- (1.) THIS revision petition of accused Ramcharan is directed against the appellate judgment of Additional Sessions Judge, Bundi, dated July 20, 1962, upholding the judgment of Munsiff-Magistrate First Class, Bundi, dated July 1, 1961, by which the accused had been convicted of offences under sec. 468 and 417 I. P. C. He has been sentenced to rigorous imprisonment for 18 months and a fine of Rs. 200/-for the offence under sec. 468 I. P. C. while a sentence of rigorous imprisonment for 6 months has been imposed for the other the offence under sec. 417 I. P. C. In default of payment of the fine, the accused has been ordered to undergo further rigorous imprisonment for 4 months. The sentences have been ordered to run concurrently.
(2.) THE allegations of the prosecution may be briefly stated. Accused Ram Charan held a general power of attorney on behalf of Smt. Kaushlya Bai, who was related to him. In order to take possession of two fields in village Chadgaon (Khasra Nos. 55 and 190) and two other fields in village Hirapur (Khasra Nos. 13 and 33), he forged the following documents with the purpose of using them as genuine - (i) Letter (Ex. P. 2) No. 1603 dated May, 19, 1954, purporting to issue from Commissioner, Kotah Division, to Tehsildar, Keshorai Patan, about the fields in village Hirapur. (ii) Letter (Ex. P. 1) No. 1571 dated May 13, 1955, purporting to issue from Commissioner, Kotah Division, to Tehsildar, Keshorai Patan, about the fields in village Chadgaon. (iii) A copy (Ex. P. 6) purporting to be a true copy of the judgment of Commissioner, Kotah Division, in a revenue suit between 'smt. Kaushlya Bai and the State and others" in respect of the fields in villages" Chadgaon and Hirapur. (iv) A copy (Ex. P. 10) purporting to be a true copy of letter Ex. P. 1 of Commissioner, Kotah Division No. 1571 dated May 13, 1955, addressed to Tehsildar, Keshorai Patan, about the fields in village Chadgaon and bearing a forged endorsement of the Naib-Tehsildar. It is alleged that the first two of these forged documents were produced by the accused on May 21, 1955, before Azizur Rehman P. W. 3, who was then working as Tehsildar of Keshorai Patan, with the false representation that they were genuine documents. At that time Krishna Ballabh Lakhotia P. W. 2 was the Reader of the Tehsildar, and when he raised an objection that the documents did not bear the seal of the Commissioner's office, the accused gave the explanation that many other papers had been received without seals and "that he had obtained the two letters from the Commissioners office with much difficulty after an effort of 4 or 5 days. Under the instructions of the Tehsildar, Krishna Ballabh Lakhotia then made separate endorsements on the two documents for a compliance of the Commissioner's orders by the concerned 'girdawar'. Those endorsements were signed by Azizur Rehman the same day. THE Tehsildar further gave orders for the delivery of the two letters, with his endorsements, back to the accused so that he might take them personally for securing their compliance. On May 25, 1955, the accused came back to the Tehsildar with an endorsement at the back of letter Ex. P. 1 asking for a clarification from the Tehsildar whether the possession was to be delivered to Smt. Kaushlya Bai or to her agent Ram Charan (accused ). This endorsement had been made by the concerned officer of the Madoli circle and, while presenting it, the accused told the Tehsildar that he held a registered power of attorney on behalf of Smt. Kaushlya Bai and that the possession of the fields could be delivered to him as her agent, THE Tehsildar obtained the 'mukhtar-nama', which happened to be with the Tehsil Accountant in another connect. on, and passed an order on Ex. P. 1 for the delivery of possession to the accused as agent of Smt. Kaushlya Bai. Possession was accordingly given to the accused by Patwari Bhanwarlal P. W. 4 of Chadgaon, in the presence of Girraj P. W. 5. Similarly, possession over the two fields of village Hirapur was given to him by Patwari Hazari P. W. 18 in the presence of Ram Narain P. W. 12. Compliance reports were noted on letters Ex P. 1 and P. 2. THEreupon Tehsildar Azizur Rehman made the mutation entries in the concerned registers on June 8, 1955. Later, the forgeries were detected and first information report Ex. P. 40 was made at the instance of Commissioner, Kotah Division, on August 6, 1955, to the Superintendent of Police. THE police registered the case and challaned the accused on July 24, 1956. It is alleged that, in the meantime, the accused recorded his confessional statement (Ex. P. 23) on August 16, 1955, in the presence of Jalaluddin P. W. 22 who was then posted as Tehsildar-cum-Magistrate Second Class at Taleda. Specimens of the writing of the accused were obtained by Ghanshyamdass P. W. 17, Magistrate Second Class Patan, during the course of the investigation, and were sent to Krishna Behari Lal P. W. 24 who has been examined as an expert. The accused completely denied that he forged any document, or took the possession of the fields in question. He pleaded that he recorded his confessional statement under the threats and at the persuasion of the Sub-Inspector of Police who was sitting with the Magistrate at the time his statement was recorded. He categorically denied having produced documents Exs. P. 1 and P. 2 in the Tehsil. He examined himself on oath in his defence and reiterated his innocence. He even denied that specimens of his hand-writing were obtained by a Magistrate and stated that the Sub-Inspector caught hold of his hand and copied out some documents against his wishes. Further, the accused denied that he was the 'mukhtar-am' of Smt. Kaushlya Bai. It has been strenuously urged by the learned counsel for the petitioner that cognizance of the offence under sec. 468 I. P. C. could not have been taken by the learned Magistrate as the accused was the agent of a party to the proceedings and the case fell within the purview of sec. 195 (l) (c) of the Code of Criminal Procedure. It has been pointed out that no complaint had been made by the Tehsildar or by some other court to which the Tehsildar's court was subordinate. It has not been disputed by learned Assistant Government Advocate that a Tehsildar's court is a court within the meaning of sec. 195 (1) (c) Cr. P. C. while dealing with mutation proceedings. He has, however, argued that the protection under sec. 195 (1) (c) Cr. P. C. is available only to a party to the proceedings in the court and not to the party's agent. While the learned counsel for the petitioner has placed reliance on King vs. Bankim Chandradas (1) for the argument that the protection is not confined to the parties to the proceedings, learned Assistant Government Advocate has relied on Fatima Beebee vs. ] Raman Chetty (2), Lala Mathur Prasad vs. Pitambar Singh (3), Abdulrahim Khan vs. Musammat Pusiabai (4), Ganda Singh Kochar vs. Emperor (5), Ponnusami Udayar vs. Emperor (6), Emperor vs. Mallappa Tejappa Bidikar (7) and Prabhatranjan Barat vs. Umashanker Chatterji (8 ). It may be pointed out that, as has already been mentioned, the accused stated on oath during the course of the trial that he was not the 'mukhtar-am' of Smt. Kaushlya Bai, and so the argument of his learned counsel that he was entitled to the protection of sec. 195 (l) (c) Cr. P. C. on account of his being Smt. Kaushlya Bai's agent, is difficult to appreciate. However, the prosecution having come with the allegation that he was the 'mukhtar-am', it is necessary to examine the argument further. Sec. 195 of Code of Criminal Procedure has been in existence from the inception of the present Code. Although it was amended in 1923 in certain respects, the effect of the amendment has been to secure greater protection to the parties to the proceedings in a court, by excluding the possibility of their prosecution by private individuals for offences connected with the administration of justice. Thus, a private individual cannot now apply for the court's sanction to the prosecution of a party in respect of the offences mentioned in sec. 195 (1) (c) of the Code and a prosecution can be launched only if the concerned court comes to the conclusion that it is necessary. The amendment has only re-emphasised the purpose of the section which is to protect the parties, who move a court, from being harassed by others. Sec. 195 (l) (c) of the Code of Criminal Procedure reads as follows : - "195. (1) No Court shall take cognizance - . . . . . . . . . . . . . . . . . . . . . . . . . . (c) of any offence described in sec. 463 or punishable under sec 471, secs. 475 or 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. " On a plain reading, the section is applicable to a "party" to a proceeding in any Court and there is no justification for extending its scope so as to cover the party's agent. This obvious interpretation will neither restrict the scope of the section nor bring within its purview persons to whom the protection was not intended to be granted. A recognised agent or pleader cannot be said to be a party to the proceedings in a Court, for an agent or pleader merely represents the party and does not supplant him. So far as the Code of Civil Procedure is concerned, Order III thereof deals with recognised agents and pleaders of parties and defines the scope of their function as such. The agents and the pleaders continue to retain their separate identity so that the parties are only those referred to in Order I of the Code. Even in proceedings other than those to which the Code of Civil Procedure is applicable, the parties are the persons at whose instance, or against whom, proceedings are taken up, and not their agents or pleaders. If it had been the intention to bring other persons also under the protection of sec. 195 (l) (c) Cr. P. C. , it was hardly necessary to provide in such clear terms that it would be available only in cases where the offences described in that section were alleged to have been committed by a "party" to any proceeding in a Court. This appears to me to be the natural and ordinary interpretation of the words "a party to any proceeding" used in sec. 195 (l) (c ). The language of the section is clear and unequivocal and does not, to my mind, admit of any other interpretation. That being so, the question of interpretation does not really arise. 7. I am fortified in the view I have taken, by serveral decisions of various High Courts. In Chandmal vs. The Empress of India (9) it was held by Plowden, J. that sec. 467 of the Criminal Procedure Code was "not applicable to the case of Chandmal, as it relates only to a complaint against 'a party' to the proceedings in which the false document has been given in evidence, and Chandmal was not a party, but merely the agent of the party for whom he acted". So also, it was held in Fatima Beebee vs. Raman Chetty (2) that a recognised agent would not be a party to the proceedings within the meaning of sec. 195 (l) (c)" for the purposes of the Code of Civil Procedure and still less for the purposes of sec. 195 (l) (c), Code of Criminal Procedure. " In Prabhatranjan Barat vs. Umashankar Chatterji (8) Rankin C. , J. held that "a person who is not a party gets no protection from clause (c) of sub-sec. (1) of sec. 195 and is not within the purview of sec. 476" in respect of the offences mentioned in clause (c ). His Lordship refused to give "any unusual or extended meaning to the phrase 'party to any proceeding' in clause (c ). Even a next friend or a guardian ad litem has not been held to be a party to the proceeding in a court, in Emperor vs. Mallappa Tejappa Bidikar (7 ). A similar view has been taken in Satyanarayana vs. Anjareddi (10) and in In re Rayalla Ramappa (11 ). In Lala Mathur Prasad vs. Pitambar Singh (3), Abdul Rahim vs. Musammat Pusiabai (5) and Pennusami Udayar vs. Emperor (6), the Party's counsel or vakil has not been held to be a party. A contrary view has no doubt been taken in King vs. Bankim Chandra Das (l) and it has been held that the word "party" cannot be given the restricted meaning appropriate in ordinary civil cases, if it is to have any effect as regards criminal court, and that sec. 195 "by its very nature, is made to cover a wide field". The judgment was delivered by Roxburgh, J. sitting singly. His Lordship, however remarked - "the purpose of sec. 195 (l) (c) is well known and obvious. It is to protect parties who move a Court from being harassed by others who consider themselves aggrieved, particularly if those others happen to be successful in a dispute before the court with regard to a particular document. " And he reached the conclusion that, in the circumstances of the case, the accused was a party to the proceedings within the meaning of the word as used in sec. 195 (l) (c ). His Lordship considered a Division Bench decision of his Court, Prabhat-ranjan Barat vs. Umashankar Chatterji (8) in which Rankin C. , J. made the remark referred to above. It was while discussing that observation that Roxburgh, J. made his observation and concluded the judgment by holding that the accused was a party to the liquidation; proceedings as the Company could only act through some human being and that human being, in the circumstances, was the accused, who was its director. At any; rate, the decision in King vs. Bankim Chandra Das (l) being that of a single judge of the Calcutta High Court could not negative the decision in Prabhatranjan Barat vs. Umashankar Chatterji (8 ). It would thus follow that the accused could not seek to avail of the protection of sec. 195 (l) (c) Cr. P. C. as he was not a party to the proceedings in the court of the Tehsildar but was merely the agent of a party. Having [put aside the technical objection of the learned counsel for the petitioner about the jurisdiction of the trial court, it has next to be seen whether the conviction of the accused is justified for the offences under secs. 468 and 417 I. P. C. It is not in dispute that the four documents in question are forged documents. The question is who forged them. The admissible evidence about the forging of the documents by the accused, consists of the statements of Tikamchand P. W. 16 and Rakhab Chand PW. 8. Tikamchand has stated that he might have typed documents Exs. P. 1, P. 2 and P. 6 at the instance of the accused. As his testimony is indefinite, the accused cannot be held liable on its basis, for the forgery. Rakhab Chand P. W. 8 has, however, stated that document Ex. P. 10 was written out by him at the request of the accused thereafter. The witness wrote the words "true copy" on Ex. P. 10 and he received no remuneration from the accused for obliging him in this manner. He has admitted that the accused himself knew reading and writing and there is therefore no satisfactory reason why Rakhbchand should have prepared the document innocently for the accused. His testimony may be said to be that of an accomplice and, as it has not been corroborated, it is not possible to maintain the conviction of the accused on its basis for the offence under sec. 468 I. P. C. The learned Assistant Government Advocate has in fact frankly conceded that the direct evidence about the forgery is unsatisfactory and he has prayed that the accused may be convicted of the offence under sec. 471 IPC instead. Against this, learned counsel for the petitioner has argued that there could be no such alteration as the accused was bound to be prejudiced as he was never called upon to meet the charge under sec. 471 IPC at the trial. He has placed reliance on Akbar Hussain vs. King Emperor (12) to support his argument. He has also argued that the accused could not be said to have used the documents in question as genuine in the proceedings before the Tehsildar. So far as the factual side of the argument of the appellant's learned counsel is concerned, it may be mentioned that the statement of Krishna Ballabh Lakhotia P. W. 2, who was the Tehsildar's Reader, clearly proves that the accused produced letters Exs. P. 1 and P. 2 on May 21, 1955, in the Tehsil, and that he gave the explanation that the documents did not bear the seals as many other papers were received without seals. The accused went on to clarify that he had obtained those letters from the Commissioner's office with difficulty, after making efforts for 4 or 5 days. It was on this assurance that the witness took the letters to the Tehsildar and wrote out orders for their compliance, in accordance with the Tehsildar's directions, which were signed by the Tehsildar. Krishna Ballabh Lakhotia has further stated that the accused again came to him on May 25, 1955, in the Tehsil, and got a further order written on Ex. P. 1 for the delivery of possession to him in his capacity as 'mukhtar-am' of Smt. Kaushlya Bai. Tehsildar Azizur Rehman P. W. 3 has not been able to recollect definitely whether it was the accused; who produced letters Exs. P. 1 and P. 2 before him on May 21, 1955, but he has stated that the orders on them were passed by him and were written out under his instructions. Besides, the witness has clearly stated that it was the accused who produced letter Ex. P. 1 before him on May 25, 1955, at which he passed the order (marked B to B) for the delivery of possession to him, and that he made the mutation entries in the two registers when he received the compliance reports. Reference may also be made to the statement of Gajanand P. W. 10 who was the revenue clerk of the Tehsil. He has stated that it was the accused who brought letters Exs. P. 1 and P. 2 on the two occasions and that he wrote out the order dated May 25, 1955 on Ex. P. 1 for the delivery of possession. It must therefore be held that the accused fraudulently and dishonestly used letters Exs. P. 1 and P. 2 as genuine and it can easily be concluded, in the circumstances of the case, that he knew that they were forged documents. The fact that he gave an elaborate explanation for the absence of seals on Exs. P. 1 and P. 2 further proves his guilty knowledge. It has also to be remembered that it was the accused who went to Chadgaon and Hirapur and received the possession of the fields on behalf of Smt. Kaushlya Bai on the authority of the forged documents. This has been proved by the statements of Bhanwarlal P. W. 4, who was the Patwari of Chadgaon, Hazari P. W. 18, who was the Patwari of Hirapur and 'motbirs' Gir Raj P. W. 5 and Ram Narayan P. W. 12. The accused has not at all succeeded in rebutting all this evidence and it must be held that he committed an offence under sec. 471 IPC. It is true that the accused was not charged for the offence under sec. 471 IPC as he had been charged for the offence under sec. 468 IPC but there can be little doubt that under sec. 236 Cr. P. C. he could have been charged for that offence also because the allegations against him all along were of such nature that it was doubtful, at the commencement of the trial, whether he had committed the offence under sec. 468 IPC or whether he was also guilty of that offence as well as of the offence under sec. 471 IPC. Sec. 236 Cr. P. C. contemplate an uncertainty at the commencement of the trial as to whether the "facts which the prosecution hoped to prove would, if proved, constitute the one offence or the other. Thus if a series of acts are of a certain nature and their nature is such as to raise a doubt as to which of the several offences the facts to be proved shall constitute, the section would come into operation. In the instant case, the police challaned the accused with the allegations that he forged the documents in question in order to obtain the land, and that he thereby deceived Azizur Rehman and actually obtained the possession of the land through the Patwari. So the allegation was not only for forging the documents but also for producing them fraudulently before the Tehsildar for the purpose of taking the fields in possession, and all these acts of the accused formed part of one transaction which was successfully completed. A common purpose is clearly perceptible in all these actions of the accused and they must be held to be parts of the same transaction within the meaning of sec. 236 Cr. P. C. The accused could therefore be charged both for the commission of forgery under sec. 468 IPC and for using the forged documents as genuine under sec. 471 I. P. C. Moreover, there was the other charge against the accused for the commission of the offence under section 420 IPC in which it was clearly stated that he had dishonestly produced the two forged letters before Azizur Rehman in order to cheat him. Thus the accused was actually charged for acts which amounted to forgery and using as genuine a forged document. There can thus be little doubt that he could have been charged with having committed both, or any of those offences in the alternative. As such, he can, by virtue of sec. 237 Cr. P. C. be convicted of the cognate offence under sec. 471 I. P. C. although he was only charged for the offence under sec. 468 IPC. The object of sec. 237 Cr. P. C. is to prevent the failure of justice in cases where the commission of an offence is proved but no specific charge has been framed for it, and the provisions of the section must therefore be held to be applicable on the facts of this case. The provisions of sec. 237 Cr. P. C. are subject to the rule of prejudice, but I am not persuaded that there could be any prejudice to the accused, in his trial, because of the omission to frame a separate and specific charge for the offence under sec. 471 IPC as, for the reasons already stated, he all along knew that the accusation against him was that he had fraudulently and dishonestly used the forged documents as genuine. The learned counsel for the accused have not been able to suggest what possible prejudice the accused could be said to have suffered in his trial in the facts and circumstances of this case. Akbar Hussain vs. King Emperor (12) cited by them is therefore of no avail. Learned Assistant Government Advocate has cited Jagdeo Parshad vs. Emperor (13) in which the accused was charged of the offence under sec. 467 IPC but it appeared in evidence that he had committed an offence under sec. 471 IPC for which he might have been charged under sec. 236 Cr. P. C. and it was held that the accused could be convicted of the offence under sec. 471 IPC. It is, however, hardly necessary to look for any abstract pronouncement on a point like this when, as has already been stated, it is amply clear that in this case secs. 236 and 237 Cr. P. C. are both attracted. I would therefore alter the conviction of the accused from sec. 468 IPC to sec. 471 IPC.
(3.) AS regard the offence under sec. 417 I. P. C. , it has been argued by the learned counsel for the petitioner that the fields which are said to have been delivered to the accused on the basis of the forged documents on his false representation, did not belong to Tehsildar Azizur Rehman P. W. 3, and that an offence of cheating could not therefore be said to have been committed. The argument has no force. An offence under sec. 417 IPC can be said to be committed both where the accused deceived some one and induced him to deliver a certain property to him by fraudulent or dishonest representation, as also where the person deceived is proved to have done some thing, which he was not bound to do, on a fraudulent or dishonest inducement by the accused, and such an act caused, or was likely to cause, damage to him in body, mind, reputation or property of the person on whom the deception was practised. There is no requirement of the law that the property fraudulently or dishonestly obtained by the accused must belong to the person on whom the deception is practised. The property may be "any property as is obvious from sec. 415 IPC which defines the offence of cheating. Besides, it has been proved that the accused not only deceived the Tehsildar and thereby persuaded him to deliver the possession of the fields to him, but he also intentionally induced him to pass an order for the delivery of the fields which he would not have passed but for the deception. It has also been proved that the deception practised by the accused was likely to cause harm to him in property and reputation and the Tehsildar has stated that he has actually beer} demoted on account of the order which he passed for the delivery of the fields on the basis of the forged documents. It cannot therefore be said that the conviction of the accused for the offence under sec. 417 IPC is unjustified. No other point has been urged on behalf of the accused and the revision petition is therefore dismissed, except that the conviction is altered from sec. 468 IPC to sec. 471 IPC. No change is made in the other conviction under sec. 417 IPC or in the sentences which have been awarded, so that the accused shall under go rigorous imprisonment for 18 months and pay the fine of Rs. 200/- for the offence under sec. 471 I. P. C. and shall undergo rigorous imprisonment for 6 months for the offence under sec. 417 I. P. C. In default of payment of the fine, he shall suffer further rigorous imprisonment for 4 months. The sentences shall run concurrently. The accused is on bail and District Magistrate, Bundi, is directed to apprehend him and send him to prison to serve out the remaining sentences. .;