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TMI Blog2005 (3) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... of the will allegedly executed by Mukhtar Singh Marwah on 20.1.1993. The petition was contested by the respondents on the ground that the will was forged. On their application the appellant no.1 filed the original will in the Court of District Judge on 10.2.1994. Thereafter, the respondents moved an application under Section 340 Cr.P.C. requesting the Court to file a criminal complaint against appellant no.1 as the will set up by him was forged. A reply to the said application was filed on 27.7.1994 but the application has not been disposed of so far. Thereafter, the respondents filed a criminal complaint in May 1996 in the Court of Chief Metropolitan Magistrate, New Delhi, for prosecution of the appellants and their mother Smt. Trilochan Kaur Marwah under Sections 192, 193, 463, 464, 465, 467, 469, 471, 499 and 500 IPC on the ground that the will of Mukhtar Singh Marwah set up by the appellants is a forged and fictitious document. It is stated in the complaint that though Mukhtar Singh Marwah was an educated person, but the will bears his thumb impression. He had accounts in Bank of Tokyo and Standard Chartered Bank which he used to operate by putting his signature. Under the will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate ; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (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) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. 5. The principal controversy revolves round the interpretation of the expression "when such offence is alleged to have been committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capable of two interpretations. One possible interpretation is that when an offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 IPC is alleged to have been committed in respect of a document which is subsequently produced or given in evidence in a proceeding in any Court, a complaint by the Court would be necessary. The other possible interpretation is that when a document has been produced or given in evidence in a proceeding in any Court and thereafter an offence described as aforesaid is committed in respect thereof, a complaint by the Court would be necessary. On this interpretation if the offence as described in the Section is committed prior to production or giving in evidence of the document in Court, no complaint by Court would be necessary and a private complaint would be maintainable. The question which requires consideration is which of the two interpretations should be accepted having regard to the scheme of the Act and object sought to be achieved. 7. Dr. A.M. Singhvi, learned senior counsel for the appellants, submitted that the purpose of Section 195 is to bar private prosecution where the cause of justice is sought to be per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tricted meaning should be given. Learned counsel has also submitted that in certain situations where the forgery has been committed at any time prior to the production or giving in evidence of the document in Court, it may not at all be possible for such Court to effectively form an opinion as to whether it is expedient to file a complaint and that may facilitate the escape of a guilty person. Shri Narula has also submitted that in Sachida Nand Singh, the Court has reiterated and has adopted the same view which has been taken in several earlier decisions of this Court, and only in Surjit Singh a discordant note has been struck which is not correct. 9. The scheme of the statutory provision may now be examined. Broadly, Section 195 Cr.P.C. deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X of the IPC and the heading of the Chapter is \026 'Of Contempts Of The Lawful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the Sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the Sections which follow them than might be afforded by a mere preamble.(See Craies on Statute Law, 7th Ed. Pages 207, 209). The fact that the procedure for filing a complaint by Court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz., which is committed after the document is produced or given in evidence in Court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in Court cannot, strictly speaking, be said to be an offence affecting the administration of justice. 11. It will be useful to refer to some earlier decisions touching the controversy in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 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 Court approved the view taken by Allahabad High Court in Emperor vs. Kushal Pal Singh (supra) and held as under in para 7 of the report : "(i) The underlying purpose of enacting Section 195(1)(b) and (c) Section 476 seems to be to control the temptation on the part of the private parties to start criminal prosecution on frivolous vexations or unsufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process or the administration of public justice which is the direct and immediate object or the victim of these offences. As the purity of the proceedings of the court is directly sullied by the crime, the court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party who might ultimately suffer can persuade the Civil Court to file complaint. (ii) the offences about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal Remembrancer, Govt. of West Bengal vs. Haridas Mundra 1976(1) SCC 555 Bhagwati, J. (as His Lordship then was), speaking for a three Judge Bench observed that earlier there was divergence of opinion in various High Courts, but the same was set at rest by this Court in Patel Lalji Bhai Somabhai (supra) and approved the view taken therein that the words of Section 195(1)(c) clearly meant the offence alleged to have been committed by a party to the proceeding in his character as such party, i.e. after having become a party to the proceeding, and Sections 195(1)(c), 476 and 476-A (of the old Code) read together indicated beyond doubt that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c) to the offences mentioned in the said Section when committed by a party to a proceeding prior to his becoming such party. Similar view has been taken in Mahadev Bapuji Mahajan vs. State of Maharashtra 1994(3) Supp SCC 748 where the contention that the absence of a complaint by the revenue court was a bar to taking cognizance by the criminal court in respect of offences under Sections 446, 468, 471 read with Section 120-B IPC which were committed even b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and fabricated an agreement dated 26.7.1978 and had forged the signature of Smt. Dalip Kaur and on the basis thereof, they had made a claim to remain in possession of a house. The Magistrate took cognizance of the offence on 27.9.1983. The appellants thereafter filed a civil suit on 9.2.1984 wherein they produced the agreement. It may be noticed that the cognizance by the criminal Court had been taken much before filing of the Civil Suit wherein the agreement had been filed. During the course of discussion, the court not only noticed Gopalkrishna Menon (supra), but also quoted extensively from Patel Lalji Bhai (supra). Reference was then made to Sanmukh Singh vs. The King AIR 1950 Privy Council 31 and Sushil Kumar vs. State of Haryana AIR 1988 SC 419 wherein it has been held that the bar of Section 195 would not apply if the original document had not been produced or given in evidence in Court. Then comes the passage in the judgment (para 10 of the reports) which we have reproduced in the earlier part of our judgment. The observations therein should not be understood as laying down anything contrary to what has been held in Patel Lalji Bhai, but was made in the context that bar co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 340 Cr.P.C. and sub-section (1) and (2) thereof are being reproduced below : 340. Procedure in cases mentioned in Section 195 - (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, - (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is nonbailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded. 19. There is another consideration which has to be kept in mind. Subsection (1) of Section 340 Cr.P.C. contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ird ed.) para 313, the principle has been stated in the following manner : "The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong." The learned author has referred to Sheffield City Council v. Yorkshire Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under : "Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by judges in developing the common law. '\005 the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society." In S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trued is not of universal application which must necessarily be observed in every case. The Court after referring to Murlidhar Meghraj Loya vs. State of Maharasthra AIR 1976 SC 1929, Kisan Trimbak Kothula vs. State of Maharashtra AIR 1977 SC 435, Superintendent and Remembrancer of Legal Affairs to Govt. of West Bengal vs. Abani Maity AIR 1979 SC 1029 and State of Maharashtra vs. Natwarlal Damodardas Soni AIR 1980 SC 593 held that the penal provisions should be construed in a manner which will suppress the mischief and advance the object which the legislature had in view. 23. That apart, the section which we are required to interpret is not a penal provision but is part of a procedural law, namely, Code of Criminal Procedure which elaborately gives the procedure for trial of criminal cases. The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by Court. A penal statute is one upon which an action for penalties can be brought by a public officer or by a person aggrieved and a penal act in its wider sense includes every statute creating an offence against the State, whatever is the character of the penalty for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished." 25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. 26. In the present case, the will has been produced in the Court subsequently. It is nobody's case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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