Bar Of 195 CrPC Supreme Court order allowing courts to initiate action against perjury, on the basis of private complaint

Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another - Mar 11 2005
Issue : Criminal Procedure Code - Sections, 195 (1), 340 and 482; Indian Penal Code - Sections, 192, 193, 463, 464, 465, 467, 469, 471, 475, 476, 499 and 500
Citation 2005 (4) SCC 370

CASE NO.:
Appeal (crl.) 402 of 2005

PETITIONER:
Iqbal Singh Marwah & Anr.

RESPONDENT:
Meenakshi Marwah & Anr.

DATE OF JUDGMENT: 11/03/2005

BENCH:
CJI R.C.Lahoti, B.N.Agrawal, H.K. Sema, G.P.Mathur & P.K.Balasubramanyan

JUDGMENT:
J U D G M E N T

(Arising out of Special Leave Petition (Criminal ) No. 4111/2000)

(With Criminal Appeal Nos. 904/1998 & 1069-1070/1998)


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
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

(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
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
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 '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
IPC which is headed as '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
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
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
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.

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
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
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. ' 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. 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. . 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
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
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.