1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1436   OF 2009 [Arising out of SLP(Crl.) No. 1954/2007]

  AJITKUMAR NAROTTAMDAS PANDYA ... APPELLANT(S)

:VERSUS:

  STATE OF GUJARAT ... RESPONDENT(S)

O R D E R

1. Leave granted.

2. Interpretation of the provisions of Section 195(1)(d)(ii) of the Code of Criminal  

Procedure, 1973, (hereinafter called and referred to for the sake of brevity as 'the Code')  

falls for our consideration in this appeal. The said question arises in the following factual  

matrix:

3. The  appellant  and  respondent  No.2  are  step  brothers.  Appellant's  mother  

Maniben was the second wife of Narottamdas Pandya. Respondent No.2, admittedly, is  

his  son  through  the  first  wife.  Maniben  allegedly  executed  a  Will  in  favour  of  the

2

appellant herein.  She died on 20.8.1995.  

4. The  appellant  filed  a  suit  against  the  second  respondent  and  Gunuantray  

Narottamdas Pandya,  Chandrakant Narottamdas Pandya,  Kirti  Kumar Narottamdas  

Pandya and Naljnchandra Narottamdas Pandya, inter alia for a declaration of the title  

relying on or on the basis of the said Will.  In the plaint of the said suit it was contended  

that the defendants therein had been threatening the plaintiff that they would snatch  

away the possession and such threat was given by defendants No. 2 to 4 on 17.7.96.   

5. The Will dated 10.7.1995 was filed along with the plaint together with as many  

as 28 other documents.  The said Will  finds place at Sl. No. 17 of the list of documents  

filed with the plaint.  An interim injunction was granted.  An application for vacating  

the said interim injunction was filed by the respondents – defendants.  

6. By an order dated 20.9.2006 the learned Civil Court opining that the plaintiff  

had proved a prima facie case and furthermore the balance of convenience is  in his  

favour and he being in exclusive possession of the property in question,  an order of  

injunction was granted.  It is, however, not in dispute that immediately thereafter, an  

attempt was made by respondent No.2 to lodge a first information report. A complaint  

petition,  however,  was  filed  before  the  Judicial  Magistrate,  Fist  Class,  Petlad  on  

21.9.1996 which was marked as Criminal Case No. 966/96 against the appellant herein  

and 3 others, for commission of alleged offences under Sections 467, 472, 474, 452, 420,  

406 and 114 of the I.P.C.

3

7. Several proceedings were initiated by the appellant questioning the correctness  

or otherwise of  the orders  passed thereupon at  different  stages.   We may,  however,  

notice that the High Court of Gujarat by an order dated 3.12.1997 granted stay of the  

proceedings  till  disposal  of  the  Criminal  Case  No.  966/96.   It  is  furthermore not  in  

dispute that an opinion of the handwriting expert was obtained and one Mrs. D.J. Shah,  

Assistant Examiner of Questioned Documents, Ahmedabad  opined as under:  

“The person who wrote the blue encircled natural signatures marked N1  to N13 did not writ the red encircled disputed signature marked D.”   

8. It  furthermore  appears  from  the  record  that  the  appeal  preferred  by  the  

appellant thereagainst has been dismissed.  

9. Learned counsel appearing on behalf of the appellant would contend that as  

the said Will was filed on 22.9.1996, Section 195(1)(b)(ii) is squarely attracted. Section  

195(1)(b)(ii) of the Code reads as under:

“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) ............... (b)  (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.”

10. The contention raised by the learned counsel on behalf of the appellant does  

not necessitate a detailed consideration as the matter is squarely covered by a decision of

4

this Court in  Sachida Nand Singh v.  State of Bihar, 1998(2) SCC 493 and  Mahadev  

Bapuji Mahajan (Dead) and Ors. v.  State of Maharashtra, 1994 Supple. (3) SCC 748.  

The question now has been given a quietus by a Constitution Bench of this Court in  

Iqbal  Singh Marwah and Anr. v.  Meenakshi  Marwah and Anr.,  2005 (4)  SCC 370,  

wherein it was categorically held as under:

“32. Coming to the last contention that an effort should be made to  avoid conflict of findings between the civil and criminal Courts, it is  necessary to point out that the standard of proof required in the two  proceedings are entirely different.  Civil cases are decided on the basis  of  preponderance  of  evidence  while  in  a  criminal  case  the  entire  burden lies on the prosecution and proof beyond reasonable doubt has  to be given.  There is neither any statutory provision nor any legal  principle that the findings recorded in one proceeding may be treated  as final or binding in the other, as both the cases have to be decided on  the basis of the evidence adduced therein.  While examining a similar  contention  in  an  appeal  against  an  order  directing  filing  of  a  complaint under Section 476 of old Code, the following observations  made by a Constitution Bench in M.S. Sheriff vs. State of Madras AIR  1954 SC 397 give a complete answer to the problem posed :

'(15) As between the civil and the criminal proceedings we are of  the  opinion  that  the  criminal  matters  should  be  given  precedence.  There is some difference of opinion in the High Courts of India on this  point.  No hard and fast rule can be laid down but we do not consider  that the possibility of conflicting decisions in the civil  and criminal  Courts  is  a  relevant  consideration.   The  law  envisages  such  an  eventuality when it expressly refrains from making the decision of one  Court  binding  on  the  other,  or  even  relevant,  except  for  certain  limited  purposes,  such as  sentence  or  damages.   The  only  relevant  consideration here is the likelihood of embarrassment.

(16)  Another  factor  which weighs  with us  is  that  a  civil  suit  often  drags on for years and it is undesirable that a criminal prosecution  should  wait  till  everybody  concerned  has  forgotten  all  about  the  crime.  The public interests demand that criminal justice should be  swift and sure; that the guilty should be punished while the events are  still fresh in the public mind and that the innocent should be absolved  as  early  as  is  consistent  with  a  fair  and  impartial  trial.   Another  reason is that it is undesirable to let things slide till memories have  grown too dim to trust.

5

This,  however,  is  not  a  hard and fast  rule.   Special  considerations  obtaining in any particular case might make some other course more  expedient and just.  For example, the civil case or the other criminal  proceeding may be so near its end as to make it inexpedient to stay it  in order to give precedence to a prosecution ordered under S. 476.  But in this case we are of the view that the civil suits should be stayed  till the criminal proceedings have finished.'  

33. In view of the discussion made above, we are of the opinion  that  Sachida  Nand Singh has  been correctly  decided and the  view  taken therein is the correct view.  Section 195(1)(b)(ii) Cr.P.C. would  be attracted only when the offences enumerated in the said provision  have been committed with respect  to a document after it  has been  produced or given in evidence in a proceeding in any Court i.e. during  the time when the document was in custodia legis.”

11. However, in Iqbal Singh Marwah (supra), as the 'Will' was produced later on,  

Section 195(1)(b)(ii) was applicable.  

12. In view of the aforementioned authoritative pronouncements of this Court, we  

are  of  the  opinion  that  no  case  has  been  made  out  for  our  interference  with  the  

impugned order. The appeal is dismissed.

13. However, it goes without saying that we have not entered into the merit of the  

matter and all contentions of the parties in regard thereto, including the irregularity or  

illegality committed by the learned Magistrate in taking cognizance, shall remain open.   

..........................J (S.B. SINHA)

6

..........................J   (DEEPAK VERMA)   NEW DELHI,   AUGUST 6, 2009.