- ( 1. ) WHILE hearing Criminal Misc. Application No. 5095 -M of 1984 Harbans Singh etc. v. State. M. M. Punchhi J. formed the view that a Division Bench decision of this Court reported as Karnail Singh v. State of Punjab 1983 Cri LJ 713 went against the Supreme Court judgment reported as Gopalakrishna Menon v. D. Raja Reddy . , AIR1983 SC 1053 , 1983 (2 )Crimes584 (SC ), 1983 (2 )SCALE236 , (1983 )4 SCC240 , [1983 ]3 SCR836. In the view of M. M. Punchhi, J. , as the principle of Gopalakrishna Menon's case (supra) seems to have escaped the notice of the learned Judges in Karnail Singh's case 1983 Cri LJ 713 (Punj and Har) (supra), the latter judgment might be rendered per incuriam. On this basis, this matter in which the interpretation of Section 195 (1) (b) (ii) of the Code of Criminal Procedure 1973 (hereinafter referred as the new Code) is involved is referred to a larger Bench. Criminal Revision No. 517 of 1985 Baldev Singh etc. v. State of Punjab was also directed to be heard with Criminal Misc. No. 5095 -M of 1984.
( 2. ) THE question of judgment in case of Karnail Singh's case (supra) being per incuriam does not arise. Per incuriam means 'through want of care'. It means an order of Court obviously made through some mistake or under some misapprehension. Karnail Singh's case was decided by a Division Bench of this Court on 20th of October, 1982 and Gopalakrishna Menon's case was decided by the Supreme Court on 5th of September, 1983. As Gopalakrishna Menon's case was decided after the decision of Karnail Singh's case, there was no question of noticing of the former case by the Division Bench of this Court in Karnail Singh's case. This ends the reasoning about per incuriam as referred by the learned Single Judge. Since the correctness of Karnail Singh's case 1983 Cri LJ 713 (Punj and Har) has come to be doubted in the light of Gopalakrishna Menon's case 1983 Cri LJ 1599 (SC), we did not feel inclined to decline the reference on the basis of per incuriam, as noticed in the previous paragraph, but heard the parties in detail in regard to the scope of Section 195 (1) (b)' (ii) of the new Code after its amendment and whether the amendment had brought any change in the area of its operation. The facts in Karnail Singh's case were that Karnail Singh petitioner and another had instituted a civil suit on 25th of September, 1980 against his brother Jarnail Singh and others for a declaration that they were owners in possession of the land and for a permanent injunction restraining the defendants from interfering in their possession. The suit was based on the will allegedly executed on 27th of April, 1977 by Karnail Singh's father Hari Singh. Jarnail Singh during the pendency of the said suit made an application before the Senior Superintendent of Police, Amritsar, alleging that the will relied upon by Karnail Singh was forged and, therefore, he had committed offence under Sections 420, 467 and 471 of the Penal Code. The police registered the case and commenced investigation. Karnail Singh approached the High Court for quashing of the first information report and the investigation. In Karnail Singh's case 1983 Cri LJ 713, the Division Bench of this Court was seized of the question whether the police had the statutory power to investigate the cognizable offences under Section 471, 475 or 476 of the Penal Code vis -a -vis the bar under Section 195 (1) (b) (ii) of the new Code with regard to the cognizance thereof by a court. While deciding that case on the basis of arguments addressed before the Bench it went into the scope of Section 195 (1) (b) (ii) of the new Code after amendment; as to what was the effect of the deletion of the words, "by a party to any proceeding in any Court' from Section 195 (1) (c) of the Code of Criminal Procedure, 1898, (hereinafter referred as the old Code), while enacting Section 195 (1) (b) (ii) of the new Code. The Division Bench also decided the question whether after amendment Section 195 (1) (b) (ii) of the new Code applied to the case where forgery was committed much earlier than the production or giving the document in evidence in a proceeding, or only if the offences mentioned in this sub -section are committed when the document is in court. The Division Bench after relying on Patel Laljibhai Somabhai v. State of Gujarat ,, AIR1971 SC 1935 , 1971 Crilj1437 , (1971 )2 SCC376 , [1971 ]suppscr834 , Raghunath v. State of U. P. ,, AIR1973 SC 1100 , (1973 )1 SCC564 , Mohan Lal v. State of Rajasthan ,, AIR1974 SC 299 , 1974 Crilj350 , (1974 )3 SCC628 , Legal Remembrancer of Government of West Bengal v. Haridas Mundra , AIR1976 SC 2225 , 1976 Crilj1732 , (1976 )1 SCC555 , [1976 ]2 SCR933 , 1976 (8 )UJ133 (SC ) and Dr. S. L. Goswami v. High Court of Madhya Pradesh ,, AIR1979 SC 437 , 1979 Crilj193 , (1979 )1 SCC373 , [1979 ]2 SCR385 , held: On principle as also on the sound canons of construction, it is apt to confine Section 195 (1) (b) (ii) of the Code to forgeries committed in respect of a document during its custody by the court or its fabrication in the course of the proceedings itself. In para 11 of this case the Division Bench observed: In view of the wholly settled state of law declared by the Supreme Court under Section 195 (1) (c) of the old Code, all that now remains is to examine the marginal change in the language of Section 195 (1) (b) (ii) of the Code by deleting the words "by a party to any proceeding in any Court. ". There is no indication that in doing so, whilst enacting the new Code, Parliament intended to make any radical change or departure from the settled law earlier. It is well settled that the legislature is presumed to know the existing state of law when making a change or amendment in the statute. The Statements of Objects and Reasons and the detailed notes on clauses of the Cr. P. C. 1973, give no indication of materially altering or overriding the earlier precedential construction of the predecessor provision. It, therefore, seems inapt to read more into the marginal change than the plain words there of would indicate. To my mind the deletion of the words 'by a party to any proceeding in any court' in Section 195 (1) (b) (ii) of the Code has only the effect of enlarging the protection envisaged by the section to the witnesses, scribes, attestors, etc. , of the document with regard to which the offence has been committed. This class of persons would now be equally within the ambit of the provision irrespective of the fact whether they are parties to the proceedings or not. Apart from this, I am unable to read any other meaningful change brought in the law in this context. All other considerations authoritatively noticed in the precedents referred to above with regard to the larger principles of interpretation, the aptness of the narrower construction, the other provisions of the Code including Section 476, etc. , remain as much applicable and relevant to Section 195 (1) (b) (ii) of the Code as they were to its predecessor provision. Consequently, the binding precedent applicable to the earlier provisions of Section 195 (1) (c) of the old Code would be equally attracted in the case of the present provision subject to the marginal change noticed above.
( 3. ) IN Gopalakrishna Menon's case 1983 Cri LJ 1599 (SC) (supra), on facts, the High Court of Andhra Pradesh held: From the above provisions, it is quite manifest that the offence which is mentioned in the complaint carries greater punishment, namely, 10 years' imprisonment, whereas under Section 463, IPC, the punishment is infinitely lesser than the one under Section 467, namely, two years or fine or both. That apart in a case reported in 1979 Cri LR at 228 (229?), it has been held by the Gujarat High Court that the offences laid down under Sections 474 and 471, IPC, are distinct. In that case it was contended that a complaint by A to police under Section 474 that B was in possession of forged documents with intention to use them in Court proceedings and thereafter B producing documents in Court and thereby committing offence under Section 471 did not wipe out the offence under Section 474. The High Court held under these circumstances that the Magistrate can proceed with case under Section 474 against B grounding the reason that Section 195 (1) (b) (ii) is not attracted. The penal provisions as it is fairly settled ought to be interpreted very strictly and therefore on the foregoing analysis I have no hesitation in holding that Section 463 cannot be construed to include Section 467 as well and, therefore, certainly it is competent for the Magistrate to take cognizance of and try the same as it is needless to follow the case. Hence the contention on the basis of the provisions in Section 340 of the Code of Criminal Procedure fails and the same is rejected. The question before the Supreme Court in this case was: The short question arising in this appeal by special leave is whether in the absence of necessary complaint by the Civil Court where a money receipt alleged to have been forged was produced, prosecution for offences punishable under Sections 467 and 471 read with Section 34 of the Indian Penal Code would be maintainable. The Supreme Court observed : If Section 195 (1) (b) (ii) is attracted to facts of the present case, in the absence of a complaint in writing of the Civil Court where the alleged forged receipt had 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 the prosecution a full -dressed trial. After quoting Sections 463 and 467 of the Penal Code, it was observed: The purpose of our extracting the two sections of the Penal Code is to show that the offence which is made punishable under Section 467 of the Penal Code is in respect of an offence described in Section 463. Once it is accepted that Section 463 defines forgery and Section 467 punishes forgery of a particular category, the provision in Section 195 (1) (b) (ii) of the Code would immediately be attracted and on the basis that the offence punishable under Section 467 of the Penal Code is an offence described in Section 463, in the absence of a complaint by the Court the prosecution would not be maintainable. We have no doubt in our mind that the High Court took a wrong view of the matter. (Emphasis supplied by me) The words with emphasis extracted above from Gopalakrishna Menon's case 1983 Cri LJ 1599 (SC) make it clear that the view of the Andhra Pradesh High Court that Section 463 of the Penal Code cannot be construed to include Section 467 of that Code was held to be wrong and was set aside. The Supreme Court in Gopalakrishna Menon's case also assumed certain facts, to which Section 195 (1) (b) (ii) of the new Code, in the view of their Lordships, was attracted for application, as the extracted portion from that judgment shows that the observations started with the use of the word 'if. The word, 'if is always expressive of a condition. In legal and ordinary phraseology, the word imports a condition. The Supreme Court, therefore, holding the view of the High Court on Section 463 of the Penal Code as wrong and assuming certain facts and conditions on the existence of which, if Section 195 (1) (b) (ii) applied drew the conclusion which it expressed. The question of the scope of Section 195 (1) (b) (ii), after its amendment, was neither specifically raised, discussed, nor adjudicated by their Lordships in Gopalakrishna Menon's case 1983 Cri LJ 1599 (SC) (supra ). At the same time it has to be noted with interest that in this case the Supreme Court referred to , AIR1971 SC 1935 , 1971 Crilj1437 , (1971 )2 SCC376 , [1971 ]suppscr834 Patel Laljibhai Somabhai v. State of Gujarat and their Lordships observed; "not the conclusion but the ratio supports our view. " I am making a detailed reference to Patel's case in the ensuing paragraphs of this judgment to highlight the ratio of that case and the different aspects of Section 195 (1) (c) of the old Code, which were taken note of and adjudicated upon by the Supreme Court. The post -amendment scope of Section 195 (1) (b) (ii) was not considered by the Supreme Court in Gopalakrishna Menon's case, when in Karnail Singh's case 1983 Cri LJ 713 (Punj and Har) this was the matter directly in issue and decided in the light of the binding precedent by the Supreme Court in Patel's case. I do not find that Karnail Singh's case in any way is in conflict with Gopalakrishna Menon's case. The question which has been debated before us is that after amendment of Section 195 of the old Code its scope has been widened and the omission of the words "by a party to any proceeding in any court" from the new provision is an indication to that effect. It has been urged that it is no longer permissible to hold that Section 195 (1) (b) (ii) of the new Code only applies to the offences mentioned in that provision while a document is in custodia legis but will include in its operation, the document about which such offence, if committed, even prior to its production or being given in evidence in court. The learned Counsel for the petitioners urged that Patel's case (1971 Cri LJ 1437) (SC) and other cases following that authority are no longer good law after the amendment of the Code and cannot operate to limit the area of operation of this provision to a narrow field. The order of reference in this case also refers to the amendment and its effect. ;