A Magistrate cannot take cognizance of an offence under Section 467 IPC on a private complaint, as it is barred by Section 195(1)(b)(ii) of the Code of Criminal Procedure.

( 1 ) THIS revision under Section 397 of the Code of Criminal Procedure (for short the 'code'), is against the order dated 25-3-1987, passed by First Additional Sessions Judge, Morena, in Criminal Revision 171/85 preferred against the order dated 4-9-1985 passed in Criminal Case No. 191/84 by the Judicial Magistrate, First Class, Morena.

( 2 ) FACTS leading to this revision are thus: the non-petitioner/complainant Dr Surendra Singh and the petitioner/accused Rajendra Singh are real brothers. The non-petitioner filed a complaint u/ss. 420 and 467 of the Indian Penal Code (for short the 'ipc') and Section 45 of the Advocates Act, 1961 (for short the 'act') against the petitioner, on the allegations that the petitioner/accused was a Deputy Ranger, who was convicted and sentenced for an offence u/s. 409 IPC on 31-7-1964 in Criminal Case No. 202/64 by the Additional District Magistrate (Judicial), Tikamgarh, that conviction and sentence was maintained by the High Court. The petitioner after manipulating the proceedings got himself declared as dead, thereafter, the petitioner without getting himself enrolled as an advocate on the roll of the State Bar Council, is practising in the Courts at Morena and Gwalior. For the offence u/s. 467 IPC, it was alleged that in revenue proceedings before the Tehsildar, the petitioner produced a Will, said to be executed by the father of the petitioner and non-petitioner, which was found to be forged. On the averments of the complainant, the Magistrate after holding an inquiry u/s. 202 of the Code took cognizance, and issued a process against the petitioner. The petitioner on his appearance, moved an application dated 8-7-1985 objecting that the facts constituting the offence did not make out any offence u/s. 420 IPC and/or under Section 45 of the Act and the cognizance for the offence u/s. 467 IPC was barred u/s. 195 (1) (b) (ii) of the code as the complaint having not been filed by the Tehsildar, in whose Court the forged Will is said to have been given in evidence. The Magistrate after hearing and on going through the record, observed that the complainant has no locus standi to file the complaint u/s. 467 IPC, and no prima facie case u/s. 420 IPC and u/s. 45 of the Act having been made out, dismissed the complaint. Aggrieved of this, the non-petitioner preferred a revision. The revisional Court after appreciating the material on record, concurred with the order of the trial Court for not proceeding with the case u/s. 420 IPC, but for the offences u/s. 467 IPC and 45 of the Act, remitted the case for considering the case at the stage of hearing on framing of charge.

( 3 ) SHRI Swamisharan, counsel for the petitioner/ accused and Shri B. S. Rathore, counsel for the non-petitioner/ complainant were heard.

( 4 ) THE first contention of the learned counsel for the petitioner that the Magistrate could not have taken cognizance for an offence u/ S. 467 IPC, except on a complaint in writing by the Tehsildar, in whose court document (the 'will') was produced and tendered in evidence in my opinion, has got a force.

( 5 ) SECTION 195 of the Code speaks of prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Sub-section (1) (b) (ii) of the section lays down that no Court shall take cognizance of any offence described in the Section mentioned therein when such an offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. Therefore, at the time of taking cognizance u/s. 190 of the Code, in the circumstances enumerated therein, Section 195 puts a limitation on the unfettered powers of the Magistrate to take cognizance. It is at that stage when the Magistrate is taking cognizance u/s. 190 has to examine the facts of the