1998 Supreme(Raj) 1334
RAJASTHAN HIGH COURT
G.L.Gupta, J.
Khuman Singh & Ors. - Appellant
Versus
State of Rajasthan - Respondent
S.B. Cr. Misc. Petition No. 634 of 1998.
Decided On : 2-12-1998
The bar of Section 195(1)(b)(ii) Cr.P.C. does not apply to cases where the forgery of the document was committed before the document was produced in court.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 195(1)(B)(II) - FORGERY - COGNIZANCE OF OFFENCE - BAR - NOT APPLICABLE WHERE FORGERY COMMITTED BEFORE PRODUCTION OF DOCUMENT IN COURT.
Fact of the Case:
The petitioners were accused of forging a will and presenting it in court. The Judicial Magistrate and the Sessions Judge rejected their application under Section 195(1)(b)(ii) Cr.P.C., which bars cognizance of an offense related to a forged document unless a complaint is filed by the court in which the document was presented. The petitioners challenged this order, arguing that the bar of Section 195(1)(b)(ii) applied because the forged will was presented in court.
Finding of the Court:
The High Court held that the bar of Section 195(1)(b)(ii) Cr.P.C. does not apply to cases where the forgery of the document was committed before the document was produced in court. The court relied on the Supreme Court decision in Sachida Nand Singh v. State of Bihar, which held that the offense of forgery must have been committed while the document was in custodia legis (in the custody of the court) for the bar to be attracted.
Issues: Whether the bar of Section 195(1)(b)(ii) Cr.P.C. applies to cases where the forgery of the document was committed before the document was produced in court.
Ratio Decidendi: The court held that the bar of Section 195(1)(b)(ii) Cr.P.C. does not apply to cases where the forgery of the document was committed before the document was produced in court. The court reasoned that the purpose of Section 195(1)(b)(ii) is to preserve the purity of the administration of justice and to allow parties to adduce evidence without being compelled or intimidated to proceed with the judicial process. However, this purpose is not served when the forgery is committed before the document is produced in court, as the court has not yet taken custody of the document.
Final Decision: The High Court dismissed the petition, upholding the order of the lower courts.
JUDGMENT
1. - This Misc. petition is directed against the order passed by the learned Special Judge cum Addl. Sessions Judge, Udaipur dated 18.6.98 whereby she upheld the order of the Judicial Magistrate dated 4.4.98 rejecting the application of the petitioners under section 195(1)(b)(ii) Cr.P.C.
2. The relevant facts are that Karan Singh filed a complaint on 26.7.90 in the court of Judicial Magistrate, Udaipur alleging that the petitioners have forged a will purported to have been executed by Smt. Bhoor Kanwar on 10.5.87 in their favour in respect of Khatedari land situate at Village-Guda. It was stated that Bhoor Kanwar who was his sister had already executed a will in favour of the complainant on 13.11.79. It was further stated that the complainant came to know about the forgery when on the death of Bhoor Kanwar she went to the Patwari for mutation in his name and the Patwari told him that Khuman Singh (Petitioner No. 1) had already filed a will dated 10.5.87 and the land has been entered in his name. It was prayed in the complaint that the petitioners be punished under section 467, 468, 471, 420 and 120-B IPC. This complaint was sent to Police Station Gogunda under section 156(3) Cr.P.C. After the completion of the investigation, the police submitted a challan against the petitioners. Thereupon the petitioners moved an application stating that the cognizance, taken by the Court was barred by Section 195 Cr.P.C. as the Court in which the forged will has been presented has not filed complaint. The Judicial Magistrate vide order dated 4.4.98 rejected the application of the petitioners. Their revision against the order also proved abortive.
3. The contention of Mr. Kumbhat was that once a forged document is produced in the court, cognizance of the offence can be taken only on the complaint of the court concerned because of Section 195 Cr.P.C. He placed reliance on the case of Surjit Singh v. Balbir Singh AIR 1996 SC 1592 .
4. When his attention was drawn to the later decision of the Apex Court in the case of Sachida Nand Singh v. State of Bihar AIR 1998 SC 1121 he submitted that the decision in the case of Surjit Singh (supra) has not considered by the Bench which decided the case of Sachida Nand Singh (supra) and, therefore, the decision in the case of Surjit Singh holds the field and the decision in the case of Sachida Nand Singh should be treated as per incurium. He canvassed that the rule of precedent is that where there is direct conflict between the two decisions of the Supreme Court by co-equal Benches, the High Court must follow the judgment of the earlier Bench. In support of his contention, he cited the cases of Amar Singh Yadav v. Shanti Devi AIR 1987 Patna 191 , Ganga Charan v. Civil Judge, Hapur AIR 1991 Allahabad 115 and Mamleshwar v. Kanhaiyalal AIR 1975 SC 907 .
5. The learned Public Prosecutor, on the other hand, tried to support the order of the courts below.
6. I have given the matter my thoughtful consideration, the facts reveal that the complaint was filed by Karan Singh on 26.7.90 which was forwarded to the police, who gave the final report on 2.8.90, but the Court did not accept the final report and took cognizance against the accused vide order dated 28.7.92. In between the period the F.R. was given and the Court took cognizance, petitioner Khuman Singh filed a civil suit on the basis of the will dated 10.5.87. It is obvious that the document which is said to have been forged was executed much before the filing of the civil suit by the accused-petitioner on 4.8.90. The question for consideration is whether in such circumstances the bar of Section 195(1 )(b)(ii) is attracted.
7. The direct authority on the point is the case of Sachida Nand Singh (supra) wherein a three Judge Bench of the Apex Court has clearly held that the bar contained in Section 195(1)(b)(ii) is not applicable to a case where forgery of the document was committed before the document was produced in a court. The Apex Court has observe
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