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PETITIONER: PATEL LALJIBHAI SOMABHAI

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT07/05/1971

BENCH: DUA, I.D. BENCH: DUA, I.D. SIKRI, S.M. (CJ) REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1935            1971 SCR  834  1971 SCC  (2) 376

ACT: Code  of Criminal Procedure, 1898-Section  195(1)(c),  Scope of.

HEADNOTE: The  appellant had filed a suit for the recovery of  certain amount on the basis of a forged cheque.  A private complaint was  filed in the Court of the Judicial  Magistrate  against the  appellant  and another person for  offences  punishable under sections 467 and 471 Penal Code.  The Magistrate found prima  facie  evidence that the appellant  had  fraudulently used in the Civil Suit a forged cheque, and committed him to the  Sessions for trial.  The appellant raised an  objection that  in view of section 195(i)(C) of the Code  of  Criminal Procedure  no cognizance of the offence could be taken on  a private  complaint.   The High Court upheld  the  commitment order.  On the-scope and effect of section 195(i)(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 sections 467 and 471 Penal Code, HELD:The  words  "to have been committed by a party  to  any proceeding 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 as such party, that is, after having become a party to the proceeding.  Sections 195(1)(C),  476  and 476A Code of Criminal  Procedure,  read together  indicate  that  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  be- coming  such  party.   The offences about  which  the  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  has  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]

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In  this  case the offence under section 471 Penal  Code  is clearly  covered  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 evidence that documents in question  were forged by a party to the earlier proceeding in his character as  such  a party; in other words after the  suit  had  been instituted. [847B] Emperor v. Kushal Pal Singh, I.L.R. [1953] AU. 804 approved. State of Gujarat v.  Ali Bin Rajak, 9 Guj.  Law Reporter  1, Emperor v. Mallappa, A.I.R. 1937 Bom. 14, Har Prasad v. Hans Rai,  A.I.R. 1966 All. 124, Vivekanand V. State A.I.R.  1969 AU.  189,  Harinath  Singh v. State 1964 All.   L.  J.  467, Basir-ul-Haq v. State of West Bengal, A.I.R. 1953 S.C.  293, Krishna  Nair v. State of Kerala, (1962) 1 Crl.  L.  J,  340 and State v. Bhikubhai, A.I.R. 1965 Guj. 70, referred to. 835

JUDGMENT: CRIMINAL  APPELLATE Jurisdictionally : Criminal  Appeal  No. 169 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. Dholakia and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by J,-This appeal with certificate under Art. 134(1)(c.) of the Constitution  dated  against the judgment and order  of  the Gujuat High Court in Criminal reference made by the Sessions Jung, Ahmedabad, rains 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 demon in the State of Gujarat v.  Ali  Bin Rajak(1)  has boon 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 All  Bin  Rajak(2).   Certificate  of fitness  for appeal to this Court was, however.  granted  by the learned Judge. The  question raised relates to the scope and effect  of  s. 195(1)(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 there to 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  stated, The  appellant Patel Laljibhai Somabhai instituted a:  civil suit  (No. 11 of 1964) in the court of Joint Civil Judge  at Dholka  against  Vora Safakat  Husaian  Yusufali  (hereafter called the complainmant) and his brother Vora Ahmed  Huseian Yusufali  for the recovery of Rs 2,000  on the basis,  of  a cheque  dated November 22, 1963 (alleged to have  been  been given to him on June 27, 1963) under: the  signature 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, dismis  on  January 30,,1965 by ,the Joint,, civil  Judge, Dholka.  The Court did not believe the (1)  9 Guj.  Law Reporter I.

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836 plaintive’s  story about the cheque.  On November  16,  1965 the  complainant  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  Akbarali (accused  no.  1)  is described  in  the complaint as the  complainant’s  sister’s husband.    It  was  averred  in  the  complaint  that   the complainant’s elder brother Ahmedbhai had started a business in milk in Ahmedabad and accused no.  I 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.  I 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. 1. 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. November 30, 1962 the  defendants in the suit at the instance of accused no.  I started a milk shop  at  Jamalpur  and they used to stay at  the  house  of accused  no.  I who was employed in the Mercantile Bank  and through  whom  an account was opened with that bank  in  the name of the defendants.  Accused no.  I used to utilise this account  for  himself and his brothers.  Being  a  relative, accused  no.   I  was trusted by  the  complainant  and  his brother  and they used to act according to the  instructions of  accused no. 1. In June, 1962 accused no.  I had come  to Limbdi  and  asked  for  a loan of  Rs.  15,0001-  from  the complainant’s  father.  But this request was  declined  with the result that accused no. I got annoyed and threatened him with   ruinous  consequence.   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. 1, 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 complainant’s signature  and the  appellant  utilised  that cheque.   The  appellant  and accused  no.  I were, on these averments,  alleged  to  have forged  the cheque.  Civil Suit No. 11/64 was then filed  in which  this cheque was used knowing the same to  be  forged. The Magistrate found 837 prima facie evidence that the appellant (accused No. 2)  had fraudulently  used  in the civil suit the forged  cheque  in question.   The Magistrate also found prima  facie  evidence that  accused  no.  I 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

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but  following  the  decision of the Bombay  High  Court  in Emperor v. Mallappa(1) 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 of  Ali  Bin Rajak(2)   declined  the  recommendation  and   upheld   the commitment  order  as  already  noticed.   In  view  of  the conflict 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 occurs 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  initiation  of proceedings".   We  are  only concerned with Division B but it is unnecessary to deal with each  one of the sections contained in that Division.   Only two sections 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 upon complaint, police report, or information or  on the knowledge or suspicion of the (1)  A. I. R. 1937 Bom. 14. (2) 9 Guj.  Law Reporter 1. 838 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 (1)  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.  Prosecution for  contempt  of  lawful               authority of public servants.-               (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, sections 193,  194,  195,

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             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  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 Court, or of some               other   Court   to   which   such   Court   is               subordinate.               (2)   In  clauses (b) and (c)  of  sub-section               (1), 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                                    839               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 subordinate; 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               withdrawal  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

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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 ,court".  As cl. (b)  of s. 195(1) does not speak of offence committed 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 in  decided cases in this connection.  According to one view, to attract the  prohibition contained in cl. (c) 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 840 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. 195(1)(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(1)  and  the procedure for initiating  prosecutions  for offences mentioned therein.  Section 476 reads :               "476.  Procedure in cases mentioned in section               195.-               (1)   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  (1),               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

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             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 com-               plaint  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.               841               (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(1) 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  given  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  prosecutions 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 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 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  s. 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) and s. 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 themselves aggrieved by  the offences 842 mentioned  in those sections to start criminal  prosecutions on frivolous, vexatious or insufficient grounds inspired  by

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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 of 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  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 designed ultimately to be  injured through  the  offence against the administration  of  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 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 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.  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  those cases 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 appeal 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 that the legislature  could not have intended to extend the prohibition contained in  S. 195(1)(c) Cr.  P.C.-to the offences mentioned, therein  when committed by a party to a proceeding in that court prior  to his  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 that in our opinion cannot  be the controlling factor. because to adopt that  construction, documents forged long 843 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 two 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. Kushal Pal Singh(1) 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

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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 Rai(1) 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 of 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(1)(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. 193 I.P.C. their cognizance  would be  barred  under s. 195(1)(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 and if (1) I. L. R. [1953] All. 804. (2) A. T. R. 1966 All. 124. 844 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 lead 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(1) 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  I.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 (1) (c).  In this case a forged  vakalatnama was produced before the Compensation Officer for withdrawing certain amount.  The Cornpensation 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

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decision  of  that  Court reported as  Hari  Nath  Singh  v. State(1)  In Hari Nath Singh’s case(2),  distinguishing  the decision  of  this  Court in Basr-ul-Huq v.  State  of  West Bengal(1)  it was observed that offences under ss.  193  and 218 I.P.C. in that case were both barred. In Krishna Nair v. State of Kerala(1) 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(1)(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  evidence 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) 1 Crl. L., J. 340. 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(1) by majority held that under s. 195  (1) (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 re- covering 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 and explained  how he relied upon Rajak’s word.   The  Mamlatdar got the amount produced by Rajak 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

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a  charge-sheet  against Ali Bin Rajak 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 be 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 1. 846 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 the 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 this was not  barred  by  s. 195(1)(c).  It was apparently not argued that the  complaint of the Mamlatdar was necessary. In  State  v. Bhikubhai(1) a Division Bench of  the  Gujarat High Court observed that s. 195(1)(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(2). 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(1)(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 bad been the (1)  A. I. R. 1965 Guj. 70. (2) I. L. R. [1953] All. 804. target of the offence of perjury to consider the  expediency

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in  the larger public interest, of a criminal trial  of  the guilty party. In  this  case the offence under s. 471  I.P.C.  is  clearly covered by the prohibition contained in S. 195(1)(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 despatch. K.B.N.                                     Appeal allowed in part. 848