IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 4094 of 2022 Bishwajeet s/o- late Kamta Prasad Singh, aged about 51 years, resident of 56B, Pocket-B, SFS Flat, P.O. & P.S.-Mayur Vihar, Phase-3 Delhi, State-New Delhi, PIN-110096 .... Petitioner Versus

1. The State of Jharkhand

2. Jamal Asraf Khan, s/o Matin Ehsan Khan, aged about 28 years, resident of Village-Pipcho, P.O.-Makatpur, P.S.-Jainagar, Dist.-

Koderma …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY …..

For the Petitioner : Mr. Diwakar Upadhyay, Advocate : Mr. Binit Chandra, Advocate For the State : Mr. S.K. Tiwari, Spl. P.P.

For O.P. No.2 : Mr. H.K. Shikarwar, Advocate …..

By the Court:-

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with the prayer to quash the entire criminal proceeding including the order taking cognizance dated 22.03.2022 passed by the learned Judicial Magistrate 1st Class, Hazaribagh whereby and where under, the learned Judicial Magistrate 1st Class, Hazaribagh has taken cognizance for the offences punishable under Sections 467, 468, 471 and 474 of the Indian Penal Code.

3. The allegation against the petitioner is that the petitioner created a false document being sale deed no. 1328 of 1970 by changing the original plot number ‘3’ as ‘7’ by way of interpolation and filed the same in Writ Petition No. 387 of 2019.

4. On the basis of the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Judicial Magistrate 1^st Class, Hazaribagh found prima facie case of the said offences and took cognizance of the said offences.

5. It is submitted by the learned counsel for the petitioner that the petitioner is innocent and has not committed any offence. It is next submitted by the learned counsel for the petitioner that the learned Judicial Magistrate 1st Class, Hazaribagh is debarred from taking cognizance of the offence in view of Section 195 (1) (b) (ii) of the Code of Criminal Procedure. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

6. Learned Special Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer and submits that since the forgery for the purpose of cheating was committed before the document was filed in the court, the provision of Section 195 (1) (b) (ii) of the Code of Criminal Procedure is not attracted in this case; as the same is applicable when false document is created after the document is produced in the Court. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the Hon’ble Constitution Bench of the Hon’ble Supreme Court of India in the case of Iqbal Singh Marwah v. Meenakshi Marwah reported in (2005) 4 SCC 370, paragraph no. 33 of which reads as under:-

“33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh [(1998) 2 SCC 493 : 1998 SCC (Cri) 660] has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.”

(Emphasis supplied)

has clarified the law in this respect by categorically holding that Section 195 (1) (b) (ii) of the Code of Criminal Procedure would be attracted only when the offences enumerated in the said provision have been committed with respect to a document, after it has been produced or given in evidence in a proceeding in any court i.e.

during the time when the document was in custodia legis.

8. Now coming to the facts of the case, the u