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CASE NO.: Appeal (civil)  564 of 2002

PETITIONER: Rugmini Ammal (dead) by Lrs.

RESPONDENT: V. Narayana Reddiar & Ors.

DATE OF JUDGMENT: 13/12/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a Division  Bench of the Kerala High Court by which the judgment of the  learned Single judge was set aside and the writ appeal was  allowed.

2.      Background facts in a nutshell are as follows:

    Respondent No.4 in CMP No.35930 of 1998 in O.P.  No.12701 of 1998 was the 4th respondent in writ petition also.   According to the respondent No.1 he was the tenant of a  building called \021Jaya building\022 Main Road, Kollam. The tenancy  was given by one Durairaja Reddiar by executing an  agreement of lease dated 6.1.1994.  This lease deed enabled  him to make alterations in the building. Accordingly he  effected some alterations in the building.  When it was found  that the alterations were effected he received from the Kollam  Municipality an order directing him to demolish the structure  which according to the Municipality was unauthorized.   Against the order of the Municipality respondent No.1  approached the Government. The Government issued an order  dated 22.6.1998 which was annexed as Ext.P5 to the writ  petition, directing the respondent No.1 to submit an  application to the local authority seeking regularization of the  additional structure made by him. Rugmini Ammal, the first  respondent in the Writ Appeal filed a writ petition. The  contention raised by her was that there was no lease  agreement and that the construction was unauthorized. It was  stated that the construction cannot be legalized on other  grounds.       3.      Respondent No.1 filed a counter-affidavit. Along with  counter-affidavit photocopy of the agreement of lease dated  6.1.1994 was annexed.  Thereafter Rugmini Ammal filed CMP  No.35930 of 1998. The contentions taken in the CMP was that  the purported agreement of lease is a forged document.  It was  further stated that she sought the opinion of Professor B.B.  Kashyap, a renowned handwriting and finger print expert.   The signatures in the purported lease agreement, Exh. R4(a)  was compared with the admitted signatures of Durairaj  Reddiar in Ext. P7.  The expert gave his opinion, the copy of

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which was produced as Exh.P18. According to it the  signatures in Exh.R4(a) did not tally with the admitted  signatures. Hence the handwriting expert was of the opinion  that the five disputed signatures were not written by the writer  of the admitted signatures.       4.      A counter-affidavit was filed in CMP No.35930 of 1998.   In the counter-affidavit, it was stated that Exh. R4(a) was  produced before the Government and Exh. P5 order itself goes  to show that this was produced before the Government.  The  fabrication of Exh.R4(a) was denied.  A reply affidavit was filed  in which Rugmini Ammal denied the execution of certain  documents signed by Reddiar and produced by the appellant  in the writ appeal. The prayer in CMP No.35930 of 1998 was  to conduct enquiry into the production of Exh.R4(a) forged  document and made a complaint thereof and forward it to the  Magistrate of the First Class having jurisdiction.

5.      Learned Single Judge relied on the opinion given by the  handwriting expert and prima facie came to the conclusion  that Exts.R4(a), R4(e), R4(i) and R4(j) were fabricated and  hence there is a reasonable likelihood to establish the offences  punishable under Sections 463, 471, 475 and 476 of the  Indian Penal Code, 1860 (in short the \021IPC\022). The learned Single  Judge directed the Registrar of the Court to make a complaint  for the purpose in writing and send it to the Magistrate of the  First Class having jurisdiction.  Against that order the writ  appeal was filed.       6.      Stand of the appellant before the High Court was that  proceedings under Section 340 of the Code of Criminal  Procedure, 1973 (in short the \021Cr.P.C.\022) cannot be initiated  because there was no allegation that the fabrication was made  after the document was produced. Certain other stands were  also taken with which we are not very much concerned.        7.      Stand of the respondents in the writ appeal was that the  writ appeal was not maintainable and Section 341 of Cr.P.C.  does not provide for an order passed by the High Court.  It was  submitted that Section 340 Cr.P.C. has been rightly initiated.   The High Court was of the view that though Section 341  Cr.P.C. does not provide for an appeal from an order passed  under Section 340 Cr.P.C. it does not mean that there was no  other provision by which appeal cannot be filed.  In fact it was  held that Section 5 of the Kerala High Court Act provides for  such an appeal. Reference in this context was made to a Five  Judge Bench decision of  the High Court in K.S. Dass v. State  of Kerala [1992 (2) KLT 358]. Reference was also made to some  other full Bench judgments.         8.      Coming to the question about the applicability of Section  340 to the facts of the case it was held that stage for initiation  of the proceeding, if any, under Section 340 Cr.P.C. had not  come.  Reference was made to a decision of this Court in  Schida Nand Singh and Anr. v. State of Bihar and Anr.  [AIR  1998 SC 1121].  Therefore, it was held that initiation of the  proceeding under Section 340 Cr.P.C. was without  jurisdiction.  The writ appeal was accordingly allowed.       9.      Learned counsel for the appellant submitted that there is  a conflict in view between the decision in Sachida Nand\022s case  (supra) and Surjit Singh and Ors. v. Balbir Singh (1996 (3)  SCC 533). 10.     Learned counsel for the respondents on the other hand  supported the order of the High Court.

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   11.     At this juncture it is to be noted that in view of the  conflict of language between two decisions of this Court each  rendered by a Bench of three learned Judges in Sachida  Nand\022s case (supra) and Surjit Singh\022s case (supra) regarding  interpretation of Section 195(1)(b)(ii) Cr.P.C. the matter was  placed before a five-judge Bench in Iqbal Singh Marwah v.  Meenakshi Marwah [2005 4) SCC 370].  After referring to the  provisions contained in Sections 190, 195(1)(b)(ii) and 340  Cr.P.C. it was held that the decision in Sachida Nand\022s case  (supra) correctly decided and the view taken is the correct  view.  It was, inter alia, observed as follows:    \02319.         As mentioned earlier, the words \023by a  party to any proceeding in any court\024  occurring in Section 195(1)( c ) of the old Code  have been omitted in Section 195(1)( b )( ii )  CrPC. Why these words were deleted in the  corresponding provision of the Code of  Criminal Procedure, 1973 will be apparent  from the 41st Report of the Law Commission  which said as under in para 15.39:  \02315.39. The purpose of the section is to  bar private prosecutions where the  course of justice is sought to be perverted  leaving to the court itself to uphold its  dignity and prestige. On principle there is  no reason why the safeguard in clause (c)  should not apply to offences committed  by witnesses also. Witnesses need as  much protection against vexatious  prosecutions as parties and the court  should have as much control over the  acts of witnesses that enter as a  component of a judicial proceeding, as  over the acts of parties. If, therefore, the  provisions of clause (c) are extended to  witnesses, the extension would be in  conformity with the broad principle which  forms the basis of Section 195.\024  20. Since the object of deletion of the words  \023by a party to any proceeding in any court\024  occurring in Section 195(1)(c) of the old Code is  to afford protection to witnesses also, the  interpretation placed on the said provision in  the earlier decisions would still hold good.   

21. Section 190 CrPC provides that a  Magistrate may take cognizance of any offence  (a) upon receiving a complaint of facts which  constitute such offence, (b) upon a police  report of such facts, and (c) upon information  received from any person other than a police  officer, or upon his own knowledge, that such  offence has been committed. Section 195 CrPC  is a sort of exception to this general provision  and creates an embargo upon the power of the  court to take cognizance of certain types of  offences enumerated therein. The procedure  for filing a complaint by the court as  contemplated by Section 195(1) CrPC is given  in Section 340 CrPC and sub-sections (1) and  (2) thereof are being reproduced below:  \023340. Procedure in cases mentioned in  Section 195 .\027(1) When, upon an

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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 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,\027  (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 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 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.  Section 341 CrPC provides for an appeal to  the court to which such former court is  subordinate within the meaning of sub- section (4) of Section 195, against the  order refusing to make a complaint or  against an order directing filing of a  complaint and in such appeal the superior  court may direct withdrawal of the  complaint or making of the complaint.  Sub-section (2) of Section 343 lays down  that when it is brought to the notice of a  Magistrate to whom a complaint has been  made under Section 340 or 341 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.   

23. In view of the language used in Section  340 CrPC the court is not bound to make a  complaint regarding commission of an  offence referred to in Section 195(1)(b), as  the section is conditioned by the words  \023court is of opinion that it is expedient in  the interests of justice\024. This shows that

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such a course will be adopted only if the  interest of justice requires and not in every  case. Before filing of the complaint, the  court may hold a preliminary enquiry and  record a finding to the effect that it is  expedient in the interests of justice that  enquiry should be made into any of the  offences referred to in Section 195(1)(b).  This expediency will normally be judged by  the court by weighing not the magnitude of  injury suffered by the person affected by  such forgery or forged document, but  having regard to the effect or impact, such  commission of offence has upon  administration of justice. It is possible that  such forged document or forgery may  cause a very serious or substantial injury  to a person in the sense that it may  deprive him of a very valuable property or  status or the like, but such document may  be just a piece of evidence produced or  given in evidence in court, where  voluminous evidence may have been  adduced and the effect of such piece of  evidence on the broad concept of  administration of justice may be minimal.  In such circumstances, the court may not  consider it expedient in the interest of  justice to make a complaint. The broad  view of clause (b)(i), as canvassed by  learned counsel for the appellants, would  render the victim of such forgery or forged  document remediless. Any interpretation  which leads to a situation where a victim  of a crime is rendered remediless, has to  be discarded.  There is another consideration which has to be  kept in mind. Sub-section (1) of Section 340  CrPC contemplates holding of a preliminary  enquiry. Normally, a direction for filing of a  complaint is not made during the pendency of  the proceeding before the court and this is  done at the stage when the proceeding is  concluded and the final judgment is rendered.  Section 341 provides for an appeal against an  order directing filing of the complaint. The  hearing and ultimate decision of the appeal is  bound to take time. Section 343(2) confers a  discretion upon a court trying the complaint to  adjourn the hearing of the case if it is brought  to its notice that an appeal is pending against  the decision arrived at in the judicial  proceeding out of which the matter has arisen.  In view of these provisions, the complaint case  may not proceed at all for decades specially in  matters arising out of civil suits where  decisions are challenged in successive  appellate fora which are time-consuming. It is  also to be noticed that there is no provision of  appeal against an order passed under Section  343(2), whereby hearing of the case is  adjourned until the decision of the appeal.  These provisions show that, in reality, the  procedure prescribed for filing a complaint by  the court is such that it may not fructify in the

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actual trial of the offender for an unusually  long period. Delay in prosecution of a guilty  person comes to his advantage as witnesses  become reluctant to give evidence and the  evidence gets lost. This important  consideration dissuades us from accepting the  broad interpretation sought to be placed upon  clause(b)(ii).    25. An enlarged interpretation to Section  195(1)(b)(ii), whereby the bar created by the  said provision would also operate where after  commission of an act of forgery the document  is subsequently produced in court, is capable  of great misuse. As pointed out in Sachida  Nand Singh 2 after preparing a forged  document or committing an act of forgery, a  person may manage to get a proceeding  instituted in any civil, criminal or revenue  court, either by himself or through someone  set up by him and simply file the document in  the said proceeding. He would thus be  protected from prosecution, either at the  instance of a private party or the police until  the court, where the document has been filed,  itself chooses to file a complaint. The litigation  may be a prolonged one due to which the  actual trial of such a person may be delayed  indefinitely. Such an interpretation would be  highly detrimental to the interest of the society  at large.    26. Judicial notice can be taken of the fact  that the courts are normally reluctant to direct  filing of a criminal complaint and such a  course is rarely adopted. It will not be fair and  proper to give an interpretation which leads to  a situation where a person alleged to have  committed an offence of the type enumerated  in clause (b)(ii) is either not placed for trial on  account of non-filing of a complaint or if a  complaint is filed, the same does not come to  its logical end. Judging from such an angle will  be in consonance with the principle that an  unworkable or impracticable result should be  avoided. In Statutory Interpretation by Francis  Bennion (3rd Edn.), para 313, the principle  has been stated in the following manner:  

\023The court seeks to avoid a construction  of an enactment that produces an  unworkable or impracticable result,  since this is unlikely to have been  intended by Parliament. Sometimes,  however, there are overriding reasons  for applying such a construction, for  example, where it appears that  Parliament really intended it or the  literal meaning is too strong.\024            In view of the discussion made above, we  are of the opinion that Sachida Nand Singh 2  has been correctly decided and the view taken  therein is the correct view. Section 195(1)(b)(ii)  CrPC would be attracted only when the

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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.\024   12.     The above position was highlighted in Iqbal Singh  Marwah v. Meenakshi Marwah (supra).   13.     The High Court was, therefore, right in placing reliance  on Sachida Nand\022s case (supra).     14.     The appeal is, therefore, without merit and is, therefore,  dismissed. There will be no order as to costs.