K. S. LODHA, J. -
(1.)THIS application u/s 482 Cr. P. C. has been filed by Kartar Singh with the request that the order of the learned Munsif & Judl. Magistrate, Padampur, dated 31 3. 83 may be set aside and the proceedings pending before him may be quashed.
(2.)THE facts giving rise to this application briefly stated are that the non-petitioner no. 2 Jugraj Singh filed a complaint against the petitioner Kartar Singh and others for offences u/ss 468, 432, 120b, 199 I. P. C. etc. It was alleged that the complainant and the accused Kartar Singh were brothers. THEy had an elder brother Saudagar Singh. Saudagar Singh used to live with the complainant and before a few days of his death. Kartar Singh had taken away Saudagar Singh to his house on the pretext that he will get him treated However, there he forged a will purporting it to have been executed by Saudagar Singh in favour of the minor sons of Kartar Singh. THE other accused persons and the complainant are said to be parties to the conspiracy to the forgery and some of them were alleged to be the attesting witnesses thereof. It was also alleged that Saudagar Singh did not even go to the office of the Sub-Registrar but the accused had impersonated him. This complaint was sent to the police u/s 156 (3)Cr. P. C. THE police after investigations, filed a final report on 21. 6. 80. THE complainant then filed a protest petition. THE learned Magistrate after hearing the complainant, refused to accept the final report and took cognizance of the offences u/ss 468, 423, 120b against the petitioner Kartar Singh and some other accused persons and for some other offences against some of the other accused persons also. Processes were issued against the accused persons.
After the accused persons appeared before the learned Magistrate the learned Magistrate framed charges for offences u/ss 468, 423, 120b and 199 I. P. C. against the accused persons. They pleaded not guilty and claimed to be tried. Before the trial could proceed further an application was made on behalf of the accused challenging the territorial jurisdiction of the Court. However that application was rejected on 19. 10. 81. Later another application was filed u/s 195 (1) (a) objecting to the cognizance being taken against the accused persons u/s 468 and the allied offences on the ground that before the cognizance was taken, an application for probate on the alleged will had been filed and the will had been produced before the court of the learned District Judge, Ganganagar. Therefore, unless a complaint was filed by the court in which the will had been produced, the criminal court could not take cognizance of the offence u/s 468 I. P. C. The learned Magistrate after hearing the parties in respect of this application, rejected the same by his order dated 31. 3. 83. This order is being challenged now.
It may be mentioned here that in the application u/s 482 Cr. P. C, a prayer was also made that the earlier orders of the learned Magistrate dated 23. 10. 80 and 10. 10. 81 may also be quashed but when the attention of the learned counsel was drawn to the fact that by this application u/s 482 Cr. P. C, he cannot be allowed to challenge three orders, the learned counsel restricted this application to the order dated 31. 3. 83 only. He, however, further urged that if the order dated 31. 3. 83 is set aside and it is held that cognizance could not have been taken by the learned Magistrate in this case, then the order dated 23. 10. 83 would automatically come to an end.
I have heard the learned counsel for the parties as also the learned P. P.
There is no dispute about the fact that cognizance of the offence u/s 468 I. P. C had been taken against the petitioner by the learned trial court on 23. 10. 80. There is also no dispute that before that date, an application for grant of probate on the disputed will had already been filed and the will had been presented before the learned District Judge, Srigangangar on 3. 7. 80. The question which arises for consideration in these circumstances, is whether the learned Munsif & Judl. Magistrate could have taken cognizance of the offence u/s 468 I. P. C. in view of the provisions of s. 195 (1) (b) (ii) read with s. 340 Cr. P. C.
(3.)IT is contended by the learned counsel for the petitioner that since before the cognizance of the offence u/s 468 I. P. C. had been taken by the learned Magistrate on 23. 10. 80, the will in dispute had already been produced before the court in the probate proceedings and, therefore, the bar contemplated u/s 195 (1) (b) (ii) would clearly apply to the present case at the aforesaid provision clearly debars the court from taking cognizance in such circumstances. In support of his contention, he has placed reliance upon Ram Pal Singh vs. State at U. P. (1) and Gopalkrishna Menon vs. D. Raja Reddy (2 ). On the other hand, the learned counsel for non-petitioner no. 2, who has contested this application urged that since the offence in question had already been committed before the probate proceedings started and a complaint had also been filed before the probate proceedings started, the prohibition against cognizance contained in s. 195 (1) (b) (ii) Cr. P. C. would not apply and, therefore, the learned Magistrate was perfectly justified in passing the order dated 31. 3. 83. He placed reliance upon Legal Remembrancer, Govt. of W. B. vs. Haridas (3 ). I have given my careful consideration to the rival contentions and in my opinion, the contention put forward by the learned counsel for the petitioner must be accepted. The authority relied upon by the learned counsel for the non-petitioner no. 2 is not applicable inasmuch as it is based on the unamended provisions of s. 195. The present s. 195 (1) (b) (ii) as now stands, is quite different from the provisions considered in that case.
The relevant portion of s. 195 (l) (b) (ii) reads as under: - "no Court shall take cognizance 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, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. " A bare perusal of this section would show that if an offence as referred to above in the section is alleged to have been committed in respect of a document which has been produced or has been given in evidence in a proceeding in any court then no court shall take cognizance of that offence except when a complaint is made by that court in which that document has been produced or by some court to which that court is subordinate. In other words, when a document is produced in a court or given in evidence and an offence referred to in sub-clause (ii) of clause (b) of sub-section (1) of s. 195 Cr. P. C. is alleged to have been committed in respect of that document, then it is only the court in which that document is produced or a court is to which that court is subordinate, which can make a complaint, if necessary, as required by s. 340 of the Criminal Procedure Code and then alone the criminal court can take cognizance of that offence. In the absence of such a complaint by that court, the criminal court cannot take cognizance of that offence on any other complaint or police report etc. The provisions of s. 195 (l) (b) (ii) have been examined by their Lordships of the Supreme Court in Gopalkrishna Menon's case (supra) and the view propounded is as under: - "if Section 195 (l) (b) (ii) is attracted to the facts of the present case, in the absence of a complaint in writing of the civil court where the alleged forged receipt has been produced, taking of cognizance of the offence would be bad in law and the prosecution being not maintainable, there would be absolutely no justification to harass the appellants by allowing prosecution to have a full dressed trial. " The same view also appears to be taken by the Allahabad High Court in Ram Pal Singh's case (supra) although in a little different context. Now applying this principle to the present case, it clearly appears that the learned Magistrate was not justified in taking cognizance of offence u/s 468 I. P. C. in the present case because before the cognizance was taken by him on 23. 10 80, the will in dispute had already been filed in the court of the learned District Judge, Sri-ganganagar, in connection with the probate proceedings. Since the will had been produced in the court the provisions of s. 195 (l) (b) (ii) were clearly attracted.
The contention of the learned counsel for non-petitioner no. 2 that the offence is alleged to have been committed before the probate proceedings started and the complaint has also been filed before that is, in my opinion, of no significance because the prohibition contained in s. 195 (l) (b) (ii) is against the cognizance being taken in respect of a document, which has been produced or given in evidence in a court irrespective of the fact when the offence is alleged to have been committed or when the complaint has been filed. The filing of the complaint is not of much consequence. It is the taking of the cognizance which is important in view of s. 195.