A person cannot be proceeded against under Section 319 of the CrPC if he had already figured as an accused in the case at any stage.

1. This application, under Sec. 397 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 27-5-1991 passed by Shri D. R. Roy, Judicial Magistrate Ist Class, Nawadah in Complaint Case No. 14/88/Tr. No. 554/91 by which the learned Judicial Magistrate; on a petition filed under Sec. 319 of the Code; ordered for the issue of process against the petitioner for the alleged offences under Secs. 465, 467, 468 471 and 120 (B) of the Indian Penal Code.

2. It appears that the complainant, Janki Devi (O.P. No. 2) filed a complaint petition before the Chief Judicial Magistrate on 11-1-1988 alleging therein that the accused persons including the present petitioner entered into a criminal conspiracy and created a forged and fabricated document purported to be the certified copy of the order passed by the Settlement Officer under Sec. 106 of the Bihar Tenancy Act in T. S. Nos. 58/80 and 58(A)/80 to the effect that Khata Nos. 91 and 263 were entered into the Khatiyan of Kunti Devi who was also named as an accused in the complaint petition. The allegation against the petitioner was that; he, in the capacity of Head Assistant in the record room of the Collectorate, Nawadah; issued the purported certified copy of the aforesaid forged order certifying it to be genuine. It was further alleged that the accused persons of the said case were using the aforesaid document as a genuine document. They produced it before Anchal Adhikari, Warsaliganj, who, on its basis, issued rent receipts for R. S. Khata Nos. 263 and 91 in the name of accused No. 2, Kunti Devi.

3. On the basis of this complaint petition (Annexure 1) Complaint Case No. 14/88 was instituted in which an enquiry under Sec. 202 of the Code was held by the learned Chief Judicial Magistrate. On the conclusion of the enquiry the learned Magistrate took cognizance of the offence against two of the accused, namely, Suresh Singh and Kunti Devi for the offences mentioned above but did not take cognizance against the present petitioner. He, thereafter, transferred the case to the file of Shri P. Kashyap, Judicial Magistrate, Nawadah for trial.

4. In this petition the petitioner has contended that by virtue of his post as the Head Assistant of the record room he was duty bound to sign on the certified copies prepared by the copyist and checked and compared by the comparing clerk as well as by the head comparing clerk who are required to properly check every certified copy with the original and also to certify that the certified copy is the true and correct copy of the original. The petitioner being an old man suffering from heart disease was required to sign a large number of certified copies every day and it was not physically possible for him to check and compare each and every copy with the original. He had to act on the certificate granted by the Head Comparing Clerk as well as the Comparing Clerk to the effect that the copy prepared was the true copy of the original. While issuing the certified copy, in course of his duty, it would be futile to say that the petitioner had obtained any gain in giving the certificate on the aforesaid document. Even the alleged certified copy was not annexed with the complaint petition and the Court below did not get an opportunity to scrutinise and to find out whether any fraud or fabrication was committed in the preparation of the aforesaid document. The learned Court below did not even call for the same. In its absence it was not fair and proper for the Court below to pass the impugned order against the petitioner under Sec. 319 of the Code, as no prima facie case was made out against him.

5. Under the aforesaid facts and circumstances the case of the petitioner will be out of reach of Sec. 319 of the Code since as per the complaint petition he figured as one of the accused in the case and also since by the order dated 27-5-1988 taking cognizance of the offence no cognizance was taken against the petitioner as will