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2016 Supreme(Cal) 767
IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, J.
In the matter of: Akshay Jain & Another – Petitioners
Versus
State of West Bengal & Another – Respondents
C.R.R. No. 3741 of 2015
Decided On : 18-02-2016
For the Petitioners: Deepak Prahladka and Ms. Sunita Ghosh.
For the Respondents: Amartya Ghosh, Debashis Roy, Sandipan Ganguly and Arka Banerjee.
The bar under Section 195 of the CrPC does not apply to acts of forgery committed before the document has become custodia legis.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 156(3) - REGISTRATION OF FIR - FORGERY - COMPANY LAW BOARD - SECTION 195 - SUMMARY: The court held that the registration of an FIR for forgery of documents relied upon in a Company Law Board proceeding was not barred under Section 195 of the Criminal Procedure Code (CrPC). The court relied on the Supreme Court decision in Iqbal Singh Marwah & Another v. Meenakshi Marwah & Another, which held that the bar under Section 195 of the CrPC applies only to acts of forgery committed after the document has become custodia legis.
Fact of the Case:
The petitioners challenged a proceeding in a criminal case registered for forgery of documents relied upon by them in a Company Law Board proceeding. The petitioners argued that the registration of the FIR was barred under Section 195 of the CrPC and that the Magistrate erred in directing investigation under Section 156(3) of the CrPC without taking cognizance of the alleged offence.
Finding of the Court:
The court held that the Magistrate did not err in directing investigation under Section 156(3) of the CrPC as the allegations in the FIR disclosed cognizable offences. The court also held that the bar under Section 195 of the CrPC did not apply as the alleged forgery was committed before the documents became custodia legis.
Issues: 1. Whether the Magistrate erred in directing investigation under Section 156(3) of the CrPC without taking cognizance of the alleged offence. 2. Whether the registration of the FIR was barred under Section 195 of the CrPC.
Ratio Decidendi: 1. The power under Section 156(3) of the CrPC can be exercised by a Magistrate having jurisdiction under Section 190 of the CrPC to take cognizance of the alleged offence. 2. The bar under Section 195 of the CrPC applies only to acts of forgery committed after the document has become custodia legis.
Final Decision: The court dismissed the revisional application and held that the impugned criminal proceeding was not liable to be set aside.
Joymalya Bagchi, J.
1. In this revisional application, the petitioners have assailed a proceeding in Shakespeare Sarani Police Station Case No. 339 dated September 28, 2015 under Sections 420/465/468/ 471/120B of the Indian Penal Code. The proceeding is at the stage of investigation.
2. Mr. Deepak Prahladka, learned advocate appearing on behalf of the petitioners, submits that the gist of the allegation in the first information report is that documents, which were relied upon by the petitioners in the Company Law Board proceeding were forged. He submits that without resorting to Section 340 of the Code of Criminal Procedure criminal proceeding could not have been instituted by registering a first information report in view of the express bar under Section 195 of the Code of Criminal Procedure.
3. Mr. Prahladka further submits that the learned Magistrate mechanically sent the matter for investigation and the application under Section 156(3) of the Code of Criminal Procedure is, otherwise, not maintainable in law. He also submits that the ingredients in the alleged offences are not disclosed. On the other hand, Mr. Debasish Roy, learned advocate appearing on behalf of the opposite party no. 2, submits that the learned Magistrate sought for an enquiry as to whether the police authorities had acted on the prior complaints of the opposite party no. 2 and thereafter issued a direction under Section 156(3) of the Code of Criminal Procedure.
4. Mr. Roy relies on a decision of the Supreme Court in the case of Iqbal Singh Marwah & Another v. Meenakshi Marwah & Another, reported in (2005) 4 SCC 370 in support of his submission that the registration of first information report was not barred under Section 195 of the Code of Criminal Procedure. He further submits that the proceeding being at the stage of investigation, interference of this court is not called for.
5. Mr. Amartya Ghosh, learned advocate appearing on behalf of the State, opposes the prayer for quashing of the impugned proceeding.
6. The first issue raised by Mr. Prahladka with regard to the direction given by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure for registration of first information report without taking cognizance of the alleged offence is taken up for consideration. He relies on a decision of the Supreme Court in the case on S.N. Sharma v. Bipen Kumar Tiwari & Others, reported in AIR 1970 SC 786 in support of his contention that such direction is impermissible in law. In the said decision, the Apex Court, inter-alia, had observed that it is the duty of the police to register an information as first information report, if the same discloses cognizable offence. Similar power is vested under the Magistrate under Section 156(3) of the Code of Criminal Procedure, which, inter-alia, empowers a magistrate having requisite jurisdiction under Section 190 of the Code of Criminal Procedure or order an investigation of a cognizable offence by the officer in-charge of a police station. The expression "empowered under Section 190" used in the said sub-section merely refers to the jurisdiction of a Magistrate to take cognizance of the alleged offence in respect of which he is entitled to issue direction. Instead of taking cognizance under Section 190 of the Code of Criminal Procedure and proceeding under the Code, it is open to the Magistrate to pass direction for investigation under Section 156(3) of the Code of Criminal Procedure on an application/complaint provided the averments therein disclose cognizable offence [See Srinivas Gandhari v. SEPCO Power Electric Corporation, (2010) 8 SCC 206 (para 22 and 23)].
7. Offences may be on various kind including those involving investigation into complicated facts or forensic examination by experts which may be an aggrieved victim. Under such circumstances, the Magistrate may instead of taking cognizance under Section 190 of the Code of Criminal Procedure and calling upon the complainant/victim to add
