manipulated and mislead the court
Rajesh Manchanda vs State Of U.P. & Another on 10 February, 2017
Bench: Mukhtar Ahmad
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 24 Reserved
Case :- APPLICATION U/S 482 No. - 22554 of 2009
Applicant :- Rajesh Manchanda
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- S.K. Dubey,Vikrant Pandey
Counsel for Opposite Party :- Govt. Advocate,D.S. Bohra,Kasif Zaidi,S.K. Tripathi
In Re : Misc. Application No. 351023 of 2011
U/S 340 Cr.P.C.
Hon'ble Mukhtar Ahmad,J.7. It is the contention of the learned counsel for the applicant that the alleged criminal complaint by Smt.Krishna Manchanda against Ashok Manchana and unknown persons in the court of Chief Metropolitam Magistrate Tis Hazari court New Delhi was filed on 10.11.2008 but its date was deliverately and fraudently changed as 3.5.2008 and and as such he manipulated and mislead the court by saying that the complaint under section 138 NI Act was subsequently filed as a counter blast and succeeded to obtain the stay of those proceedings. On this ground it is further submitted that since forgery in the complaint was committed so provisions of Section 195(1)(b)(ii) was attracted and, accordingly, this court be pleased to issue directions for filing of a complaint in terms of the provisions of Section 340 of the CrPC. To strenthen his submission he has put reliance on a decision of the Delhi High court in Sanjeev Kumar Mittal vs. State 2010 Law Suits (Del)2283. Learned counsel for the O.P. no. 2 and Learned A.G.A. took up a common contention that initialy there was no forgery in the date of alleged complaint as the it was not filed by him. The same was filed by the mother of both the parties and the copy as he get was filed in the court. Secondly application under Section 340 would not be maintainable in view of the Constitution Bench decision of the Supreme Court in the case of Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr 2005(4)SCC 370. It is also vehemently argued that the filing copy of complaint bearing dated 03.05.208 , as he get, was uninentional and its effect was minimal on the administration of justice and court is not bound to lodge a complaint in each and every case.
8. Since the issue is with regard to the maintainability of the present application under Section 340 of CrPC, it would be necessary to examine straightway the provisions contained therein. Section 340, upon a plain reading, would indicate that it provides for the procedure in cases mentioned in Section 195. Therefore, Section 340 CrPC cannot be read in isolation without reading and examining the provisions of Section 195. Section 195 of CrPC and in particular the portion that is relevant for our purposes, i.e., Section 195(1)(b)(ii) 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) xxx xxx xxx xxx xxx xxx xxx
(b) (i) xxx xxx xxx xxx xxx xxx xxx
(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.
Section 340 of the CrPC reads as under:-
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 interest 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 for 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.
(3) A complaint made under this section shall be signed,
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section, 'Court' has the same meaning as in section 195.
9. Upon a plain reading of the two provisions, it immediately becomes clear that where the bar under Section 195(1)(b)(ii) operates, the procedure prescribed under Section 340 of the CrPC gets triggered. The question as to when the bar under Section 195 operates has been settled by the Supreme Court in the case of Iqbal Singh Marwah (supra). In that case, what had happened was that in a probate case, pending before the District Judge, Delhi, a will was set up by one of the parties seeking probate. The same was contested on the ground that the will was a forged one. In the probate proceedings, an application under Section 340 CrPC had been filed. However, that application was kept pending and no decision was arrived at on the application. During the pendency of the said probate proceedings and the said application under Section 340 CrPC, the respondents also filed a criminal complaint before the court of the Chief Metropolitan Magistrate, New Delhi for prosecution under Sections 192, 193, 463, 464, 465, 467, 469, 471, 499 & 500 IPC on the ground that the will set up by the petitioners in the probate case was a forged and fictutious document. The Metropolitan Magistrate, upon consideration of the arguments made before him, came to the conclusion that 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 and, therefore, Section 195(1)(b)(i) and (ii) CrPC operated as a bar for taking cognizance of the offences. The criminal complaint was, accordingly, dismissed by the Metropolitan Magistrate. When a criminal revision against the said order came up before the Sessions Judge, he, relying upon the decision of the Supreme Court in the case of Sachida Nand Singh and Anr. v. State of Bihar Anr. 1998 (2) SCC 493, held that the bar contained in Section 195(1)(b)(ii) Cr.P.C would not apply where the forgery of a document was committed before the said document was produced in court. Accordingly, the revision petition was allowed and the matter was remanded to the court of the Metropolitan Magistrate to proceed in accordance with law. The matter was taken up to the Delhi High Court under Section 482 Cr.P.C, but the same was dismissed following the law laid down by the Supreme Court in the case of Sachida Nand Singh (supra). Thereafter, the matter came up before the Supreme Court. While examining the question of the bar under Section 195 Cr.P.C, the Supreme Court observed that the main controversy revolved around 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 of the Cr.P.C. The Supreme Court observed that there were two views possible. One view was the one that was expressed by the Supreme Court in its earlier decision in Surjit Singh and Ors. v. Balbir Singh and particularly as mentioned in paragraph 10 thereof which reads as under:-
It would thus be clear that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the court or given Page 1070 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 offences covered there under.
The other possible view was expressed in Sachida Nand Singh's (supra) case wherein the Supreme Court observed as under:-
A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference.
10. After examining these two possible interpretations, the Constitution Bench in the case of Iqbal Singh Marwah (supra), came to the clear and categorical conclusion that the view taken in Sachida Nand Singh's case (supra) was the correct one. In this context, the Constitution Bench observed as under:-
33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC 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.
34. In the present case, the copy of the alleged complaint produced in the court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed after it had been produced or filed in the Court in the proceedings under section 482 Cr.P.C. Therefore, the bar created by Section 195(1)(b)(ii) CrPC 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.
11. The case of Iqbal Singh Marwah (supra), therefore, lays at rest any controversy with regard to the scope and applicability of the bar contained under Section 195(1)(b)(ii) Cr.P.C. It is clear that where the forgery is said to have been committed outside the court and before the forged document is produced in court, then the bar under Section 195(1)(b)(ii) CrPC would not operate and the Magistrate can take cognizance of a complaint filed by an aggrieved party and it would not be necessary to adopt the procedure laid down under Section 340 Cr.P.C. In the present case, one finds that the the copy of alleged complaint, which is said to have been forged, by changing its dated as 03.05.2008 in place of 10.11.2008 was allegedly changed prior to its filing and production befor the court. Therefore, the bar under Section 195(1)(b)(ii) CrPC would not operate. If the bar does not operate, then Section 340, which merely prescribes the procedure for dealing with cases where it operates, would not come into play. The law cited by applicant Sanjeev Kumar Mittal(supra)was delivered by The Delhi High Court in a different perspective where entire proceedings were based on forged will and other documents,so it is distingushable and its ratio would not apply. Therefore, this application under Section 340 CrPC would not be maintainable. This, however, does not mean that the applicant Ashok Manchanda is without a remedy. It is open to him to file a complaint as the bar of Section 195 does not operate and it is open to the Magistrate concerned to take cognizance if such a complaint is filed.
12. It was contended as an alternative argument by learned Counsel appeared for applicant Ashok Manchanda, that, in any event, the filing of a forged and fabricated document before a court and that too a High Court in any proceedings would amount to interference in the course of justice and would ultimately amount to contempt of court as defined in Section 2(c) of the Contempt of Courts Act, 1971. It is in this context he further submits that even if it were to be held that the application under Section 340 CrPC is not maintainable, the petitioner should, at least, be prosecuted for having committed contempt of court. On this aspect, it is necessary to note that before the court takes out proceedings and decides a contempt petition, the alleged contemnor must have full opportunity to explain that no contempt at all and also to show that even if there was apparent contempt, he did not intend to be so and he should be also given an opportunity of displaying his remorse, if any. Therefore, the matter of contempt cannot be proceeded and in these circumstances, this application is disposed of with liberty granted to Ashok Kumar Manchanda to move an appropriate application for the purposes of taking the proceedings to its logical conclusion.
13. It is also made clear that it is open to Ashok Kumar Manchanda to file an appropriate complaint before the Magistrate, the bar under Section 195(1)(b)(ii) not being operative in this case.