- (1.) THIS petition has been filed under Section 482, Crpc for quashing of the proceedings in Criminal Case No. 34 of 1980, under Sections 419, 463, 464, 465,468 and 471, IPC pending in the court of Judicial Magistrate, Phulpur, Azamgarh.
(2.) OPPOSITE party No. 1 Kaddar filed a complaint against the appli cants under Section 419/463/464/465/468 and471, IPC with the allegations that the complainant is bhumidhar in possession of Chak No. 17, in area 603 karris, situate in village Sedhan Patti, P. S. Kandhapur, district Azamgarh. Accused Nos. 1 and 2 are the nephews of the complainant. In order to grab the property of the complainant accused No. 1 and 2 in collusion with accused Nos. 3 to 7 got a forged sale deed dated 26- 3-1976, executed in their favour through a person impersonating complainant. On the basis of that forged sale-deed accused Nos. 1 and 2 applied for muta tion of their names before the ACO under Section 12 of the U. P. Consoli dation of Holdings Act and used the said sale-deed, knowing it to be forged, as genuine and succeeded in obtaining ex parts order of mutation in their favour on 8-7-1976 but that order was set aside on appeal. The complainant further alleged that he never executed any sale-deed in favour of accused Nos. 1 and 2 nor he ever applied for mutation. He never signed or thumb marked the alleged sale deed nor he appeared before the Sub-Registrar. Learned Magistrate after recording statements under Sections 200 and 202, Crpc found a prima facie made out against the applicants and he accordingly summoned them. Act the time of framing of charges, the appli cants raised a preliminary objection challenging the jurisdiction of the learned Magistrate that he was not competent to take cognizance of the offence in view of the bar enumerated in Section 195 (1) (b) (ii), Crpc. The Magistrate rejected that preliminary objection and passed order framing charges against the accused-applicants for the offence of forging sale-deed dated 26-3-1976. The applicants feeling aggrieved by order of learned Magistrate preferred Criminal Revision No. 125 of 1981 before the Sessions Judge, Azamgarh. The learned VIIIth Additional Sessions Judge dismissed the revision by order dated 5-1-1982 holding that the Magistrate was quite justified in coming to the conclusion that the cognizance on the complaint by learned Magistrate was not barred under Section 195 (1) (b) (ii), Crpc. The applicants have now come up to this Court against the order passed by the courts below. Heard learned Counsel for the parties. The question that centers round this petition is as to whether the Magistrate had jurisdiction to take cognizance of the offences specified under Section 195 (1) (b) (ii), Crpc in respect of a document produced or given in evidence in a proceeding in the court. In the present case the alleged offences under Sections 419/463/464/465/468 and 471, Crpc were committed by the applicants by getting a forged sale-deed executed through person impersonating him as the complainant in order to cause damage to the complainant. The contention of the learned counsel for the applicants is that the alleged forged sale- deed was filed in the mutation proceedings and the mutation court alone was competent to take cognizance of the said offences. The Magistrate concerned was not competent to take cogni zance unless the complaint was filed by the court concerned where the docu ment was produced and given in evidence and since here no such complaint was filed by the ACO, therefore, the learned Magistrate had no jurisdiction to take cognizance on the complaint of the opposite party. In support of the above contention the learned counsel for the applicants relied on a decision in Naksay Lal v. Kedar Singh, 1982 UP Crr 69.
(3.) I have given anxious thought to the submission made by the learned counsel for the applicants. It is a case in which a forged document was prepared before the Sub-Registrar and it was filed before the mutation court. We have to see at this stage as to whether the offence was committed in respect of the document produced or given in evidence in proceeding in the court. In this connection Karnataka High in the case of Azizuddin M. State of Karnataka, 1978 Cr LJ 1632 made observations as follows: "in this case, the offence of forgery under Section 471, IPC was alleged to have been committed by the appellant in respect of documents which were not produced or given in evidence in any proceedings before any court earlier to the proceedings in which the appellant was tried for the very offence of forgery commit ted in respect of those documents for having used them as genuine knowing them to be forged for the purpose of deceiving the defence authorities by dishonestly and fraudulently inducing them to deliver certain sum of money. The police on coming to know that certain offences including one punishable under Section 471 were committed by the appellant, registered a case against him, investigated and placed a charge-sheet before the learned Special Judge. They did not initiate criminal proceed ing against the appellant because the appellant had produced those documents or given them in evidence in any proceeding before any court. The learned Special Judge took cognizance of the offence on the charge-sheet placed by the police as required under Section 190 of the new Code. If the argument of Srinivasachar is to be accepted and it is to be held that a com plaint by the learned Special Judge is required for taking cogni zance of the offence alleged against the appellant merely because those documents were produced in the prosecution of the appel lant for the very offence of forgery committed by him in respect of those documents, it would amount to interference with the statutory powers of the police to investigate a crime. That may not be the intention of the Legislature in amending the provi sions contained in Section 115 (1) (b) (ii) of the new Code. For the reasons aforesaid, the legal objection raised by Sri V- V. Srinivasachar, learned counsel for the appellant, is rejected". A Full Bench of Punjab and Haryana High Court has also laid down the principle for determining the bar under Section 195 (1) (b) (ii), Crpc in the case Harbansh Singh v. State of Punjab, AIR 1987 Pandh 19 in the following lines: "the net result of the discussion is that Karnail Singh's case 1983 Cr LJ 713 (Punjab and Haryana) is correctly decided and depicts the correct position of Law. Section 195 (1) (b) (ii) of the new Code is limited in its operation only to the offences mentioned in this Section if committed in regard to a document produced or given in evidence in such proceedings, while the document is in the custody of the Court. It has no application to a case in which a document is fabricated prior to its produc tion or given in evidence. ".;