section 463 I.P.C. or
punishable under sections 471, 475, 476
I.P.C. In the first category of offences
section 195 of the Code is attracted only
when if any of such offences is alleged to
have been committed in or in relation to any
proceeding in any court whereas in regard
to the second category of the offences
section 195 is applicable when any of such
offences is committed in respect of a
document produced or given in evidence in
a proceeding in a court. In the cases of
conspiracy to commit, or an attempt to
commit, or the abatement of, any of the
aforesaid both the category of offences also,
the provisions of section 195 are applicable.
In all such type of cases, the cognizance of
the offences can be taken only on the
complaint in writing of the court concerned
or of any authorised officer of the court or
of the court to which the court concerned is
subordinate and not otherwise. Before
lodging of a complaint as required by
section 195 of the Code, it is also necessary
to hold an inquiry under section 340 of the
Code.

11. In the case of Sachida Nand
Singh Vs. State of Bihar (1998) 2 SCC
493, the Apex Court held that the bar
contained in section 195(1)(b)(ii) of the
Code would not apply where forgery of a
document was committed before the
document was produced in the court.
However, a contrary view was expressed in
the case of Surjit Singh Vs. Balbir Singh
(1996) 3 SCC 533. In order to reconcile the
verdicts given in the said two decisions and
to propound a correct law on the subject, a
Constitution Bench of the Apex Court
reconsidered the matter in the case of Iqbal
Marwah and another Vs. Meenakshi
Marwah and another (2005) 4 SCC 370
and propounded the following principles:-

"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
1146 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
in Chapter X, IPC and the heading of the
Chapter is - "Of Contempts of the Lawful
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."

12. The aforesaid principles have been
reiterated in the case of Mahesh Chandra
Sharma V. State of U.P. AIR 2010 SC
812. In that case, the Apex Court has held in
para 28, 29 and 30 as follows:-

28. " Learned Single Judge completely
lost sight of the fact that the offence
committed by accused in collusion with
Area Lkhpal 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 abovesaid 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 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."
3 All] Jagat Pal V. State of U.P. and others
1147

13. It is, thus, well settled that if any
of the offences referred to in section 195
(1)(b) (ii) of the Code is committed in
respect of a document before the document
is produced or given in evidence in a
proceeding in any court, the provisions of
section 195 would not be attracted. In that
eventuality, it will not be necessary to hold
an inquiry under section 340 of the Code for
filing the court complaint. But the position
is different if such offence is committed
after production of the document in
evidence in the court. In that situation the
court complaint as required by section 195
of the Code would be necessary for taking
cognizance and it would also be necessary
to hold the inquiry under section 340 of the
Code before filing the complaint.

14. In the present case, the alleged
forgery
in
the
revenue
record
was
committed outside the Court much prior to
the initiation of the proceeding in the
Additional Commissioner's Court and it is
nowhere stated that any forgery was
committed in or in relation to the judicial
proceeding pending in the Court of learned
Additional Commissioner or in respect of a
document
filed
in
that
proceeding.
Therefore, the provisions of section 340 of
the Code. are not attracted in this case and
as such no inquiry was required under
section 340 of the Code before filing the
complaint.

15. The complaint filed by learned
Additional Commissioner, in view of the
aforesaid reasons, is nothing except an
ordinary complaint under section 190(1)(a)
of the Code. Therefore, the learned
Magistrate was legally required to observe
the procedures laid down in Chapter XV of
the Code. But in this case no such procedure
has been adopted and summoning order has
been passed treating the complaint under
section 343 of the Code. Therefore, the
summoning order cannot be upheld.

16. The petition is allowed. The
impugned order dated 04.06.2010 and all
consequential
proceedings
done
in
pursuance of the impugned order are
quashed.

17. The learned Magistrate is directed
to proceed with the complaint in accordance
with Chapter XV of the Code and pass an
appropriate order in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2010

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 26617 of 2010

Jagat Pal

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

Counsel for the Petitioner:
Sri C.B. Dubey

Counsel for the Respondent:
C.S.C.

U.P.
Recruitment
of
Dependents
of
Government Servant Dying in Harness
Rules
1974-
Rule-2(c)-Compassionate
appointment-claim
by
adopted
sonrejected
on
ground
of
not
within
definition of family under the Rule-heldillegal-adopted son has same status as of
natural son-necessary direction issued.

Held Para 27

After observing so, this Court has held
that adopted son is as good as real son.
In this view of the matter, I am of the
definite opinion that the adopted son has
got the same status under law as the