Forgery offenses must occur post-document submission to invoke provisions of Sec.195 and Sec.340 Cr.P.C.; pre-submission offenses allow private complaints.

J U D G M E N T

The order under challenge in this Original Petition (Civil) is the one rendered as per Ext.P-7 dated 8.6.2017 on I.A.No.288/2017 in O.S.No. 3/2015 by the trial court (Court of Subordinate Judge, Hosdurg), whereby the plea made by the petitioner/ applicant/plaintiff that the alleged false Ext.P-2 document should be subject matter of Sec.340 inquiry has been repelled by the court below.

2. Heard Sri.M.Ramesh Chander, learned Senior Counsel instructed by Sri.Balu Tom Cheruvally, learned counsel appearing for the petitioner and Smt.Hemalatha, learned counsel appearing for the respondents.

3. The petitioner is the plaintiff in O.S.No.3/2015 seeking realization of damages for defamation due to publication of a notice by the respondents herein and during the course of the inquiry, in attachment application I.A.No.80/2015, the respondents have produced an agreement dated 20.9.2014 (Ext.B-2) and the petitioner has alleged that Ext.B-2 is a forged document and that the respondents herein have committed forgery and that they have used it as a genuine document before the court and have committed offence punishable under Secs.465 and 471 of the I.P.C. and that preliminary inquiry is necessary to make a complaint against the 1st respondent herein by the Judicial First Class Magistrate's Court, Hosdurg, etc. The court below has repelled the said plea on the main reasoning that the Apex Court has held in a catena of decisions that when the alleged forgery is committed outside the court, but before production of the document in the court, the provisions contained in Sec. 340 of the Cr.P.C.

cannot be applied, etc.

4. Sub Section 1 of Sec. 195 reads as follows:

“Sec.195: Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance--

(a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under Section

471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.”

Sec. 340 Cr.P.C. which deals with procedure in cases mentioned in Sec. 195 of the Cr.P.C. reads as follows:

“Sec.340: Procedure in cases mentioned in Section 195 (1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195 , which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having