# PATEL LAUIBHAI SOMABHAI v. THE STATE OF GUJARAT

- **Citation:** [1971] Supp. 1 S.C.R. 834
- **Court:** Supreme Court of India
- **Decided:** 1971-05-07
- **Bench:** S. M. Sikri, P. Jaganmohan Reddy, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/patel-lauibhai-somabhai-v-the-state-of-gujarat-5445
- **Pages:** 14

## Headnote

Cod• of Criminal Proc•dure, 1898-S•ctlon !9S(l)(c), Scop• of.
The ar.llant had filed a suit for the recovery of certain amount on
the basis o a foraed cheque. A private complaint waa filed in tho Court
ef the Judicial Maaistrate aaainst the appellant and another per•on for
otfencea punishable under sections 467 and 471 Penal Code. The Ma1is·
trate found primo focle evidence !hat the appellant bad fraudulenUy used
in the Civil Suit a forged cheque, and committed him to the Sessions for
trial. Tho appellant raised an objection tblit in view of aection !95(l)(C)
of tho Codo of Criminal Procedure no cognizance of the offence could
be taken on a private complainl Tho High Court upheld the commit·
meat erder. On tho scope and effect of aection 195(l)(C) and iii applicability to cases where a forged document bas been produced as evidence in
a judicial proceeding by a party thereto and prosecution of that party is
aougbt for offences under sections 467 and 471 Penal Code,
HELD: The words "to have been committed by a party to any pro·
ceedina 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 a• such party, that is, after havina become a party to the proceed·
ina. Sections 195(l)(C), 476 and 476A Code of Criminal Procedure, read
toaetber indicate that tho legi&lature could not have intended to extend tho
prohibition contained in section 195(1)(c) to tho offences mentioned therein
when committed by a party to a proceedina in that court prior to his be·
coming such party. Tho offences about which tho court alone, to the
exclusion of the aggrieved private parties, is clothed with the right to complain, may be appropriately considered to be only those offences committed ·by a party to a proceeding in that court, the commission of which bas
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. [842·D·H]
In this case the offence under section 471 Penal Code is clearly cover~
ed by the prohibition contained in section 195(1) (C); but the offence under
section 467 Penal Code can be tried in the absence of a complaint by the
Court unless it is shown by the t;vidence that documents in question were
forged by a party to the ear~er proceedin¥ in. his character as such a party;
in other words after the smt bad been mstituted. [847B]
Emperor v. Kushal Pal Singh, I.L.R. [1953] All. 804 approved.
State of Gujarat v, A.Ii Bin Rajak, 9 Guj: Law Reporter I, Emperor v.
Mallappa, A.I.R. 1937 Born. 14, Har Prasad v. Hans Raj, A.l.R. 1966 All.
124, Vivekanond v. State A.I.R. 1969 All. 189, Harinath Singh v. State 1964
All. L. J. 467, Basir·u/.Haq v. State of West Bengal,
A.l.R. 1953 S.C.
293, Krishna Nair v, Stat• of Kerala, (1962) I Cr!. L. J. 340 and Stat• v.
Bhikubhol, A.I.R. 1965 Guj. 70, referred to.
SOl4ABHAI 1. GUJARAT (Dua, J.)
835
CiuMINAL APPELATB JURISDICTION : Criminal Appeal No. 169
A
of 1969.
Appeal from the judgment and order dated April 30, 1968
of the Gujarat High Court in Criminal Reference No. 49 of 1966.
N. N. Keswani, for the appellant.
S. K. Dho/akia and S. P. Nayar, for the respondent.
The J uclgment 'Of the Court was delivered by
Dua, J.-This appeal with certificate under Art. 134(l)lc)
'Of the Constitution directed against the judgment and order of the
Gujarat High Court in criminal reference made by the Sessions
Judge, Ahmedabad, raises an important question of law on which
there appears to be conflict of judicial opinion. Even in the
Gujarat High Court the correctness of the majority view in the
Full Bench decision in the State of Gujarat v. Ali Bin Rajak(')
bas been doubted by the learned Judge hearing the criminal
reference in the present case, who followed the majority view
merely because he felt bound by it.
The learned single Judge

## Text

834
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PATEL LAUIBHAI SOMABHAI
v.
THE STATE OF GUJARAT
May 7, 1971
[S. M. SIKRI, C. J,, P. JAGANMOHAN REDDY AND
I. D. DUA, JJ.)
Cod• of Criminal Proc•dure, 1898-S•ctlon !9S(l)(c), Scop• of.
The ar.llant had filed a suit for the recovery of certain amount on
the basis o a foraed cheque. A private complaint waa filed in tho Court
ef the Judicial Maaistrate aaainst the appellant and another per•on for
otfencea punishable under sections 467 and 471 Penal Code. The Ma1is·
trate found primo focle evidence !hat the appellant bad fraudulenUy used
in the Civil Suit a forged cheque, and committed him to the Sessions for
trial. Tho appellant raised an objection tblit in view of aection !95(l)(C)
of tho Codo of Criminal Procedure no cognizance of the offence could
be taken on a private complainl Tho High Court upheld the commit·
meat erder. On tho scope and effect of aection 195(l)(C) and iii applicability to cases where a forged document bas been produced as evidence in
a judicial proceeding by a party thereto and prosecution of that party is
aougbt for offences under sections 467 and 471 Penal Code,
HELD: The words "to have been committed by a party to any pro·
ceedina 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 a• such party, that is, after havina become a party to the proceed·
ina. Sections 195(l)(C), 476 and 476A Code of Criminal Procedure, read
toaetber indicate that tho legi&lature could not have intended to extend tho
prohibition contained in section 195(1)(c) to tho offences mentioned therein
when committed by a party to a proceedina in that court prior to his be·
coming such party. Tho offences about which tho court alone, to the
exclusion of the aggrieved private parties, is clothed with the right to complain, may be appropriately considered to be only those offences committed ·by a party to a proceeding in that court, the commission of which bas
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. [842·D·H]
In this case the offence under section 471 Penal Code is clearly cover~
ed by the prohibition contained in section 195(1) (C); but the offence under
section 467 Penal Code can be tried in the absence of a complaint by the
Court unless it is shown by the t;vidence that documents in question were
forged by a party to the ear~er proceedin¥ in. his character as such a party;
in other words after the smt bad been mstituted. [847B]
Emperor v. Kushal Pal Singh, I.L.R. [1953] All. 804 approved.
State of Gujarat v, A.Ii Bin Rajak, 9 Guj: Law Reporter I, Emperor v.
Mallappa, A.I.R. 1937 Born. 14, Har Prasad v. Hans Raj, A.l.R. 1966 All.
124, Vivekanond v. State A.I.R. 1969 All. 189, Harinath Singh v. State 1964
All. L. J. 467, Basir·u/.Haq v. State of West Bengal,
A.l.R. 1953 S.C.
293, Krishna Nair v, Stat• of Kerala, (1962) I Cr!. L. J. 340 and Stat• v.
Bhikubhol, A.I.R. 1965 Guj. 70, referred to.
SOl4ABHAI 1. GUJARAT (Dua, J.)
835
CiuMINAL APPELATB JURISDICTION : Criminal Appeal No. 169
A
of 1969.
Appeal from the judgment and order dated April 30, 1968
of the Gujarat High Court in Criminal Reference No. 49 of 1966.
N. N. Keswani, for the appellant.
S. K. Dho/akia and S. P. Nayar, for the respondent.
The J uclgment 'Of the Court was delivered by
Dua, J.-This appeal with certificate under Art. 134(l)lc)
'Of the Constitution directed against the judgment and order of the
Gujarat High Court in criminal reference made by the Sessions
Judge, Ahmedabad, raises an important question of law on which
there appears to be conflict of judicial opinion. Even in the
Gujarat High Court the correctness of the majority view in the
Full Bench decision in the State of Gujarat v. Ali Bin Rajak(')
bas been doubted by the learned Judge hearing the criminal
reference in the present case, who followed the majority view
merely because he felt bound by it.
The learned single Judge
did not consider the case to be fit for reference to a larger
bench for reconsidering the majority view in the case of Ali Bin
Rajak(').
Certificate of fitness for appeal to this
Court was,
l!owever, granted by the learned Judge.
The question raised relates to the scope and effect of
s. 195(l)(c), Cr. P.C. and its applicability to cases where a forged
document has been produced as evidence in a judicial proceeding
by a party thereto and prosecution of that party is sought for
offences under ss. 467 and 471, I.P.C. in respect of that document.
The relevant facts of the case may now be briefly sta.ted,
The appellant Patel Laljibhai Somabhal instituted a civil suit
(No. 11 of 1964) in the court of Joint Civil Judge at Dholka
against Vora Safakat Huseian Yusufali (hereafter called the complainant) and his brother Vora Ahmed Huseian Yusufali for the
recovery of Rs. 2,000 I· on the basis of a cheque dated November
22,. 1963 (alleged to have been given to him on June 27, 1963)
under the signatures of the complainant Vora Safakat Huseian
Yusufali Lakadwala on the Bombay Mercantile
Cooperative
Bank Ltd., Ahmedabad Branch. The defence in the suit was
that the cheque in question and certain coupons .. which were
produced and relied upon in that suit were forged and the suit
was false. The suit was dismissed on January 30, 1965 by the
Joint Gvil Judge, Dholka.
The Co111t did not believe
the
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plaintiff's story about the cheque.
On November 16, 1965 the
compiainant filed a complaint in the court of the Judicial Magistrate, First Class, Dholka against two accused persons for offences
punishable under ss. 467 and 471, I.P.C. The two accused were
Vora Saifuddin Akbarali and the appellant.
Vora Saifuddin
Akbaraili (accused no. 1) is described in the complaint as the
complainant's sister's husband. It was averred in the complaint
that the complaintant's elder brother Ahmedbhai had started a
business in milk in Ahmedabad and accU.Sed no. 1 used to help
him in that business from time to time. This business had been
started in the shop of the brother of accused no. 1 who was
also dealing in milk. Ahmedbhai used to stay at the house of
accused no. 1. The books, coupons and cheque books of the
milk business had been kept at the residence of accused no. l.
This business was carried on till July, 1962 when it was closed
and Ahmedbhai left Ahmedabad for Limbdi for staying there.
The appellant had been appointed as the commission agent
through accused no. 1 and milk was collected from various milkmen through him (the appellant).
When the business was
closed on July 28, 1962 a sum of Rs. 231-1-0 remained to be
paid to the appellant and nine cans of milk remained in balance
with him. A notice was given in this connection after settling all
the accounts and the appellant paid Rs. 200/- in cash to Ahmedbhai and thereafter nothing was due to the appellant. On
November 30, 1962 the defendants in the suit at the instance
of accused no. 1 started a milk shop at Jamalpur and they used
to stay at the house of accused no. I who was employed in tlte
Mercantile Bank and through whom an account was opened with
that bank in the name of the defendants. Accused no. I nsed
to utilise this account for himself and his brothers.
Being a
relative, accused no. I was trusted by the complainant and ru,
brother and they used to act according to the instructions of
accused no. I. In June, 1962 accused no. 1 had come to Limbdi
and asked for a loan of Rs. 15,000/- from the complainant's
father. But this request was declined with the result that accusH
no. I got annoyed and threatened him with ruinous consequences.
Thereafter accused no. I conspired with the appellant to harm
the complainant and his brother and father. Cheque books containing blank cheque forms but bearing the complainant's
signatures and all the books of account were at that time kept
in the house of accused no. !, where the complainant and his
brother used to stay. It is in this background that the accused
no. I prepared a cheque for Rs. 2,000 /- in his own handwriting
on a blank cheque form bearing the oomplainanfs signature and
the appellant utilised that cheque.
The appellant and accused
no. 1 were, on these averments, alleged to have forged the cheque.
Civil Suit No. ll / 64 was then filed in which this cheque was
use~ knowing the same to be forged. The Magistrate found
SOMABHAI v. GUJARAT (Dua, J.)
prima facie evidence that the appellant (accused No. 2) had fraudulently used in the civil suit the forged chaque in question. The
Magistrate also found prima facie evidence that accused no. 1
had committed an offence punishable under s. 467, I.P.C.
and
the appellant was liable under s. 34, I.P.C. The forgery of the
cheque and the use of the forged cheque as genuine were considered by the Committing Magistrate to form part of the· same
transaction and the two charges could, therefore, be tried together.
The question of the necessity of complaint by the Civil Court
under s. 195(1)(c), Cr. P.C. was also raised in the committing
court but following the decision of the Bombay High Court in
Emperor v. Mallappa(') the Magistrate held that provision to be
inapplicable to the present case. On behalf of the appellant an
application was then made in the court of the Assistant Sessions
Judge in which the trial was to be held, praying for quashing
the commitment proceedings because in face of s. 195(1)(c) no
cognizance of the offence could be taken by the court on a
private complaint.
As the Assistant Sessions Judge could not
make any reference to the High Court the case was withdrawn by
the Sessions Judge to his own court who after hearing the application referred the case to the High Court with a recommendation that the commitment order be quashed.
The High Court,
considering itself bound by the majority view in the case (}f
Ali Bin Rajak(') declined the recommendation and upheld the
commitment order as already noticed. In view of the contlict
of judicial opinion amongst the various High Courts and even
in the Gujarat High Court itself we would prefer first to consider
the relevant statutory provisions on their own
language
and
thereafter to consider the decided cases.
Section 195 ciccurs in Division B of Chapter XV in Part VI
of the Code of Criminal Procedure.
Part VI consisting of
Chapters XV to XXX iS headed "Proceedings in prosecution".
Chapter XV deals with "The jurisdiction of criminal courts in
inquiries and trial!'. It consists of ss. 177 to 199B and is divided
into two divisions. Sections 177 to 189 (Division A) deal with
the "Place of Inquiry or trial" and ss. 190 ·to 199B (Division B)
deal with the "Conditions requisite for initiatiop. of proceedings".
We are only concerned with Division B but it is unnecessary to
deal with each one · of the sections contained in tha.t Division.
Only two section~ require to be noticed, namely, ss. 190 and 195.
Section 190 deals with "cognizance of offences by Magistrates".
This section, subject to the exceptions contained in the succeeding
provisions of the Code, empowers the Magistrates mentioned
therein to take cognizance of any offence 11pon complaint, police
report, or information or on the knowledge or suspicion· of the
(1) A. I. R. 1937 Born. 14.
(2) 9 Guj. Law Reporter I.
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Magistrate about the commission of an offence. The main purpose of this section is to ensure freedom and safety of the subject
by giving him a right to approach the court if he considers that
a wrong has been done to him.
Sub-section (!) of s. 195 which
is concerned with (a) "Prosecution for contempt of lawful authority of public servants", (b) "Prosecution for certain offences
against public justice", and (c) "Prosecution for certain offences
relating to documents given in evidence" places some restrictions
on the general power conferred on courts of Magistrates by s. 190
to take cognizance of offences. This section may here be reproduced.
"195. Prosecutioa for contempt of lawful authority of public
Sft'YaJd».-
(1) No Court shall take cognizance-
(a) of any offence punishable under sections 172 to
188 of the Indian Penal Code, except on the complaint
in writing ·of the public servant concerned, or of some
other public servant to whom he is subordinate;
(b) Prosecution for certain offences against public
justice.---Of any offence punishable under any of the
following sections of the same Code, namely, s.ections
193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209,
210, 211 and 228, when such offence is alleged to have
been committed in or in relation to any proceeding in
any Court, except on the complaint in writing of
such Court or some other Court to which such Court is
subordinate; or
(c) Prosecution for certain offences relating to documents given in evldence.-Of any offence described in
section 463 or punishable under section 471, section 475
or section 476 of the same Code, when such offence is
alleged to have been committed by a party to any proceeding in any Court in respect of a document produced
or given in evidence in such proceeding, except on the
complaint in writing. of such Court, or of some other
Court to which such Court is subordinate.
(2) In clauses (b) and (c) of sub-section (!), the term
"Court" includes a Civil, Revenue or Criminal Court,
but does not include a Registrar or Sub-Registrar under
the Indian Registration Act, 1877.
(3) For the purposes of this section, a Court shall be
deemed to be subordinate to the Court to which appeals
ordinarily lie from the appealable 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
SOMABllAI v. GUJARAT (Dua,J.)
within the local limits of whose 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 to be sub·
ordinate; and
(b) where appeals lie to a Civil and also
to a
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.
(4) The provisions of sub-section (1), with reference
to the offences named therein, apply also to criminal
conspiracies to commit such offences and to the abetment
of such offences, and attempts to commit them.
(5) Where a complaint has been made under subsection (1), clause (a), by a public servant, any authority
to which such public servant is subordinate may order
the \vithdrawal of the complaint and, if it does so, it
shall forward a copy of such order to the Court and,
upon receipt thereof by the Court, no further proceedings
· shall be taken on the complaint."
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
icourt".
As cl. (b) of s. 195(1) dqes not speak of offence com·
milted 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 m
decided cases in this connection.
According to one view,
to
attract the prohibition contained in cl. (CJ 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 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
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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).
In construing this clause we consider it appropriate to read
it along with s. 476 Cr. P.C. which prescribes the procedure for
cases mentioned in s. I 95(l)(b) and (c), also bearing in mind
that under s. 476A a superior court is empowered to complain
when the subordinate court has omitted to do so and that s. 476B
confers on an aggrieved party a right of appeal from an order
refusing to make a complaint under s. 476 or s. 476A as also
from an order making such a complaint.
All these provisions,
forming part as they do of the statutory scheme dealing with
the subject of prosecution for offences against administration of
justice, require to be read together and when so read would
help us considerably in having a more vivid
picture of
the .
legislative intendment in prescribing the prohibition in the two
clauses of s. 195(!) and the procedure for initiating prosecutions
for offences mentioned therein. Section 476 reads :
"476. Procedure in cases mentioned in section 195.-
( f) When any Civil, Revenue or Criminal Court is,
whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of
justice that an inquiry should be made into any offence
referred to in section 195, sub-section (!), clause (b) or
clause (c), which appears to have been committed in or
in relation to a proceeding in that court, such Court may,
after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint
thereof in writing signed by the presiding officer of the
Court, and shall forward the same to a Magistrate of
the first class having jurisdiction, and may take sufficient
security for the appearance of the accused before such
Magistrate or if the alleged offence is non-bailable may,
if it thinks necessary so to do, send the accused in custody
to such Magistrate, and may bind over any person to
appear and give evidence before such Magistrate :
Provided that, where the Court making the
complaint is a High Court, the complaint may be signed by
such officer of the Court as the Court may appoint.
For the purposes of this sub-section, a Presidency
Magistrate shall be deemed to be a Magistrate of the
first class.
SOMABHAI v. GUJARAT (Dua, J.)
(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section
200.
(3) 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."
This section quite clearly postulates formation of judicial opinion
that it is expedient to hold an inquiry into an offence referred
to in cl. (b) or in cl. (c) of s. 195(!) which appears to the Court
to have been committed either· in' or in relation to a proceeding
in that court. Offences mentioned in cl. (b), it may be recalled,
would be covered by that clause even if they are alleged to have
been committed in relation to a proceeding in a court, whereas
those mentioned in cl. (c) should be alleged to have been committed
by. a party to a proceeding in a court in respect of a document
produced or give11 in evidence in that proceeding. Section 476,
it is also noteworthy, empowers the court even suo motu to take
up the question of expediency of making a complaint.
As a
general rule, the courts consider it expedient in the interest of
justice to start. prosf#:utions as contemplated by s. 476 only if
there is a reasonable foundation for the charge and there
is a
reasonable likelihood, of conviction. The requirement of a finding
aG to the expediency is understandable in case of an offence alleged
to have been cominitted either in or in relation to a proceeding
in that court in case of offences specified in cl. (b) because of
the close nexus between the offence and the proceeding.
In case
of offences specified in cl. (c) they are required to be committed
by a party to a proceeding in that court with respect to a document produced or given in evidence in that court. The offence
covered by s. 471 I.P.C.
from the its very nature must
be
committed in the proceeding itself by a party thereto.
With
respect to such an offence also expression of opinion by
the
court as to the expediency of prosecution would serve a useful
purpose. It is only with respect to the offence described
in
~- 463 I.P.C. and the offences punishable under ss. 475 or 476
I.P.C. that two ·'Views are possible and therefore the effect
of
reading s. 195(1)(c) ands. 476 Cr. P.C. together has to be examined
for discovering the true legislative intendment in respect of these
offences.
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 theniselves aggrieved by the offences
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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 pf public justice, which is the direct and
immediate object or victim of these offences and it is only by
misleading the courts and thereby perverting 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
cf 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 ot 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 comjPlain 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 fr~h jnquiry, satisfactorily
consider by reference principally to its rec~rds 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
thosecases 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 appear
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
t.bat the legislature could not have intended to extend the prohibition contained ins. 195(1)(c) Cr. P.C. to the offences mentioned
therein when committed by a party to a proceeding in that court
prior to bis 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 tlmt in our opinion cannot be the controlling
factor, because to adopt that construction, documents forged long
SOMABHAI v. GUJARAT (Dua, J.)
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 Cr. 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
tw<> sections. The Court in such a case may not be in a position
to satisfactorily determine the question of expediency of making
a complaint.
We may now consider the decisions cited at the bar.
In
Emperor v. Kuahal Pal Singh(') it was held by a Full Bench, of
that Court that s. 195(1)(c) Cr. P.C. applies only to cases where
an offence mentioned therein is committed by a party as such
to a proceeding in any court in respect of a document which has
been produced or given in evidence in such proceeding.
The
words "committed by a party to a proceeding" in s. 195(1)(c)
were interpreted in that case to mean "committed by a person
who is already a party to a proceeding". The court in that case
read. both s. 195 and s. 476 Cr. P.C. together because s. 195 was
held to lay down the bar against the cognizance of certain offences
and s. 476 the method for removing the bar. On the view taken
by the court a complaint cannot be filed by a court under its
inherent jurisdiction outside the provisions of s. 476
Cr. P.C.
In Hari Prasad v. Hans Raj(') a learned single Judge of the
Allahabad High Court, dealing with the allegations made in a
complaint under ss. 476 and 471 I.P.C. that a forged sale deed
had been got executed and registered in pursuance of a criminal
conspiracy amongst three opposite parties one of whom had filed
an application for the mutation proceedings on the basis of the
said forged deed observed that a close nexus was established
between the conspiracy and its resulting in a forged deed and
the subsequent filing of the mutation application on its basis, all
ol' which form various links of the same chain. On this premise
it was observed that cognizance of the offences was a bar on a
private complaint under s. 195(l)(b) Cr. P.C. The learned Judge
in the course of the judgment also said that even if it is held
that the allegations made in the complaint disclose offences under
ss. 467 and 471 I.P.C. as alleged therein and not under s. T93
I.P.C. their cognizance would be barred under s. 195(l)(c). The
words "in respect of" were considered to be wide enough to
include even a document which was prepared before the proceedings started in a court of law but was produced or given in
evidence in that proceeding.
According to this decision, when
a document is produced in a court or is given in evidence, it is
for that court to decide whether it is genuine or forged ana if
(I) I. L. 11.. [1953] All. 804.
(2) A. I. 11.. 1966 All. \24.
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a private party is allowed to lodge a complaint on the basis of
that document describing it as forged and if that complaint is
entertained without affording opportunity to the court
before
whom the document had been produced to give its opinion it
would amount to forestalling its decision and is likely to foad
to anomalous situation and also sometimes the contradictory findings by two competent courts. Incidently it may be pointed out
that the earlier Full Bench decision of the Allahabad High Court ·
was not cited in this case.
In Vivekanand v. State(') another
single Judge of the Allahabad High Court observed that when
the main finding is the one under s. 471 I.P.C .. namely,
the
finding of using a forged document as genuine and the other
offences all flow from it, in the sense that if the charge under
s. 471 fails, the charges for the other offences would also fail,
none of which offences can in truth and substance be said to be
of a distinct nature, the mere fact that ss. 406, 467 and 420
l.P.C. are also tacked on to the offence under s. 471 I.P.C. would
not serve to take the case out of the scope and ambit of s. 195(i)(c).
In this case a forged vakalatnama was produced before the Compensation Officer for withdrawing certain amount.
The Compensation Officer was held to be a Court. Of the offence charged,
viz. under ss .. 406. 420 and 467 I.P.C. along with s. 471 I.P.C.,
the first three sections were held to be cognate to s. 471 I.P.C.
In this case too the earlier Full Bench decision was not noticed
and the learned single Judge followed an earlier Division Bench
decision of that Court reported as
Harl Nath Singh v. State(')
In Hari Nath Singh's case('), distinguishing the decision of. this
Court in Basr-ul-Huq v. State of West Bengal(') it was obiern~d
that offences under ss. 193 and 218 I.P.C. in that case were
both barred. In Krishna Nair v. State of Kera/a(') a learned
single Judge of the Kerala High Court observed that the words
"when such offence has been committed by a party to any proceedings in any court" used in s. 195(l)(c) referred not to the
date of the commission of the alleged offence but to the date
on which the cognizance of the criminal court is invited
and
that when once a document has been produced or given in evi·
dence before a court the sanction of that court or perhaps of
some other court to which that court is subordinate is necessary
before a party to the proceedings in which the document was
produced or given in evidence can be prosecuted notwithstanding
that the offence alleged was committed before the document came
into the court at a date when the person complained
against
was not a party to any proceeding in court. In this case reference was made to several decisions of various
High
Courts
including some decisions of the Allahabad High Court prior to
(1) A. I. R. 1969 All. 189.
(3) A. I. R. 1953 S. C. 293.
(2) 1964 All. L. J. 467.
(4)(1962) I Cr!. L. J. 340
•
SOMi\BHAI V. GUJARAT (Dua,J.)
845
the Full Bench. decision which was significantly not noticed.
The Full Bench of the Gujarat High Court in State of Gujarat
v. Ali Bin Rajak(') by majority held that under s. 195 (!) (c)
Cr. P.C. sanction for prosecuting a party to a proceeding for an
offence under s. 471 I.P.C. was not necessary in respect of a
use made outside the court in which the document was subsequently used, as the bar to cl. (c) would apply only to those cases
where the offences mentioned therein were committed in regard
to the documents produced or given in evidence in proceeding .
The facts in the reported case were, that one Har Govind Kalidas
had obtained a decree against Ali Bin Rajak of Junagadh from
the court of a civil Judge, Junior Division, Visavadar, District
Junagadh. Har Govind filed an execution application for recovering his decretal dues in the course of which the amount
payable by the Mamlatdar, Dhari to the judgment-debtor under
an annuity card was attached. Garnishee order was served on
the Mamlatdar, Dhari.-
Rajak thereafter appeared before
the
Mamlatdar and stated that he had paid the decretal amount to
Har Govind.
The Mamlatdar required Rajak to produce the.-
receipt which was produced on July 27, 1964. The receipt bore
the date May 23, 1964, purporting to be signed by Har Govind.
Thereupon the Mamlatdar paid the amount due under the annuity
card to Rajak and made a report to the Civil Court enclosing
the receipt produced by Rajak. The Civil Court called upon
Har Govind to show cause why the execution application should
not be disposed of. Har Govind denied receipt of any amount
from Rajak and alleged the receipt to be forged.
The Civil
Court thereupon issued notice to the Mamlatdar requiring him
to show cause why he should not be held up for contempt of.
court. The Mamlatdar regretted his action in making payment
without the Civil Court's order arid explained how he relied upon
Rajak's word.
The Mamlatdar got the amount produced by
Rajat: and forwarded the same to the Civil Court. The amount
was produced by Rajak under protest and subject to his right
to claim the same. Thereafter Har Govind lodged a F.I.R. with
the police at Dhari and on completion of the investigation the
P .S.I. sent a charge-sheet against Ali Bin Ra jak to the court.
The Magistrate finding prima facie case committed Rajak to the
Sessions Court for trial. One of the charges was under s. 420
I.P.C. and the other Was under s. 471 I.P.C. The second charge
with which alone the court was concerned was based on the
allegation that Rajak had made use of the receipt dated · May,
23, 1964, alleged to he forged before the Mamlatdar by producing
the same before that officer on July 16, 1964.
The objection
taken by Rajak was that by virtue of s. 195(1)(c) the court could
not take cognizance of this case whereas on behalf of the prose-
(1) 9 Guj. Law Reporter I.
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cution it was contended that the forged receipt had been produced
before the Mamlatdar before its production in the civil
court
and, therefore, s. 195(1)(c) was inapplicable.
It was
in
this
context that the majority of the judges held that no complaint
by the court was necessary whereas one learned Judge took tine
contrary view.
It appears to us that in the Gujarat case the
use of the forged power of attorney
before the
Mamlatdar
occurred while· the execution proceedings were pending but since
it was not this user which was the subject matter of the charge
the majority of the Judges rightly held that thii was not barred
by s. 195(!)(c). It was apparently not argued that the complaint
of the Mamlatdar was necessary.
In State v. Bhlkubhai(') a Division Bench of the Gujarat
High Court observed that s. 195(l)(c) Cr. P.C. would apply even
when the person accused of the offence referred therein in respect
of a document produced in a court was not a party to the
proceeding in which the document was produced provided such
offence was committed by him jointly with a person who was a
party to the proceeding or provided the offence with which he
is charged is the same as alleged to have been committed by the
persons who were parties to the proceedings.
The Bench also
observed that the words "party to a proceeding" are used in
an abstract manner to indicate the only class or category
of
offenders.
It was further said that cl. (c) of s. 195(1) must be
strictly construed because it encroaches upon the jurisdiction of
the ordinary criminal courts empowered to punish offences under
s. 195 and is engrafted by way of an exception to the ordinary
powers of criminal courts.
It would, therefore, be improper to
construe it in a manner which would restrict the jurisdiction of
criminal courts unless the restriction is expressly provided for or
necessarily follows.
Broadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench in Kushal Pal Singh's case(~.
This in our opinion reflects the better view.
The purpose and
object of the Legislature in creating the bar against cognizance
of private complaints in regard to the offences mentioned
in
s. 195(l)(b) and (c) is both to save the accused person
from
vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their
opponents and also to avoid confusion which is likely to arise
on account of conflicts between findings of the courts in which
forged documents are produced or false evidence is led and the
conclusions of the criminal courts dealing with the private complaint. It is for this reason as suggested earlier, that the Legislature has entrusted the court, whose proceedings had been the
(I) A. I. R. 196S0uj. 70.
(2) J. L. R. [1953] All. 804,
SOl.tABHAI v. GUJARAT (Dua, l.)
target of the offence of perjury to consider the expediency in
the larger public interest, of a criminal trial of the guilty party.
In this case the offence under s. 4 71 LP .C. is clearly covered
by the prohibition contained in s. 195(!)(c) but the offence under
s. 467 I.P.C. can in our view be tried in the absence of a complaint by the court unless it is shown by the evidence that the
documents in question were forged by a party to the earlier proceeding in his character as such party, in other words, after the
suit had been instituted.
The appeal is accordingly allowed in part, in the terms just
stated. The lower court, we hope, will dispose of the case with
due de5patck.
K.B.N.
Appeal allowed in part.
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