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CASE NO.: Appeal (crl.)  402 of 2005

PETITIONER: Iqbal Singh Marwah & Anr.

RESPONDENT: Meenakshi Marwah & Anr.

DATE OF JUDGMENT: 11/03/2005

BENCH: R.C.LAHOTI CJI & B.N.AGRAWAL & HOTOI KHETOHO SEMA & G.P.MATHUR & P.K.BALASUBRAMANYAN   

JUDGMENT: JUDGMENT

(Arising out of Special Leave Petition (Criminal ) No. 4111/2000) (With Criminal Appeal Nos. 904/1998 & 1069-1070/1998)

DELIVERED BY: G.P.MATHUR, J  

G. P. MATHUR, J.  

1.      Leave granted in Special Leave Petition (Crl) No.4111 of 2000.

2.      In view of conflict of opinion between two decisions of this Court  each rendered by a bench of three learned Judges in Surjit Singh vs. Balbir  Singh 1996 (3) SCC 533 and Sachida Nand Singh vs. State of Bihar 1998  (2) SCC 493, regarding interpretation of Section 195(1)(b)(ii) of Code of  Criminal Procedure 1973 (for short ’Cr.P.C.’), this appeal has been placed  before the present Bench.

3.    The facts of the case may be noticed in brief.  The appellant nos.1 and 2  are real brothers of Mukhtar Singh Marwah, while respondent nos.1 and 2  are his widow and son respectively. Mukhtar Singh Marwah died on  3.6.1993.   The appellant no.1 filed Probate Case No.363 of 1993 in the  Court of District Judge, Delhi, for being granted probate of the will allegedly  executed by Mukhtar Singh Marwah on 20.1.1993.  The petition was  contested by the respondents on the ground that the will was forged.  On  their application the appellant no.1 filed the original will in the Court of  District Judge on 10.2.1994.  Thereafter, the respondents moved an  application under Section  340 Cr.P.C. requesting the Court to file a criminal  complaint against appellant no.1 as the will set up by him was forged.   A  reply to the said application was filed on 27.7.1994 but the application has  not been disposed of so far.   Thereafter, the respondents filed a criminal  complaint in May 1996 in the Court of Chief Metropolitan Magistrate, New  Delhi, for prosecution of the appellants and their mother Smt. Trilochan  Kaur Marwah under Sections 192, 193, 463, 464, 465, 467, 469, 471, 499  and 500 IPC on the ground that the will of Mukhtar Singh Marwah set up by  the appellants is a forged and fictitious document.  It is stated in the  complaint that though Mukhtar Singh Marwah was an educated person, but  the will bears his thumb impression. He had accounts in Bank of Tokyo and  Standard Chartered Bank which he used to operate by putting his signature.    Under the will he had completely divested the respondents, who were his  widow and son respectively and also a daughter who was spastic and had  bequeathed his entire property to his mother and after her death to his

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brothers and sisters.   The appellant no.1 Iqbal Singh Marwah was appointed  as the sole executor and trustee of the will.   Before the learned Metropolitan  Magistrate, the complainant examined six witnesses including two persons  from the banks who brought the relevant records and deposed that Mukhtar  Singh Marwah used to operate the accounts by putting his signature.   The  learned Metropolitan Magistrate held that as the question whether the will  was a genuine document or a forged one, was an issue before the District  Judge in the probate proceedings where the will had been filed, Sections 195  (1)(b)(i) and (ii) Cr.P.C. operated as a bar for taking cognizance of the  offences under Sections 192, 193, 463, 464, 471, 475 and 476 IPC.   The  complaint was accordingly dismissed by the order dated 2.5.1998.   The  respondents thereafter filed a criminal revision against the order of the  learned Metropolitan Magistrate, before the Sessions Judge, who, relying  upon Sachida Nand Singh vs. State of Bihar 1998 (2) SCC 493, held that  the bar contained in Section  195 (1)(b)(ii) Cr.P.C. would not apply where  forgery of a document was committed before the said document was  produced in Court.  The revision petition was accordingly allowed and the  matter was remanded to the Court of Metropolitan Magistrate for proceeding  in accordance with law.   The appellants challenged the order passed by the  learned Additional Sessions Judge by filing a petition under Section  482  Cr.P.C. before Delhi High Court, but the same was dismissed on 15.9.2000  following the law laid down in Sachida Nand Singh.  Feeling aggrieved,  the appellants have preferred the present appeal in this Court.

4.      Sub-section (1) of Section 195 Cr.P.C., which according to the  appellants, creates a bar in taking cognizance on the complaint filed by the  respondents, 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 \026

(a) (i)  of any offence punishable under Sections 172 to 188  (both inclusive) of the Indian Penal Code (45 of 1860),  or  

(ii)    of any abetment of, or 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  sub-clause (i) or sub-clause (ii),

except on the complaint in writing of that Court, or of some

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other Court to which that Court is subordinate.            5.      The principal controversy revolves round the interpretation of 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) of sub-section (1) of Section  195 Cr.P.C.  The  appellants place reliance on the following observations made in para 10 of  the report in Surjit Singh vs. Balbir Singh :  

       "It would thus be clear that for taking cognizance of an  offence, the document, the foundation of forgery, if  produced before the court or given in evidence, the bar of  taking cognizance under Section 195(1)(b)(ii) gets  attracted and the criminal court is prohibited from taking  cognizance of offence unless a complaint in writing is  filed as per the procedure prescribed under Section 340  of the Code by or on behalf of the Court.   The object  thereby is to preserve purity of the administration of  justice and to allow the parties to adduce evidence in  proof of certain documents without being compelled or  intimidated to proceed with the judicial process.   The bar  of Section 195 is to take cognizance of the offence  covered thereunder."                           

to contend that once the document is produced or given in evidence in Court,  the taking of cognizance on the basis of private complaint is completely   barred.    

       In Sachida Nand Singh after analysis of the relevant provisions and  noticing a number of earlier decisions (but not Surjit Singh), the Court  recorded its conclusions in paragraphs 11, 12 and 23 which are being  reproduced below :  

"11.    The scope of the preliminary enquiry envisaged in  Section 340(1) of the Code is to ascertain whether any  offence affecting administration of justice has been  committed in respect of a document produced in court or  given in evidence in a proceeding in that Court.  In other  words, the offence should have been committed during  the time when the document was in custodia legis.

12.     It would be a strained thinking that any offence  involving forgery of a document if committed far outside  the precincts of the Court and long before its production  in the Court, could also be treated as one affecting  administration of justice merely because that document  later reached the court records.  

23.     The sequitur of the above discussion is that the bar  contained in Section 195(1)(b)(ii) of the Code is not  applicable to a case where forgery of the document was  committed before the document was produced in a  court."    

6.      On a plain reading clause (b)(ii) of sub-section (1) of Section  195 is  capable of two interpretations.  One possible interpretation is that when an  offence described in Section 463 or punishable under Section  471, Section  475 or Section  476 IPC is alleged to have been committed in respect of a  document which is subsequently produced or given in evidence in a  proceeding in any Court, a complaint by the Court would be necessary.   The  other possible interpretation is that when a document has been produced or  given in evidence in a proceeding in any Court and thereafter an offence

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described as aforesaid is committed in respect thereof, a complaint by the  Court would be necessary.   On this interpretation if the offence as described  in the Section  is committed prior to production or giving in evidence of the  document in Court, no complaint by Court would be necessary and a private  complaint would be maintainable. The question which requires consideration  is which of the two interpretations should be accepted having regard to the  scheme of the Act and object sought to be achieved.  

7.      Dr. A.M. Singhvi, learned senior counsel for the appellants, submitted  that the purpose of Section  195 is to bar private prosecution where the cause  of justice is sought to be perverted leaving it to the Court itself to uphold its  dignity and prestige.  If a very restricted interpretation is given to Section  195(1)(b)(ii) Cr.P.C., as held in Sachida Nand Singh, the protection  afforded by the provision will be virtually reduced to a vanishing point,  defeating the very object of the enactment.  The provision, it is urged,  does  not completely bar the prosecution of a person who has committed an  offence of the type described thereunder, but introduces a safeguard in the  sense that he can be so prosecuted only on the complaint of the Court where  the document has been produced or given in evidence or of some other Court  to which that Court is subordinate.  Learned counsel has also submitted that  being a penal provision, giving a restricted meaning as held in Sachida  Nand Singh, would not be proper as a person accused of having committed  an offence would be deprived of the protection given to him by the  legislature.  He has also submitted that on the aforesaid view there is a  possibility of conflicting findings being recorded by the civil or revenue  Court where the document has been produced or given in evidence and that  recorded by the criminal Court on the basis of private complaint and  therefore an effort should be made to interpret the Section  in the manner  which avoids such a possibility.

8.      Shri Y.P. Narula, learned counsel for the respondents has submitted  that the language of the Section  is clear and there being no ambiguity  therein, the only possible manner in which it can be interpreted is that the  complaint by a Court would be necessary when the offences enumerated in  the Section  are committed at a time when the document has already been  produced or given in evidence in Court i.e. when it is in the proceedings of  the Court.  The provision has to be strictly construed as it creates a bar on  the power of the Court to take cognizance of an offence and any provision  which ousts the jurisdiction of the Court, which it otherwise possesses, must  be strictly construed and cannot be given an enlarged meaning.  Since the  provision deprives a person who is a victim and is aggrieved by the offences  described under Section  463 or punishable under Sections 471, 475 or 476  IPC to initiate a criminal prosecution by filing a complaint, his interest  cannot be overlooked and therefore the provision should not be given an  enlarged meaning, but only a restricted meaning should be given.   Learned  counsel has also submitted that in certain situations where the forgery has  been committed at any time prior to the production or giving in evidence of  the document in Court, it may not at all be possible for such Court to  effectively form an opinion as to whether it is expedient to file a complaint  and that may facilitate the escape of a guilty person.  Shri Narula has also  submitted that in Sachida Nand Singh, the Court has reiterated and has  adopted the same view which has been taken in several earlier decisions of  this Court, and only in Surjit Singh a discordant note has been struck which  is not correct.

9.      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 in Chapter X of the IPC and the heading of the Chapter is \026 ’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 of

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IPC which is headed as \026 ’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 authorized by law to receive such declaration, and also to some  other offences which have a direct co-relation 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 a 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.

10.     Section 195(1) mandates a complaint in writing of the Court for  taking cognizance of the offences enumerated in clauses (b) (i) and (b)(ii)  thereof.   Sections 340 and 341 Cr.P.C. which occur in Chapter XXVI give  the procedure for filing of the complaint and other matters connected  therewith.  The heading of this Chapter is --’Provisions As To Offences  Affecting The Administration Of Justice’.  Though, as a general rule, the  language employed in a heading cannot be used to give a different effect to  clear words of the Section  where there cannot be any doubt as to their  ordinary meaning, but they are not to be treated as if they were marginal  notes or were introduced into the Act merely for the purpose of classifying  the enactments.  They constitute an important part  of the Act itself, and may  be read not only as explaining the Sections which immediately follow them,  as a preamble to a statute may be looked to explain its enactments, but as  affording a better key to the constructions of the Sections which follow them  than might be afforded by a mere preamble.(See Craies on Statute Law, 7th  Ed. Pages 207, 209).   The fact that the procedure for filing a complaint by  Court has been provided in Chapter XXVI dealing with offences affecting  administration of justice, is a clear pointer of the legislative intent that the  offence committed should be of such type which directly affects the  administration of justice, viz., which is committed after the document is  produced or given in evidence in Court.  Any offence committed with  respect to a document at a time prior to its production or giving in evidence  in Court cannot, strictly speaking, be said to be an offence affecting the  administration of justice.

11.     It will be useful to refer to some earlier decisions touching the  controversy in dispute which were rendered on Section  195 of Code of  Criminal Procedure 1908 (for short ’old Code’).  Sub-section (1) (c) of  Section 195 of Old Code read as under:

"Section 195                                     (1)     No Court shall take cognizance -                          (c) Prosecution for certain offences relating to  documents given in evidence. --  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

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Court, or of some other Court to which such Court is  subordinate"           

It may be noticed that language used in Section  195(1)(b)(ii) Cr.P.C.  is similar to the above provision except that the words "by a party to any  proceeding in any Court" occurring therein have been omitted.  We will  advert to the effect of this omission later on.

12.     A Full Bench of Allahabad High Court in Emperor vs. Kushal Pal  Singh  AIR 1931 All 443 considered the scope of the aforesaid provision and  held, that clause (c) of Section 195 applies only to cases where an offence is  committed by a party, as such, to a proceeding to any Court in respect of a  document which has been produced or given in evidence  in such  proceeding. It was held that an offence which has already been committed  by a person who does not become a party till, say, 30 years after the  commission of the offence,  cannot be said to have been committed by a  party within the meaning of clause (c).   A three Judge Bench of this Court  in Patel Lalji Bhai Somabhai vs. The State of Gujarat  1971(2) SCC 376  after examination of the controversy in considerable detail observed that as a  general rule the Courts consider it expedient in the interest of justice to start  prosecutions as contemplated by Section  476  (of the old Code which now  corresponds to Section  340 Cr.P.C.) only if there is a reasonable foundation  for the charge and there is a reasonable likelihood of conviction. The  requirement of a finding as to the expediency is understandable in case of an  offence alleged to have been committed either in or in relation to a  proceeding in that Court in case of offences specified in clause (b) [of the  old Code corresponding to clause (b)(i) Cr.P.C.] because of the close nexus  between the offence and the proceeding.  In case of offences specified in  clause (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 Court approved the view taken by Allahabad High Court in  Emperor vs. Kushal Pal Singh (supra) and held as under in para 7 of the  report :

"(i)  The underlying purpose of enacting Section  195(1)(b) and (c) Section 476 seems to be to control the  temptation on the part of the private parties to start  criminal prosecution on frivolous vexations or  unsufficient 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 or the administration of public justice which is  the direct and immediate object or the victim of these  offences.  As the purity of the proceedings of 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  who might ultimately suffer can persuade the Civil Court  to file complaint.

(ii)  the offences about which the court alone is clothed  with the right to complain 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 proceeding 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.  It, therefore, appears to be more appropriate to  adopt the strict construction of confirming the prohibition  contained in Section 195(1)(c) only to those cases in  which the offences specified therein were committed by a

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party to the proceeding in character as such party.  The  Legislature could not have intended to extend the  prohibition contained in Section 195(1)(c) to the offences  mentioned therein, when committed by a party to a  proceeding in that court prior to his becoming such  party.".      

The court clearly rejected any construction being placed on the  provision by which a document forged before the commencement of the  proceeding in which it may happen to be used in evidence later on, to come  within the purview of Section  195, as that would unreasonably restrict the  right to initiate prosecution possessed by a person and recognized by Section   190 Cr.P.C.  

13.     The aforesaid decision was considered in Raghunath vs. State of U.P.  1973(1) SCC 564.  Here, the accused had obtained sale deed of the property  of a widow by setting up of an imposter and thereafter filed a mutation   application before the Tehsildar  The widow contested the mutation  application on the ground that she had never executed the sale deed and  thereafter filed a criminal complaint under Sections 465, 468 and 471 IPC in  which the accused were convicted.  In appeal, it was contended that the  private complaint was barred by virtue of Section  195(1)(c) Cr.P.C. and the  revenue court alone could have filed the complaint.  The court repelled the  aforesaid contention after relying upon the ratio of Patel Lalji Bhai vs. State  of Gujarat and the private complaint was held to be maintainable.  In Mohan  Lal  vs. State of Rajasthan 1974(3) SCC 628, the above noted two decisions  were relied upon for holding that provisions of Section  195(1)(c) (old Code)  would not be applicable where mutation proceedings were commenced after  a will had been forged.  In Legal Remembrancer, Govt. of West Bengal vs.  Haridas Mundra  1976(1) SCC 555 Bhagwati, J. (as His Lordship then was),   speaking  for a three Judge Bench observed that earlier there was divergence  of opinion in various High Courts, but the same was set at rest by this Court  in Patel Lalji Bhai Somabhai (supra) and approved the view taken therein  that the words of Section  195(1)(c) clearly meant the offence alleged to  have been committed by a party to the proceeding in his character as such  party, i.e. after having become a party to the proceeding, and Sections  195(1)(c), 476 and 476-A (of the old Code) read together indicated beyond  doubt that the legislature could not have intended to extend the prohibition  contained in Section  195(1)(c) to the offences mentioned in the said Section   when committed by a party to a proceeding prior to his becoming such party.  Similar view has been taken in  Mahadev Bapuji Mahajan vs. State of  Maharashtra 1994(3) Supp SCC 748 where the contention that the absence  of a complaint by the revenue court was a bar to taking cognizance by the  criminal court in respect of offences under Sections 446, 468, 471 read with  Section  120-B IPC which were committed even before the start of the  proceedings before the revenue court, was not accepted.  

14.     Dr. Singhvi, learned senior counsel for the appellants, in support of  his contention has placed strong reliance on Gopalkrishna Menon vs. D.  Raja Reddy 1983 (4) SCC 240  which is a decision rendered by a Bench of  two learned Judges.  In this case, the appellants filed a civil suit for refund of  Rs.20,000/- which they claimed to have deposited with the first respondent  and for recovery of certain amount. Along with the plaint the appellants  produced a receipt for Rs.20,000/- in support of their claim.  Thereafter the  first respondent filed a criminal complaint against the appellants alleging  forgery of his signature on the money receipt and thereby commission of  offences punishable under Sections 467 and 471 IPC. The appellants moved  the High Court for quashing of the proceedings on the ground that in  absence of a complaint by the court, the prosecution was barred under  Section 195(1)(b)(ii) Cr.P.C.  The High Court dismissed the petition holding  that Section 463 cannot be construed to include Section 467 IPC as well and,  therefore, the Magistrate was competent to take cognizance on the  complaint.  This Court reversed the view taken by the High Court observing

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that as Section  463 defines the offence of forgery and Section  467 punishes  forgery of a particular category, Section 195(1)(b)(ii) Cr.P.C. would be  attracted  and in the absence of a complaint by the Court the prosecution  would not be maintainable.   After briefly referring to Patel Lalji Bhai  (supra), the Court observed that "not the conclusion but the ratio" of the said  case supported the view taken by it.  The judgment does not show that  applicability of Section 195(1)(b)(ii) was examined with regard to the  question as to whether the alleged forged receipt was prepared before or  after commencement of the civil suit, nor any such principle has been laid  down that the bar would operate even if the forgery was committed prior to  commencement of the proceeding in the civil court.

15.     The other case which is the sheet-anchor of the argument of learned  counsel for the appellants is Surjit Singh vs. Balbir Singh 1996(3) SCC  533.  The facts as stated in paras 1 & 11 of the report show that a criminal  complaint was filed by the respondent under Sections 420, 467, 468, 471  read with 120-B IPC alleging that the appellants had conspired and  fabricated an agreement dated 26.7.1978 and had forged the signature of  Smt. Dalip Kaur and on the basis thereof, they had made a claim to remain  in possession of a house.  The Magistrate took cognizance of the  offence on  27.9.1983.  The appellants thereafter filed a civil suit on 9.2.1984 wherein  they produced the agreement.  It may be noticed that the cognizance by the  criminal Court had been taken much before filing of the Civil Suit wherein  the agreement had been filed.  During the course of discussion, the court not  only noticed Gopalkrishna Menon  (supra), but also quoted extensively from  Patel Lalji Bhai (supra).  Reference was then made to Sanmukh Singh vs.  The King AIR 1950 Privy Council 31 and Sushil Kumar vs.  State of  Haryana  AIR 1988 SC 419 wherein it has been held that the bar of Section   195 would not apply if the original document had not been produced or  given in evidence in Court.  Then comes the passage in the judgment (para  10 of the reports) which we have reproduced in the earlier part of our  judgment. The observations therein should not be understood as laying down  anything contrary to what has been held in Patel Lalji Bhai, but was made in  the context that bar contained in Section 195 (1)(b)(ii) would not be attracted  unless the original document was filed.  It is for this reason that in the very  next paragraph, after observing that the cognizance had been taken prior to  filing of the civil suit and the original agreement in Court, the view taken by  the High Court that the Magistrate could proceed with the trial of the  criminal case was upheld and the appeal was dismissed.  

16.     As mentioned earlier, the words "by a party to any proceeding in any  Court" occurring in Section  195 (1)(c) of the old Code have been omitted in  Section 195(1)(b)(ii) Cr.P.C. Why these words were deleted in the  corresponding provision of Code of Criminal Procedure, 1973 will be  apparent from the 41st report of the Law Commission which said as under in  para 15.39 : "15.39   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."

       Since the object of deletion of the words "by a party to any  proceeding in any Court" 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.

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17.     Section 190 Cr.P.C. 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 Cr.P.C. 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) Cr.P.C. is given in Section 340 Cr.P.C. and  sub-section (1) and (2) thereof are being reproduced below :  

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 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 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 195.

       Section 341 Cr.P.C. 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.   

18.     In view of the language used in Section 340 Cr.P.C. 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 "Court is of  opinion that it is expedient in the interest of justice."  This shows that 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(i)(b).  This expediency will normally be judged by the Court by

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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)(ii), as canvassed  by learned counsel for the appellants, would render the victim of such  forgery or forged document remedyless.  Any interpretation which leads to a  situation where a victim of a crime is rendered remedyless, has to be  discarded.

19.     There is another consideration which has to be kept in mind.  Sub- section (1) of Section 340 Cr.P.C. 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 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).     

20.     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, 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 he highly detrimental  to the interest of society at large.   

21.     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 (Third ed.) para 313, the  principle has been stated in the following manner :

"The court seeks to avoid a construction of an enactment

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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."

       The learned author has referred to Sheffield City Council v. Yorkshire  Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under :

"Parliament is taken not to intend the carrying out of its  enactments to be unworkable or impracticable, so the  court will be slow to find in favour of a construction that  leads to these consequences.   This follows the path taken  by judges in developing the common law. ’\005 the  common law of England has not always developed on  strictly logical lines, and where the logic leads down a  path that is beset with practical difficulties the courts  have not been frightened to turn aside and seek the  pragmatic solution that will best serve the needs of  society."

       In S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2  All ER 91, while interpreting a provision in the Finance Act , 1972, Lord  Denning observed that if the literal construction leads to impracticable  results, it would be necessary to do little adjustment so as to make the  section workable. Therefore, in order that a victim of a crime of forgery,  namely, the person aggrieved is able to exercise his right conferred by law to  initiate prosecution of the offender, it is necessary to place a restrictive  interpretation on clause (b)(ii).  

22.     Dr. Singhvi has also urged that since we are dealing with a penal  provision it should be strictly construed and in support of his proposition he  has placed reliance upon a Constitution Bench decision in Tolaram Relumal  vs. State of Bombay, 1955(1) SCR 158, wherein it was  held that it is well  settled rule of construction of penal statutes that if two possible and  reasonable constructions can be put upon a penal provision, the Court must  lean towards that construction which exempts the subject from penalty rather  than the one which imposes penalty and it is not competent for the Court to  stretch out the meaning of expression used by the legislature in order to  carry out the intention of the legislature.  The contention is that since Section   195(1)(b)(ii) affords protection from private prosecution, it should not be  given a restrictive interpretation to curtail its scope.   We are unable to  accept such broad proposition as has been sought to be urged.  In Craies on  Statute Law (1971 ed. \026 Chapter 21), the principle regarding penal  provisions has been stated as under :

"But penal statutes must never be construed so as to  narrow the words of the statute to the exclusion of cases  which those words in their ordinary acceptations would  comprehend. \005\005\005\005. But where the thing is brought  within the words and within the spirit, there a penal  enactment is to be construed, like any other instrument,  according to the fair commonsense meaning of the  language used, and the court is not to find or make any  doubt or ambiguity in the language of a penal statute,  where such doubt or ambiguity would clearly not be  found or made in the same language in any other  instrument."

       In Lalita Jalan vs. Bombay Gas Co. 2003 (6) SCC 107 this question  was examined in considerable detail and it was held that the principle that a

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statute enacting an offence or imposing a penalty is to be strictly construed is  not of universal application which must necessarily be observed in every  case.  The Court after referring to Murlidhar Meghraj Loya vs. State of  Maharasthra AIR 1976 SC 1929, Kisan Trimbak Kothula vs. State of  Maharashtra AIR 1977 SC 435, Superintendent and Remembrancer of Legal  Affairs to Govt. of West Bengal vs. Abani Maity AIR 1979 SC 1029 and  State of Maharashtra vs. Natwarlal Damodardas Soni AIR 1980 SC 593 held  that the penal provisions should be construed in a manner which will  suppress the mischief and advance the object which the legislature had in  view.

23.     That apart, the section which we are required to interpret is not a penal  provision but is part of a procedural law, namely, Code of Criminal  Procedure which elaborately gives the procedure for trial of criminal cases.    The provision only creates a bar against taking cognizance of an offence in  certain specified situations except upon complaint by Court. A penal statute  is one upon which an action for penalties can be brought by a public officer  or by a person aggrieved and a penal act in its wider sense includes every  statute creating an offence against the State, whatever is the character of the  penalty for the offence.   The principle that a penal statute should be strictly  construed, as projected by the learned counsel for the appellants can,  therefore, have no application here.    

24.     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.  

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

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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."  

25.     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.  

26.     In the present case, the will has been produced in the Court  subsequently.  It is nobody’s case that any offence as enumerated in Section   195(b)(ii) was committed in respect to the said will after it had been  produced or filed in the Court of District Judge.  Therefore, the bar created  by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no  embargo on the power of the Court to take cognizance of the offence on the  basis of the complaint filed by the respondents.   The view taken by the  learned Additional Sessions Judge and the High Court is perfectly correct  and calls for no interference.  

27.     The appeal is, accordingly, dismissed.   Criminal Appeal No. 904/1998

28.   This appeal has been preferred by the complainant against the judgment  and order dated 6.2.1998 of the Madras High Court by which the criminal  revision petition preferred by the second respondent Ramaraj was allowed  and he was acquitted of the charges under Section 467 and 471 IPC on the  ground that in view of the bar created by Section 195(1)(b)(ii) Cr.P.C., the  learned Magistrate could not have taken cognizance on the police report.    According to the case of the prosecution, the sale deed had been forged  earlier and thereafter the same was filed in the Civil Court.   For the reasons  already discussed, the appeal is allowed and the judgment of the High Court  is set aside.   The criminal revision petition filed by the second respondent  shall be heard and decided by the High Court afresh and in accordance with  law.

Criminal Appeal Nos. 1069-1070 of  1998

30.     The High Court in the impugned order dismissed the petition filed by  the appellant under Section 482 Cr.P.C. relying upon the decision of this  Court in Sachida Nand Singh.   In view of the reasons already discussed,  the appeals lack merit and are hereby dismissed.