M.B.Sharma, J. - (1.) In the above numbered two miscellaneous petitions which have been referred by the learned Single Judge to the larger Bench, the construction, ambit and scope of section 195(1) (b) (ii), Cr. P.C. is under consideration. The learned Single Judge has referred the following questions to the larger Bench. 1. Whether the bar for taking cognizance of offence punishable under section 463, 471, 475 and 476, I.P.C. as contained under section 195(1)(b)(ii), Cr. P.C. would operate in cases, where initiation of criminal proceedings in a criminal court preceeds the production or tendering of the alleged forged documents in evidence in any court; 2. Whether the bar for taking cognizance under section 195(1) (b) (ii), Cr. P.C. is limited for offence committed in respect of documents, while such documents were already in custody of the Court. 3. Whether the forgery should have been committed in respect of document so as to affect the proceedings of the court in any manner or with a design to affect them for applicability of bar for section 195(1)(b)(ii) of the Code of Criminal Procedure; 4. What is the effect of decision of the words By party in any proceeding which occur in section 195(1) (b) (ii) of Cr. P.C. 1898, while enacting the new Code of Criminal Procedure, 1973, and whether a document which has been forged during the proceedings of the Court and is subject matter of an enquiry and the same is before the Courts, i.e. the Civil Court as well as the Criminal Court, which of the proceedings should be given precedence. Section 195(1) (b) (ii) of the Code of Criminal Procedure, 1973 was earlier section 195(1)(c) of the Code of Criminal Procedure, 1898. But it will be seen from a bare comparison of both these sections that whereas under clause (1)(c) of section 195 ofthe Code of Criminal Procedure, 1898) the offence should have been committed by a party to any proceedings in any court, under the present sub-section (1)(b)(ii) of section 195 of the Code of Criminal Procedure, 1973 it is not necessary that the offence should have been committed by a party to the proceedings and what is required is that the offence should be alleged to have been committed by anyone is respect of a document produced or given in evidence in such proceedings. Thus, it will be clear that so far as the condition precedent that the offence should be alleged to have been committed in respect of a document produced or given in evidence is concerned, the only difference is that whereas under the earlier Code of Criminal Procedure, 1898 the bar is extended in case the offence would have been committed in respect of a document produced or given in the proceedings by any party to the proceedings, but now it is not so necessary under the new Code of Criminal Procedure, 1973 and if offence mentioned there is committed by even one who is not a party to the proceedings and it is in respect of the document which has been produced or given in evidence, the bar contained in section 195(1)(b) (ii), Cr. P.C. shall be attracted. But still, so far as the law prior to coming into force the Code of Criminal Procedure, 1973, which came into force in April 1, 1974, is concerned, it will still be relevant/for the purpose of answering the questions referred to this larger Bench because one of the conditions precedent for the applicability of the aforesaid provision i.e. the offence should have been committed in respect of a document produced or given in proceedings in the court, is still there. In the case of Patel Lalji Bhai v. State of Gujarat, the Apex Court has taken a view that only if a person becomes a party to the proceedings and commits offence mentioned in section 195(1)(c) of the Code of Criminal Procedure, 1898, in respect of a document produced or given an evidence, the bar contained therein shall be extended. As said above, we are presently concerned with the question whether only if the offence mentioned in section 195(1)(b)(ii) Cr. P.C. is committed in respect of a document produced or given in evidence in the proceedings in the court while the document is in custody in the court only then the bar contained in section 195(1) (b)(ii), Cr. P.C. will be attracted or even if the forgery is committed before the production of the document in the proceedings in the court the bar contained therein shall be attracted and no court can take cognizance except on the complaint of the court concerned. Learned Single Judge has observed that there is conflict of decisions of various High Courts. There are three views. The first view is that since the forged document has been produced in the civil Court there is a bar for taking cognizance as contained in section 195(1)(b)(ii), Cr. P.C. the other view it the forgery must be committed in respect of the document which has been produced in the court i.e. the factum of forgery is post filing the document and not in respect of the document which is forged prior to filing in any court of law. The third view is that the document must have been forged at any time before or after the production or giving the document in evidence and if it is tendered in evidence in a proceeding then as soon as it is so tendered in evidence the bar would operate. It will be proper for us to read section 195(1)(b)(ii), Cr. P.C. which reads as under; 195(1) No court shall take cognizance (a) (b) (i) (ii) 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, or (iii) except on the complaint in writing of that court or of some other court to which that court is subordinate. In the case of Harbans Singh v. State of Punjab. Full Bench of the Punjab & Haryana High Court said that the provisions of section 195(1)(b)(ii), Cr. P.C. of the new Code admit of two interpretations one is the wider view, and the other a restricted or a narrow view. According to the wider view, the bar of that section would be applicable to all the cases involving the offences mentioned therein in respect of a document produced or given in evidence in the court irrespective of the time when the offence was alleged to have been committed while as per the restricted view, the bar of this clause would be attracted only if the offence is alleged to have been committed in respect of documents which are already produced or given in evidence and not to the offences committed earlier to the proceedings in the Court. The court then dealt with various situations, which can arise while dealing with the provisions of section 195(1)(b)(ii), Cr. P.C. The learned Judges of the Full Bench said that this controversy is not new and it existed even under the old Code. The Court further said that section 195(1)(b)(ii), Cr. P.C. is limit in its operation only to the offences mentioned in this section if committed in regard to the documents produced or given in evidence in the proceedings while the document is in custody of the court.
(2.) The Apex Court in the case of Gopal krishna Menon v. D. Raja Reddy and anothier, was dealing with the case where alongwith the plaint for the recovery of damages for the alleged breach of the terms of agreement as well as for refund of Rs. 20,000/-, the original contract as also the money receipts for Rs. 20,000/- in the suit were produced. Thereafter, a complaint was filed against the plaintiff by the defendant in the suit alleging that the forgery of his signatures has been committed and the offence under section 467 and 471, I.P.C. has been committed. The plaintiff objected to the maintainability of the criminal case and moved the Andhra Pradesh High Court for quashing the proceedings on the ground that the proceedings were barred in view of section 195(i)(b)(ii), Cr. P.C. The High Court of Andhra, Pradesh held that the Magistrate could proceed with the case and the aforesaid section 195(1)(b)(ii), Cr. P.C. is not attracted. The Andhra Pradesh High Court said that it is fairly settled that the penal provisions ought to be interpreted very strictly and therefore section 463 cannot be construed to include section 467 as well and it was not competent for the Magistrate to take cognizance of and try the same. The Apex Court referred to its earlier case S.L. Goswami v. High Court of Madhya Pradesh, and to the other case of Patel Lalji Bhai (supra) and said that section 466 I.P.C. was an offence as described in section 463, I.P.C. which was committed in relation to a record or proceeding of or in a court of justice. What was said in the aforesaid decision in regard to the offence under section 466, I.P.C. has full application to an offence under section 367, I.P.C. The Apex Court in para 7 said In view of what we have said above, the prosecution in the instant case on the basis of private complaint and in the absence of a complaint from the appropriate Civil Court where the alleged fraudulent receipt has been produced, would not be suitable. On the basis of the aforesaid authority and in the light of the facts of that case it was contended that mere production of forged document in the court will attract the bar of section 195(l)(b)(ii), Cr. P.C. and it is not necessary that the document must be in the custody of the court and then forgery in relation to it should have been committed. We are of the opinion that so far as aforesaid case of Gopal Krishna Menon (supra) is concerned neither the Apex Court was called upon to deal with the question of scope of section 195(l)(b)(ii), Cr. P.C. as it is in the present form nor the said question was specifically raised before the Apex Court. The Apex Court did not discuss the scope of section 195(l)(b)(ii), Cr. P.C. and has not adjudicated the matter. Even the Apex Court referred to its earlier decision in the case of Patel Lalji Bhai (supra) and said that the ratio of that case supports the view, which we are taking. A look at the case of Patel Lalji Bhai (supra) will show that though the Apex Court was dealing with the question in respect of prohibition as contained in section 195(1)(c) of the Code of Criminal Procedure, 1898. The suit in which the document was filed had been dismissed and thereafter a complaint was filed in the Court of Chief Judicial Magistrate for an offence under section 467 and 471, I.P.C. The document, the basis of the suit, was said to have been forged. The suit was, as said earlier, was dismissed. The Magistrate prima facie found that the accused had fraudulently used in the civil suit the forged cheque. The question of necessity of complaint by the civil Court under section 195(1)(c) of the Code of Criminal Procedure, 1898 was also raised in the committing court but placing reliance on the decision of the case of Bombay High Court in Emperor v. Mallappa, the Magistrate held that provision to be inapplicable to that case. He committed the case to the court of Asst. Sessions Judge. The matter was then referred to the High Court by the Sessions Judge with a recommendation that the commitment order be quashed. The Gujarat High Court placing reliance on the majority view in the case of All Bin Rajak (1968) 9 Guj. LR. 1 declined the recommendation and upheld the commitment order. The Apex Court read section 195(1)(c) alongwith section 476, Cr. P.C. 1898. The Apex court said that In case orT offences specified in clause (c) they are required to be committed by a party to a proceeding in that court with respect to a document produced or given in evidence in that court. The offence covered by section 471, I.P.C. from its very nature must be committed in the proceeding itself by a party thereto. With respect to such an offence also expression of opinion by the court as to the expediency of prosecution would serve a useful purpose. The Apex Court adopted strict construction and said that - All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in section 195(1)(c), Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to his becoming such party. It is no doubt true that quite often - if not almost invariably the documents are forged for being used or produced in evidence in Court before the proceedings started. But that in our opinion cannot be the controlling factor, because to adopt that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years later by some other party would also be subject to sections 195 and 476, Cr. P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognised by section 190, Cr. P.C. without promoting the real purpose and object underlying these two sections. The court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint. The Apex Court ultimately allowed the appeal in part and said In this case the offence under section 471, I.P.C. is clearly covered by the prohibition contained in section 195(1)(c) but the offence under section 467, I.P.C. can in our view be tried in the absence of a complaint by the court unless it is shown by the evidence that the documents in question were forged by a party to the earlier proceeding in his character as such party, in other words, after the suit had been instituted. We are therefore of the opinion that so far as the case of Gopal krishna Menon (supra) is concerned, it has not taken a different view than the one taken in the case of Patel Lalji Bhai (supra) rather the ratio of the case of Patel Lalji Bhai has been approved. It will be further sent that so far as the case of Patel Lalji Bhai (supra) is concerned, it was a judgment by Honble three Judges of the Apex Court and the judgment in the case of Gopal krishna Menon is by two Honble Judges of the Apex Court and even otherwise the view of the larger Bench has to be preferred than the view taken by the two judges.
(3.) The Apex Court in the case of AR. Antulay v. Ramdas Sriniwas Nayak and another in para 6 dealt with the criminal jurisprudence where any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The Apex Court said that -While section 190 of the Criminal Procedure Code permits anyone to approach the Magistrate with a complaint it does, not prescribe any qualification the complainant is required to fulfill to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in section 195 to 199 of the Cr. P.C. These specific provisions clearly indicate that in the absence of any such statutory provisions a locus standing of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless control indicated by a statutory provision. In the case of Shankarlal v. Chaturbhuj & Ors., where a copy of the will was produced, the original will was not produced, this court said that if the original document alleged to be forged is not produced but its copy has been produced, then absence complaint under section 195(1)(b)(ii), Cr. P.C. cannot operate as bar for taking cognizance. In that case of Shankarlal (supra) this court referred to the case of Sammukhsingh and another v. The King, wherein the Privy Council held that section 195(1), Cr. P.C. only refers to a document alleged to be forged and not a copy of it. the Privy Council said that if the document has not been produced or given in evidence then bar contained in section 195(1)(c) Cr. P.C. cannot operate. In the case of Ram Narain v. State of Rajasthan this Court took a similar view. The Apex Court in the case of Amanullah Quareshi v. Union of India, while dealing with a case perjury under section 193 I.P.C. said that false statement must be shown to have been made in judicial proceedings before an offence under section 193 I.P.C. can be said to be made out. In the case of State of Karnataka v. Hemareddy and another, the Apex Court said that where abetted the commission of offence of forgery but the forged document was not put in evidence in the suit against him, no cognizable could be taken against him under section 193, I.P.C. and section 195(1)(b) would not be attracted. The Apex Court further said that the legislature could not have intended to extend the prohibition contained in section 195(1), Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to his becoming such party. In our opinion, mere deletion of words by party in any proceedings which occurred in section 195(1)(c) of the old Code from the present sub-section 195(l)(b)(ii), Cr. P.C. does not make any difference so far as the law in relation to forgery committed prior to the production of the document or forging the document after its production or tendering it in evidence in the court is concerned.;