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PUNJAB & HARYANA HIGH COURT
K.S.Tiwana, Surinder Singh and I.S.Tiwana JJ.
Harbans Singh
Versus
State Of Punjab
Criminal Miscellaneous No. 5095 of 1984,
Criminal Revision No. 517 of 1985,
Decided On : MAY 7, 1986
CRIMINAL PROCEDURE CODE - SECTION 195(1)(B)(II) - SCOPE - FORGERY OF DOCUMENT - INVESTIGATION BY POLICE - POWER OF COURT TO TAKE COGNIZANCE - INTERPRETATION OF SECTION 195(1)(B)(II) - RATIO DECIDENDI OF SUPREME COURT JUDGEMENT IN GOPALAKRISHNA MENON V. D. RAJA REDDY - WHETHER IT OVERRULES DIVISION BENCH DECISION OF PUNJAB AND HARYANA HIGH COURT IN KARNAIL SINGH V. STATE OF PUNJAB - WHETHER AMENDMENT OF SECTION 195(1)(C) OF OLD CODE OF CRIMINAL PROCEDURE (1898) BY DELETION OF WORDS "BY A PARTY TO ANY PROCEEDING IN ANY COURT" WIDENS SCOPE OF SECTION 195(1)(B)(II) OF NEW CODE OF CRIMINAL PROCEDURE (1973) - WHETHER POLICE HAS STATUTORY POWER TO INVESTIGATE COGNIZABLE OFFENCES UNDER SECTIONS 471, 475 OR 476 OF INDIAN PENAL CODE VIS- VIS BAR UNDER SECTION 195(1)(B)(II) OF NEW CODE OF CRIMINAL PROCEDURE WITH REGARD TO COGNIZANCE THEREOF BY COURT.
Fact of the Case:
The petitioner, Karnail Singh, and another had instituted a civil suit on 25th September, 1980 against his brother Jarnail Singh and others for a declaration that they were owners in possession of the land and for a permanent injunction restraining the defendants from interfering in their possession. The suit was based on the will allegedly executed on 27th April, 1977 by Karnail Singh's father Hari Singh. Jarnail Singh during the pendency of the said suit made an application before the Senior Superintendent of Police, Amritsar, alleging that the will relied upon by Karnail Singh was forged and, therefore, he had committed offence under Sections 420, 467 and 471 of the Penal Code. The police registered the case and commenced investigation. Karnail Singh approached the High Court for quashing of the first information report and the investigation.
Finding of the Court:
The Division Bench of the Punjab and Haryana High Court held that Section 195(1)(b)(ii) of the new Code of Criminal Procedure (1973) applies only to the offences mentioned in that provision while a document is in custodia legis but will include in its operation, the document about which such offence, if committed, even prior to its production or being given in evidence in court. The court further held that the police has the statutory power to investigate the cognizable offences under Sections 471, 475 or 476 of the Indian Penal Code vis- vis the bar under Section 195(1)(b)(ii) of the new Code of Criminal Procedure with regard to the cognizance thereof by a court.
Issues: 1. Whether the Division Bench decision of the Punjab and Haryana High Court in Karnail Singh v. State of Punjab was rendered per incuriam in light of the Supreme Court judgment in Gopalakrishna Menon v. D. Raja Reddy? 2. Whether the amendment of Section 195(1)(c) of the old Code of Criminal Procedure (1898) by deletion of the words "by a party to any proceeding in any court" widens the scope of Section 195(1)(b)(ii) of the new Code of Criminal Procedure (1973)? 3. Whether the police has the statutory power to investigate cognizable offences under Sections 471, 475 or 476 of the Indian Penal Code vis- vis the bar under Section 195(1)(b)(ii) of the new Code of Criminal Procedure with regard to the cognizance thereof by a court?
Ratio Decidendi: 1. The principle of per incuriam means "through want of care" or an order of Court obviously made through some mistake or under some misapprehension. Karnail Singh's case was decided by a Division Bench of the Punjab and Haryana High Court on 20th October, 1982, while Gopalakrishna Menon's case was decided by the Supreme Court on 5th September, 1983. As Gopalakrishna Menon's case was decided after the decision of Karnail Singh's case, there was no question of noticing of the former case by the Division Bench of the Punjab and Haryana High Court in Karnail Singh's case. Therefore, the Division Bench decision of the Punjab and Haryana High Court in Karnail Singh v. State of Punjab was not rendered per incuriam. 2. The amendment of Section 195(1)(c) of the old Code of Criminal Procedure (1898) by deletion of the words "by a party to any proceeding in any court" does not widen the scope of Section 195(1)(b)(ii) of the new Code of Criminal Procedure (1973). The purpose of the amendment was to extend the benefit to the scribe, witnesses etc., who were intimately connected with the document, about which the suspicion of an offence having been committed is voiced by any party or is found to exist. 3. The police has the statutory power to investigate the cognizable offences under Sections 471, 475 or 476 of the Indian Penal Code vis- vis the bar under Section 195(1)(b)(ii) of the new Code of Criminal Procedure with regard to the cognizance thereof by a court.
Final Decision: The reference made by the single judge to the Full Bench was answered in accordance with the Full Bench's decision. The individual cases were sent back for decision on merits.
K.S.TIWANA, J.
1. While hearing Criminal Misc. Application No. 5095-M of 1984 (Harbans Singh etc. V/s. State), M.M. Punchhi, J. formed the view that a Division Bench decision of this court reported as Karnail Singh V/s. State of Punjab, 1983 Cri LJ 713 went against the Supreme Court judgement reported as Gopalakrishna Menon V/s. D. Raja Reddy, AIR 1983 SC 1053 : (1983 Cri LJ 1599). In the view of M.M. Punchhi, J., as the principle of Gopalakrishna Menon s case (supra) seems to have escaped the notice of the learned Judges in Karnail Singh s case (1983 Cri LJ 713) (Punj and Har) (supra), the latter judgement might be rendered per incuriam. On this basis, this matter in which the interpretation of Section 195(1)(b)(ii) of the Code of Criminal Procedure 1973 (hereinafter referred to as the new Code) is involved is referred to a larger Bench. Criminal Revision No. 517 of 1985, Baldev Singh etc. V/s. State of Punjab was also directed to be heard with Criminal Misc. No. 5095-M of 1984.
2. The question of judgement in case of Karnail Singh s case (supra) being per incuriam does not arise. Per incuriam means through want of care . It means an order of Court obviously made through some mistake or under some misapprehension. Karnail Singh s case was decided by a Division Bench of this Court on 20th of October, 1982 and Gopalakrishna Menon s case was decided by the Supreme Court on 5th of September, 1983. As Gopalakrishna Menon s case was decided after the decision of Karnail Singh s case, there was no question of noticing of the former case by the Division Bench of this Court in Karnail Singh s case. This ends the reasoning about per incuriam as referred by the learned single Judge.
3. Since the correctness of Karnail Singh s case (1983 Cri LJ 713) (Punj and Har) has come to be doubted in the light of Gopalakrishna Menon s case (1983 Cri LJ 1599) (SC), we did not feel inclined to decline the reference on the basis of per incuriam, as noticed in the previous paragraph, but heard the parties in detail in regard to the scope of S.195(1)(b) (ii) of the new Code after its amendment and whether the amendment had brought any change in the area of its operation. The facts in Karnail Singh s case were that Karnail Singh petitioner and another had instituted a civil suit on 25th of September, 1980 against his brother Jarnail Singh and others for a declaration that they were owners in possession of the land and for a permanent injunction restraining the defendants from interfering in their possession. The suit was based on the will allegedly executed on 27th of April, 1977 by Karriail Singh s father Hari Singh. Jarnail Singh during the pendency of the said suit made an application before the Senior Superintendent of Police, Amritsar, alleging that the will relied upon by Karnail Singh was forged and, therefore, he had committed offence under Sections 420, 467 and 471 of the Penal Code. The police registered the case and commenced investigation. Karnail Singh approached the High Court for quashing of the first information report and the investigation.
4. In Karnail Singh s case (1983 Cri LJ 713), the Division Bench of this court was seized of the question whether the police had the statutory power to investigate the cognizable offences under Section 471, 475 or 476 of the Penal Code vis-a-vis the bar under Section 195(1)(b)(ii) of the new Code with regard to the cognizance thereof by a court. While deciding that case on the basis of arguments addressed before the Bench it went into the scope of S.195(1)(b)(ii) of the new Code after amendment; as to what was the effect of the deletion of the words, "by a party to any proceeding in any Court" from S.195(1)(c) of the Code of Criminal Procedure, 1898, (hereinafter referred to as the old Code), while enacting S.195(1)(b)(ii) of the new Code. The Division Bench also decided the question whether after amendment S.195(1)(b)(ii) of the new Code applied to the case where forgery was committed much ea
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