- (1.) S. K. Phaujdar, J. Through the present application the powers of this Court under Section 482, Cr. P. C. have been invoked to set aside an order dated 23-4-96 recorded by the Vth Addl. Ses sions Judge, Gorakhpur, in Crl. Revision No. 158 of 1995, with a further prayer to stay the proceedings in Complaint Case. No. 692. 0 of 1993, State v. Umesh and others, now pending before the court of the CJM, Gorakhpur. On presentation of the instant application, an interim order was recorded suspending the operation of the impugned order dated 23-4-96 recorded by the Addl. Sessions Judge, Gorakhpur. The respondents were noticed. A counter-af fidavit was filed on behalf of respondent No. 3, Smt. Subhagi. A rejoinder affidavit was also placed on record on behalf of the applicants.
(2.) RESPONDENT No. 3 filed Case No. 6920 of 1993 for offences under Sections 419,420,467,468 and 120- B, IPC, relating to P. S. Cantt. District Gorakhpur on the ground that in Case No. 2 of 1993 pending before the SDM, Bansgaon, Gorakhpur, the present two applicants had produced another woman as the present respondent No. 3 posing her to be Subhagi Devi and placed a compromise application with her signature and tried to get hold of the lands of the respondent No. 3 through illegal means. When this fact was brought to the notice of the said SDM, the latter was of the view that the action of the present respondent No. 3 was suspicious and hence he forwarded the matter to the CJM for further action. This order was passed by the SDM on 23-8-93. On receipt of the matter from the SDM, the CJM opened the records of the Case No. 6920 of 1993, State v. Umesh and others, and recorded an order dated 12-7-95 to the effect that there should have been a proper complaint under Section 195, Cr. P. C. and a mere forwarding of the materials to the CJM by the SDM was not contemplated under the law. Accordingly, he was of the view that no cognizance could be taken and the entire matter was not maintainable. This order dated 12-7-1995 was challenged by Subhagi Devi in the aforesaid Crl. Revision No. 158 of 1995 which was heard by the Vth Addl. Sessions Judge, Gorakhpur. The learned Addl. Ses sions Judge dealt with the provisions of Section 195 (1) as also Section 340, Cr. P. C. and was of the view that the order dated 12-7-95 could not be sustained. The Ses sions Judge was of the view that the report of the SDM, Bansgaon, together with the complaint of Subhagi, should have been read together as the complaint and the CJM should have proceeded according to law. This order has been challenged by the present two applicants on the ground that there had been no proper complaint under Section 195 read with Section 340, Cr. P. C. and the CJM had recorded the right order and the Addl. Sessions Judge was wrong to direct consideration of the report of the SDM and the report of Subhagi Devi together. In the counter-affidavit it was indi cated that in pursuance to the revisional order dated 23-4-1996 the CJM, Gorakhpur, had already recorded a conse quential order dated 15-5-96 summoning the present applicants and against that summoning order the applicants had preferred another Criminal Revision No. 146 of 1996 before the Vlth Addl. Sessions Judge, Gorakhpur, and the same was dis missed on 25-1- 1997. Itwas indicated that this application under Section 482, Cr. P. C. was, therefore, not maintainable. The order in Crl. Revision No. 146 of 1996 dated 25-1-97 is an annexure to this counter-affidavit. It was held herein that the order of summoning was but an inter locutory order not open to revision and the applicant should have agitated the matter under Section 204, Cr. P. C. before the trial Court itself, as observed in the case of Kailash Chowdhury. The order that was challenged in Crl. Revision No. 146 of 1996 was the consequential order and it was not dismissed on merits. It was dis missed on the procedural aspect only. The dismissal of the revisional order or the right of the applicants to challenge the summoning order before the trial Court itself may not debar them from challenging the validity of the order of the Vth Addl. Session Judge in giving a direction to the CJM to act on the reference of the SDM and the report of Subhagi Devi. The present application is, therefore, main tainable, subject to the interpretation of Sections 195 and 340, Cr. P. C.
(3.) SECTION 195, Cr. P. C. 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. It requires that no court shall take cog nizance of any offence described in Sec tion 463 or punishable under SECTIONs 471, 475 or 476 of the IPC 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. The plain read ing of the complaint of Smt. Subhagi indi cates that the forgery and cheating, if any, was committed in respect of certain Vakalatnama and compromise petition filed before the SDM, Bansgaon, in a case that was being heard by him. Prima facie , therefore, it was an offence described in SECTION 463, IPC, that is of forgery and making a false document, in respect of a document produced in a proceeding in a court and cognizance could have been taken only on the complaint in writing of that court, i. e. the SDM or some other court to which the SDM was subordinate. SECTION 340, Cr. P. C. finds place in Chapter XXVI of the Cr. P. C. which makes provisions as to offences affecting the ad ministration of justice and SECTION 340 lays down the procedure in cases of offen ces mentioned in SECTION 195, Cr. P. C. Under this section when upon an applica tion made to a court it is of opinion that it is in the interest of justice that a enquiry should be made into an offence referred in clause (b) of sub-section (1) of SECTION 195, Cr. P. C. which appears to have been committed in relation to a proceeding in that court, the court may make a prelimi nary enquiry and record a finding to that effect and then make a complaint thereof in writing and only thereafter send it to a Magistrate of 1st Class having jurisdiction. In the instant case, the alleged forgery, as stated above, was committed in respect of a Vakalatnama and a compromise petition before the SDM, and this fact was brought to the notice of the SDM. He should have, under SECTION 340, Cr. P. C. made a preliminary enquiry to satisfy himself that the offence was committed and, there after, he should have made a complaint. There has been, however, no preliminary enquiry nor has there been any complaint by he SDM. Taere was only a reference by him to the CJM. It is worth to note that there was no complaint to the CJM by Smt. Subhagi Devi. The Vth Addl. Sessions Judge while disposing of the criminal revision No. 158 of 1995 had before him the facts that Subhagi had filed before him an ap plication for action under Section 195 read with Section 340 (1), Cr. P. C. and the SDM had perused the records and was prima facie satisfied that the action of the ap plicants was suspicious. Accordingly, he forwarded the matter to the CJM. The revisional court had reasoned that the ref erence had all the elements of a complaint as it was in writing and was done by the Magistrate concerned with a view that an action under the Code of Criminal Proce dure would be taken by the CJM in the matter and, as such, the reference amounted to a complaint. On the basis of this interpretation of a complaint, the revisional court was of the view that the reference was to be read alongwith the report of Subhagi Devi.;