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Philip v. Raphael
Structured Summary of the Provided Opinion
Factual and Procedural Background
The complainant (petitioner) alleges that on 17 July 1978 accused Nos. 1 and 2 forged a document in his name purporting to be an agreement to sell his land; accused Nos. 3 and 4 were allegedly witnesses and accused No. 5 a mediator. A complaint was filed in the Sub Divisional Magistrate's Court, Alwaye, on 18 August 1978; the court took cognisance and issued process the same day. The matter was later transferred to the Judicial First Class Magistrate's Court, Parur, and registered as CC. 112 of 1980 on 1 February 1980. The accused were arrested and released on bail on 26 April 1980.
Meanwhile, on 25 July 1978 accused Nos. 1 and 2 filed a civil suit (OS 119 of 1978) in the Sub Court, Parur, based on the same document; that suit was withdrawn by the plaintiffs on 18 August 1981.
While the civil suit was pending, the accused objected to the criminal complaint on the ground that Section 195 of the Code of Criminal Procedure (CrPC) had been violated — specifically alleging absence of a complaint in writing by the court — and the objection was upheld by the lower criminal court, which discharged the accused under Section 245(2) CrPC. The complainant challenges that discharge order in this revision petition. The scope of Section 195(1)(b)(ii) (new Code) is thus directly in issue.
Legal Issues Presented
- Whether Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973 (which omits the phrase "by a party to any proceeding in any court" that appeared in the old Code) bars a private complaint where the alleged offence relating to documents given in evidence was committed before the commencement of the judicial proceeding in which the document is produced.
- Whether, given the omission in the 1973 Code, the judicially settled ratio under the old Code (restricting Section 195 to offences committed by a party in the character of such party after becoming a party) still applies.
- Application of the foregoing legal principles to the facts: specifically, whether offences alleged to have been committed on 17 July 1978 (before institution of suit on 25 July 1978) fall within Section 195(1)(b)(ii) and whether the complaint in respect of Section 471 IPC (allegedly arising after institution of the suit) is maintainable.
Arguments of the Parties
Petitioner's (Complainant's) Position
- The complainant alleged forgery dated 17 July 1978 and proceeded by lodging a private criminal complaint on 18 August 1978; he challenges the lower court's discharge order in revision.
- Implicitly contends that Section 195(1)(b)(ii) of the new Code does not bar his private complaint insofar as the alleged forgery (Ss. 465 and 467 IPC) was committed before the suit was instituted and therefore Section 195 is not attracted in respect of those offences.
Respondents' (Accuseds') Position
- Counsel for the respondents contends that, because the framers of the 1973 Code omitted the words "by a party to any proceeding in any court" from Section 195, the old Supreme Court decisions interpreting the corresponding provision in the old Code no longer apply and Section 195 operates to bar private complaints whenever the offence is alleged to have been committed in respect of a document produced or given in evidence in any proceeding in court.
- Counsel relied on a decision reported as Ram Pal Singh v. State of U.P. (1982 Crl. L.J 424) for the proposition that the omission effects a change in law and therefore Section 195 is a bar to prosecution in the present facts.
- Counsel for the respondents also relied on local decisions of the court including Krishnan Nair v. State of Kerala and Chacko v. State of Kerala to support their view; the opinion notes the relevance and limitations of those citations.
- It was also contended that the lower court's decision was based on a concession by the complainant's counsel and therefore the complainant should be estopped from challenging the discharge on revision (the opinion rejects that estoppel argument for legal questions).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Patel Laljibhai Somabhai v. State of Gujarat ((1971) 2 SCC 376 : AIR 1971 SC 1935) | Settled the judicial conflict on the scope and applicability of Section 195 of the old CrPC; adopted a strict construction confining the prohibition to offences committed by a party to the proceeding in his character as such party (i.e., after becoming a party). | The court relied on the broader reasoning of this decision (not limited to wording alone) and held that the principles underlying it remain applicable under the new Code despite omission of specific words; the Supreme Court's reasoning guided the present interpretation. |
| Emperor v. Kushal Pal Singh (AIR 1931 All. 443) | Earlier decision approved by the Supreme Court; represents the line of authority supporting the strict construction of Section 195 under the old Code. | The Supreme Court's approval of this decision was noted; the present court treated it as part of the authoritative line of decisions that informed the restrictive interpretation of Section 195. |
| Raghunath v. State of U.P ((1973) 1 SCC 564 : AIR 1973 SC 1110) | Reaffirmed the strict construction that Section 195(1)(c) of the old Code applied only to offences by a party as such party. | Used as supporting authority for the proposition that the old jurisprudence confined Section 195 to offences committed by parties in their character as parties; court treated it as reaffirmation of the line of cases. |
| Mohan Lal v. The State of Rajasthan ((1974) 3 SCC 628 : AIR 1974 SC 299) | Reaffirmed the earlier interpretation of Section 195 as explained by the Supreme Court. | Counted among the series of decisions upholding the restricted scope of Section 195 under the old Code; relied upon to show continuity of principle. |
| Legal Remembrancer of Govt. of West Bengal v. Haridas Mundra ((1976) 1 SCC 555 : AIR 1976 SC 2225) | Held that Sections 195(1)(c), 476 and 476A read together indicate the legislature could not have intended to extend the prohibition to offences committed by a party prior to his becoming a party. | Relied upon to underscore that the statutory scheme as a whole supported the restricted application of Section 195 to offences having a sufficient nexus with proceedings and typically committed by parties during proceedings. |
| Ram Pal Singh v. State of U.P (1982 Crl. L.J 424) | Held (as cited by respondents) that omission of the words "by a party to any proceeding" in Section 195(1)(c) of the new CrPC effects a change in law — i.e., that the bar applies more broadly under the 1973 Code. | The court considered this decision but expressly rejected its reasoning as incomplete: the present court held that the Supreme Court's prior conclusion was not based solely on the omitted phrase and therefore the Ram Pal Singh conclusion was not persuasive. |
| Krishnan Nair v. State of Kerala ((1962) 1 Crl. L.J 340) | Earlier High Court decision cited by respondents; referenced in the Supreme Court's 1971 discussion. | The opinion notes that Krishnan Nair was cited in the 1971 Supreme Court decision and that the point in its present form was not the subject matter of discussion; the present court treated it as not decisive for the issue before it. |
| Chacko v. State of Kerala ((1983) KLT 1060) | Decision of the court relied on by respondents. | The opinion records reliance by respondents but observes that the precise point in the present form was not previously the subject of discussion in these cases; thus these rulings were not controlling here. |
Court's Reasoning and Analysis
The court proceeded through a structured analysis, grounded in statutory text, the legislative history (Law Commission report), and the line of judicial decisions interpreting the old Section 195. The court's reasoning unfolded as follows:
- Identification of the textual change: the 1973 CrPC omission of the words "by a party to any proceeding in any court" from the corresponding provision was acknowledged, and the precise wording of Section 195(1)(b)(ii) (new Code) was set out.
- Review of controlling precedent: The court recounted the Supreme Court's analysis in Patel Laljibhai Somabhai (1971) and related cases, where two divergent interpretations were noted but the Supreme Court adopted a strict construction confining the prohibition to offences committed by a party in the character of a party. The court emphasized that the Supreme Court's decision was guided by several factors rather than a single textual phrase.
- Explanation of the policy and structural reasons underlying the earlier restrictive interpretation: the opinion lists the reasons relied upon earlier (summarized in seven points) — including the importance of Section 190 (right to approach the court), the statutory scheme linking Sections 195 and 476/340 and related provisions, the need for a close nexus between the offence and the proceeding so the court can form an opinion on expediency, and the notion that documents forged long before proceedings should not automatically be subject to the bar because that would unduly restrict private prosecution rights under Section 190.
- Legislative intent and Law Commission recommendations: The Law Commission had recommended widening coverage to include witnesses and others, and the framers of the 1973 Code omitted the words "by a party..." to adopt that recommendation. However, the court found that deletion was not intended to disturb the core principles identified by the Supreme Court that limit the bar to situations where the court can properly assess expediency, i.e., those offences having a sufficient nexus with the proceedings.
- Textual-function analysis: The court observed that Section 195 directs a court to file a complaint in respect of specified offences when they are committed in relation to proceedings or documents produced in evidence; Section 195 does not expressly focus on the identity of the offender and thus the omission of those words does not by itself expand the Code's protective policy in a way that would defeat the legislature's evident purpose.
- Application to the facts: Applying the above principles, the court concluded that offences under Sections 465 and 467 IPC were alleged to have been committed on 17 July 1978 (before the suit instituted on 25 July 1978); therefore Section 195(1)(b)(ii) is not attracted in respect of those offences and a private complaint in respect of them is maintainable. By contrast, the offence under Section 471 IPC arose only after the suit was instituted; for that offence Section 195(1)(b)(ii) would apply and the complaint in respect of Section 471 could not be pursued in a private complaint.
- Procedural and remedial conclusion: The court rejected the contention that the lower court decision turned solely on a concession by complainant's counsel (holding that a legal concession does not estop a party from challenging the law on revision), and also rejected the argument that the omission of words in the 1973 Code altered the core principle — concluding instead that the lower court's discharge order was incorrect insofar as it dismissed the entire private prosecution; consequently the discharge order was set aside and the matter remanded for fresh disposal consistent with the court's observations.
- Policy observation: The court accepted the practical point that if the respondents' construction were accepted, a simple tactic of filing and withdrawing a civil suit could be used to foreclose criminal remedy in respect of forgeries, which Parliament could not have intended to protect; this reinforced the conclusion that the omission of the phrase was not meant to produce such an outcome.
Holding and Implications
Core Holding:
ORDER SET ASIDE; CASE REMANDED FOR FURTHER PROCEEDINGS — The lower court's order discharging the accused is set aside and the case is remanded to the lower court for fresh disposal in light of the observations made in this judgment. The petition is allowed (the opinion concludes with "Allowed").
Immediate Consequences for the Parties:
- The private complaint is held maintainable in respect of offences alleged to have been committed on 17 July 1978 (Sections 465 and 467 IPC), because those offences pre-dated the institution of the suit and therefore Section 195(1)(b)(ii) (new Code) does not bar private prosecution for them.
- The private complaint is not maintainable in respect of the offence under Section 471 IPC insofar as that offence arose only after the suit was instituted; the lower court is not entitled to proceed with trial in respect of the Section 471 allegation in a private complaint.
- The lower court's discharge of the accused is set aside and the matter is remitted for fresh consideration and disposal according to law and consistent with the court's reasoning.
Broader Legal Implications (as addressed in the opinion):
- The court held that the omission of the phrase "by a party to any proceeding in any court" from Section 195(1)(b)(ii) of the 1973 Code does not, by itself, alter the core principles established by the Supreme Court under the old Code. Those principles — which focus on the close nexus between the offence and the proceeding and the court's capacity to form an opinion on the expediency of prosecution — remain relevant and applicable.
- The Law Commission's intent to broaden the provision to include witnesses and others was noted, but the court concluded that Parliament did not intend, by the omission, to displace the established limitation that the court should be able to satisfactorily determine the expediency of prosecution; hence the legislative change was not construed as widening the bar to private complaints in the manner urged by the respondents.
- The opinion implied a protective policy against tactical maneuvers (e.g., filing and withdrawing suits to avoid criminal accountability for pre-existing forgery), concluding Parliament would not have intended such insulation for culprits by textual omission.
Note: This summary is confined strictly to the facts, argumentation, authorities cited, reasoning, and conclusions contained in the provided opinion. No additional facts, precedents, or extraneous inferences have been introduced.
1. I would have thought that the decision of the Supreme Court in Patel Laljibhai Somabhai v. State Of Gujarat. ((1971) 2 SCC 376 : AIR. 1971 SC. 1935) settled the judicial conflict on the scope and applicability of S. 195 of the Code of Criminal Procedure. But, contends counsel, the framers of the new Code of 1973 have deliberately omitted the words “by any party to any proceeding in any court” in S. 195 and therefore, the ratio of the decisions of the Supreme Court interpreting the old section cannot apply. The complainant, the petitioner here, alleges that on the 17th of July, 1978 accused Nos. 1 and 2 forged a document in his name purporting it to be an agreement to sell his land. Accused Nos. 3 and 4 are alleged to be witnesses to this deed and accused No. 5 is said to be the mediator. The complaint was filed in Sub Divisional Magistrate's Court, Alwaye, on 18th August 1978 and the court took cognisance of the case also on the same date and issued process to the accused. When the case stood posted for prosecution evidence, it was transferred to the Judicial First Class Magistrate's Court, Parur, where it was filed as CC. 112 of 1980 on 1-2-1980. The accused were arrested on 26-4-1980 and released on bail on the same date.
2. Meanwhile, on the 25th of July, 1978, barely 8 days, after the alleged execution, accused Nos. 1 and 2 filed a suit as OS 119 of 1978 before the Sub Court, Parur, on the strength of the same document. It is now stated that the plaintiffs themselves withdrew the suit on 18-8-1981.
3. When the suit was pending, the accused challenged the validity of the complaint on the ground that there was no complaint in writing by court and hence S. 195 of the Code was violated. The objection was upheld and the accused were discharged under S. 245(2) of the Code.
4. The complainant challenges this order in this revision. The scope of S. 195(1)(b)(ii) is thus directly in issue in this case.
5. S. 195(1)(b)(ii) of the new Code read thus:—
“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.—(1) No Court shall take cognizance—
(a)(i) xxxxxxxxx
(b)(i) xxxxxxxxx
(ii) of any offence described in S. 463, or punishable under S. 471, S. 475 or S. 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
xxxxxx”.
6. The corresponding provision in the old Code was S. 195(1)(c).
7. The difference in the phraseology in the two relevant sections under the old and new Code are highlighted thus:—
OLD CODE (1898) NEW CODE (1973) S. 195(1)(c) S. 195(1)(b)(ii) (1) No court shall take cognizance— (c) xxxx of any offence described in S. 463 or punishable under S. 471, S. 475 or S. 476 of the same Code (b)(ii)……of any offence described in S. 463, or punishable under S. 471, S. 475 or S. 476 of the said code. When such offence is alleged to have been committed xxxx When such offence is alleged to have been committed xxxxx by a party to any proceeding in any court xxxxx xxxxxx xxxxx In respect of a document produced or given in evidence. in respect of a document produced or given in evidence, xxxxx in such proceeding in a proceeding in any court except on the complaint in writing of such court, or of some other courts to which such court is subordinate. except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
8. It is also relevant to refer to an allied S. 340(1) (S. 476(i) of the old Code):—
S. 476(1)—Old Code
“When any Civil. Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in S. 195, sub-section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or, if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate:
Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.
For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class.”
S. 340(1) New Code
“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 S. 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 non-bailable 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.”
9. In interpreting S. 195 of the old Code, the Supreme Court in (1971) 2 SCC 376 : AIR. 1971 SC. 1935 noted the two divergent views in decided cases thus:—
“According to one view, to attract the prohibition contained in cl. (c) the offence should be alleged to have been committed by the party to the proceeding in his character as such pary, which means after having become a party to the proceeding, whereas according to the other view the alleged offence may have been committed by the accused even prior to his becoming a party to the proceeding provided that the document in question is produced or given in evidence in such proceeding. The language used seems to us to be capable of either meaning without straining it.”
and held:
“xxxxxx It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in S. 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party.”
10. The Supreme Court approved the decision in Emperor v. Kushal Pal Singh* (AIR. 1931 All. 443) (SB) and the longline of decisions following the same. This decision of the Supreme Court was reaffirmed in Raghunath v. State of U.P ((1973) 1 SCC 564 : AIR. 1973 SC. 1110), Mohan Lal v. The State of Rajasthan ((1974) 3 SCC 628 : AIR. 1974 SC 299) and in Legal Remembrancer Of Govt. Of West Bengal v. Haridas Mundra ((1976) 1 SCC 555 : AIR. 1976 SC. 2225) where again, it was held thus:—
“Ss. 195(1)(c), 476 and 476A read together indicated beyond doubt that the legislature could not have intended to extend the prohibition contained in S. 195(1)(c) to the offences mentioned therein when committed by a party to a proceeding prior to his becoming such party”.
11. The contention that is advanced is, that the reasoning that S. 195 can apply only to offences committed by a party as such party can no longer be pressed into service as the crucial words “by a party to any proceeding in any court” have been omitted in the new section. It is sufficient, according to counsel for the respondents that offence is alleged to have been committed in respect of a document produced or given in evidence.
12. The reasons which weighed with the Supreme Court in the decisions referred to above for concluding that S. 195 is attracted only if the offence is committed by a party after he becomes a party to the suit are these:—
(1) The main purpose of S. 190 to ensure freedom and safety of the subject by giving him a right to approach the Court if he considers that a wrong has been done to him. Sub-section (1) of S. 195 places some restrictions on this general power ((1971) 2 SCC 376 : AIR. 1971 SC. 1935 at 1937).
(2) S. 195 and 476 (340 now), 476-A (340(2)) form part of a statutory scheme dealing with the subject of prosecution for offences against administration of justice and have to be read together to have a more vivid picture of the legislative intendment in preserving the prohibition in the two clauses in S. 195(1) and the procedure for initiating prosecution ((1971) 2 SCC 376 : AIR 1971 SC. 1935 at 1938/1939.)
(3) The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. The offences about which the court alone, to the exclusion of the aggrieved private party has jurisdiction to file the complaint is in respect of a commission of ap offence which has a reasonably close nexus with the proceedings in court, so that it can, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. ((1971) 2 SCC 376 : AIR 1971 SC. 1935 at 1940).
(4) These are offences committed by a party to a proceeding in that court.
(5) To adopt the construction that documents forged long before the commencement of a proceeding would also be subject to Ss. 195 and 476, would unreasonably restrict the right under S. 198 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. ((1971) 2 SCC 376 : AIR 1971 SC. 1935 at 1940).
(6) The Code posulates formation of judicial opinion that it is expedient to hold an enquiry into an offence referred to in clause (b) or clause (c) of S. 195(1) which appears to the court to have been committed either in or in relation to a proceeding in that court. Expression of a opinion by the court as to the expediency of prosecution serves a useful purpose because of the close nexus between the offence and the proceeding.
(7) The object of the legislature creating a bar against the cognisance of private complaints in regard to the offences mentioned in S. 195(1)(b) and (c) is both the same and the court has been entrusted to consider the expediency in the larger interest of a criminal trial and as it is the proceedings in court that is the target of the offence of perjury.
13. Parliament was aware or at least should be deemed to have been aware of the decisions of the Supreme Court when enacting the new code in 1973. The objects and reasons extracted in the 41st Report of the Law Commission read thus:—
“15.90 S. 195 deals with prosecution for three different groups of offences, viz. contempt of lawful authority of public servants, certain offences against public justice and certain offences relating to documents given in evidence. The second and third groups are connected in that both of them affect the administration of justice. Clause (a) of sub-section (1) and sub-section (5) concern public servants, sub-section (2) and sub-section (3) concern the courts and sub-section (4) relates to both. It would in our opinion, be conducive to clarity if the two subjects are dealt with in separate sections. We recommend that S. 195 may be split up on lines indicated above.
15.93 The purpose of the section is to bar private prosecutions where the course of justice is sought to be perverted, leaving it to the court itself to uphold its dignity and prestige. On principle there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses also. Witnesses need as much protection against vexatious prosecutions as parties and the court should have as much control over the acts of witnesses that enter as a component of a judicial proceeding as over the acts of parties. If, therefore the provisions of clause (c) are extended to witnesses the extension would be in conformity with the broad principle which forms the basis of S. 195.”
14. The decisions of the Supreme Court clearly hold that complaint of court is not necessary when the offence is committed before the commencement of the proceedings in court. Recognising this accepted position, the Law Commission moved forward in the same direction and took one step ahead to recommend that the safeguard in this provision should not be confined to parties to the proceedings but should extend to others including witnesses as well. The framers of the Code accepted the recommendation and deleted the words ‘by a party to any proceeding in any court’, so that the court's right to file complaint was not confined to parties. The deletion of the words was not intended to affect the right in respect of the offences committed prior to the proceedings in court or to achieve any object which was farthest from their minds.
15. The right to file a complaint is contained in S. 190 of the Code However there as a statutory curtailment of this right under S. 195, when under certain circumstances the court alone can file a complaint. The content of this restriction has therefore to be confined within reasonable limits keeping in view “the real purpose and object underlying the two sections.” The court is not concerned with any offence which has no close nexus with the proceedings in court. The court cannot satisfactorily determine the question of expediency of making a complaint in respect of an offence alleged to be committed prior to the commencement of the proceedings. Thus with or without the words “by a party to any proceeding”, the same object is achieved and the new Code rightly omitted these words assuring themselves that the principles laid down by the Supreme Court would even then apply. The broad principles laid down by the Supreme Court which form the basis of S. 195 remain untouched.
16. Deletion of the words “by a party to any proceeding in any court”, is inconsequential for another reason. S. 195 only directs a court to file a complaint. It specifies the offences in respect of which it can take action; but does not refer to any offender. The human agency involved in the offence did not require any statutory differentiation. The underlying principles that private prosecutions are barred when the course of justice is perverted and it is, then, for the court to uphold its dignity and prestige do not rest for their support on these words “by a party to any proceeding in any court”.
17. In fact, the Supreme Court had specifically noted thus in (1971) 2 SCC 376 : AIR. 1971 SC. 1935:—
“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 are 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 Ss. 195 and 476 Cr. P.C This in our opinion would unreasonably restrict the right possessed by a person and recognized by S. 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.”
18. Can it be said that these statements can have no significance simply because the words “by a party to any proceeding in any court” have been omitted? I do not think so. This reasoning has as much relevance in the present context as in the past.
19. S. 195(1)(c) of the Code of Criminal Procedure, 1973 therefore postulates that the court can file a complaint in respect of the specified offences, when a document is produced or received in evidence in any proceeding in court only when the offence is committed after the commencement of the proceedings. In this view, as the offences punishable under Ss. 465 and 467 are alleged to be committed on 17th July, 1978 and the suit was filed on 25th July, 1978, a private complaint is maintainable; S. 195(1)(c) is not attracted and the court's intervention for the purpose is not called for. But the offence under S. 471 IPC. in this case arose only after the suit was instituted. The complaint for this offence cannot be pursued and the lower court is not entitled to proceed with the trial in respect of the offence under S. 471 IPC.
20. Counsel for the respondents relied on Ram Pal Singh v. State of U.P (1982 Crl. L.J 424) in support of his contention that S. 195 is a bar. Of course, that decision has held that the omission of the words “by a party to any proceeding” in S. 195(1)(c) affects a change in law the reasoning is:
“As already discussed, the Supreme Court while interpreting the provision of S. 195(1)(c) of the old Cr. P.C held that the bar created by that Section applies only to such cases where offence had been committed by a party to the proceeding in its capacity as such party, leading to the further conclusion that it applied only to cases where the offence had been committed during the pendency of the particular judicial proceeding in which the concerned document was filed, because of specific words by a party to the proceeding, used in that Section and not for any other reason, xxx”
21. With great respect, lam not prepared to accept this view as correct, as their Lordships seem to have thought that the words now deleted alone persuaded the Supreme Court to arrive at the conclusion that the offence should have been committed by the party in its capacity as such party to the proceeding. I have already stated that the Supreme Court was guided not by any single solitary fact but by a consideration of several factors, to settle the judicial conflict and to define the scope and ambit of this provision.
22. Counsel for the respondents also relied on the decisions of this Court in Krishnan Nair v. State of Kerala (1962) 1 Crl. L.J 340 and in Chacko v. State of Kerala ((1983) KLT. 1060). (1962) 1 Crl. L.J 340 was specifically cited in (1971) 2 SCC 376 : AIR. 1971 SC. 1935 with the observation that the decision in AIR. 1931 All. 443 was not significantly noted by this court. The point raised in the present form was not the subject matter of discussion and decision in these cases.
23. Counsel for the respondents contended that the lower court based its decision on a concession by the counsel for the complainant and he cannot therefore be allowed to urge in revision that S. 195 is a bar. Just as concession by counsel cannot confer jurisdiction, so also a concession on a question of law cannot estop any party or affect his right to challenge the same in the appellate or revisional court. The counsel missed the drift of the section and the gist of the decisions when he conceded that S. 195 was a bar. The lower court, probably, emboldened by the concession, came to the same conclusion on his own reasoning as well. The question in this case was thus not decided by the lower court on the basis of the sole concession by the counsel for the complainant.
24. It is also relevant to note that the suit itself has been withdrawn. If the contention of the respondents is correct, when once a document is forged, prosecution can be shelved by the simple device of filing a suit and withdrawing the same, for, in that event it might not be possible for the court to form an opinion whether it is expedient to launch a prosecution, and the aggrieved party cannot also file a complaint. I have no doubt that Parliament never intended to protect such culprits when S. 195(1)(c) was enacted. In the result, the order of the lower court discharging the accused is set aside and the case is remanded to the lower court for fresh disposal in the light of the observations contained in this judgment and according to law.
25. Allowed.
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