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Emperor v. Mallappa Tejappa Bidikar And Others
Factual and Procedural Background
A criminal complaint for forgery of a sale-deed was committed for trial before the Additional Sessions Judge, Belgaum. The Additional Sessions Judge held that a complaint from the Mamlatdar, Khanapur, was necessary because accused no. 3, alleged to have abetted the forgery, had instituted an assistance suit before the Mamlatdar as guardian of a minor in whose favour the sale-deed was passed. The sale-deed had been produced in that assistance suit, which had been disposed of before the committing Magistrate took cognizance of the criminal complaint. The Crown applied to set aside the Additional Sessions Judge's order; the present opinion addresses that application.
Legal Issues Presented
- Whether Section 195(1)(c) of the Code of Criminal Procedure bars cognizance of the alleged offences because one of the accused was a "party" to a civil proceeding in which the document was produced.
- Whether a guardian or next friend of a minor is to be regarded as a "party" for the purposes of Section 195(1)(c).
- Whether, for the purposes of Section 195(1)(c), the civil proceeding must be pending at the material time when the criminal court is asked to take cognizance.
Arguments of the Parties
Additional Sessions Judge's View
- Held that a complaint from the Mamlatdar was necessary because accused 3 had instituted the assistance suit as guardian and the sale-deed was produced in that proceeding.
Advocate Opposing the Crown
- Conceded that strictly speaking a guardian or next friend is not a party, but urged that the word "party" in S.195(1)(c) should be given a broad meaning to include persons participating in or interested in litigation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 30 All 55,1 7 Cal 1372 and 3 Mad 43. | That the guardian or next friend is not a "party" to a proceeding. | The court relied on this to conclude accused 3 was not a party to the assistance suit and therefore S.195(1)(c) did not apply. |
| 58 Cal 727.4 | Observation of Rankin, C.J. that "party" is not used in an unusual or extended sense in S.195(1)(c). | The court respectfully agreed with Rankin, C.J.'s observation and rejected a broad or extended meaning of "party". |
| 38 Bom LR 440,5 | That the material time for construing S.195 is when the court is asked to take cognizance of the criminal offence. | The court noted this authority to support the disposition that the proceeding should be pending at the material time, though it found it unnecessary to decide the point finally in the present case. |
Court's Reasoning and Analysis
The court analyzed S.195(1)(c) of the CrPC, which bars cognizance of certain offences when alleged to have been committed by a party to a proceeding in which the document was produced. It held that S.195(1)(c) applies only if an accused was a "party" to the proceeding. Relying on authorities that a guardian or next friend is not a party, the court concluded accused 3 — being guardian/next friend of the minor — was not a party and therefore S.195(1)(c) did not bar cognizance. The court rejected the submission that "party" should be given a broad, non-technical meaning to include any participant or interested person, agreeing with Rankin, C.J.'s observations that no unusual or extended sense should be applied. The court also considered authority indicating that the material time for S.195 is when the criminal court is asked to take cognizance, and expressed the view that the cited language implies the civil proceeding must be pending at that material time; however, it did not decide that question finally because it found accused 3 was not a party in any event.
Holding and Implications
Order of the Additional Sessions Judge set aside.
Direct effect: The Additional Sessions Judge's order requiring a complaint from the Mamlatdar was set aside and the court directed that he proceed with the trial of the criminal case. The court applied existing authorities to conclude a guardian/next friend is not a "party" for S.195(1)(c) and rejected an extended meaning of "party"; it also expressed a view that the civil proceeding must be pending at the material time for S.195(1)(c) to operate, though it did not decide that point as it was unnecessary to the decision.
Broomfield, J.:— In our opinion the learned Additional Sessions Judge, Belgaum, was wrong in holding that a complaint from the Mamlatdar, Khanapur, was necessary in this case. His reason for making the order was that accused 3, one of the persons alleged to have abetted the forgery of a sale-deed which was the subject matter of the criminal case committed for trial before the Additional Sessions Judge, had instituted an assistance suit before the Mamlatdar as the guardian of a minor in whose favour the sale-deed was passed. Section 195(1)(c) of the Cr PC, provides that:
No Court shall take cognizance of any offence described in S. 463 or punishable under S. 471, S. 475 or S. 476 (of the Penal 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.
2. The sale-deed, it appears, was produced in the assistance suit, which, I may mention, had been disposed of before the committing Magistrate took cognizance of the criminal complaint of forgery. S. 195(1)(c) cannot apply unless one of the accused was a party to some proceeding in Court. Accused 3 was merely the guardian or next friend of the minor plaintiff in that proceeding. The guardian or next friend is not a party, as has been held in 30 All 55,1 7 Cal 1372 and 3 Mad 43.
3. The learned advocate who appears to oppose this application by the Crown has conceded that strictly speaking the guardian or next friend cannot be regarded as a party. But he urges that when the word “party” is used in S. 195(1)(c), it is not used in a strict or technical sense, but is used generally to mean or include any person participating in or interested in litigation.
4. Once, however, one were to take the view that the word is used in such a general sense, it would be difficult to know where to draw the line. We are of opinion that there are no good grounds for holding that the word “party” is used in this section in any unusual or extended sense, and we respectfully agree with the observations of Rankin, C.J to that effect in 58 Cal 727.4
5. It is suggested that there is another objection to the order of the learned Additional Sessions Judge. As I have mentioned, the civil proceeding in which the sale-deed was produced had terminated at the time the Magistrate took cognizance of the criminal complaint. As pointed out in 38 Bom LR 440,5 the material time in construing S. 195 is the time at which the Court is asked to take cognizance of a criminal offence. In that particular case it was not necessary to determine whether S. 195(1)(c) would apply if the proceedings in Court had terminated, so that the accused had only previously been a party to a proceeding, and was no longer a party at the time S. 195(1)(c) was sought to be applied. In the present case it is not really necessary to decide that question either, because we hold that accused 3 was not a party to the proceeding at all. But we may say that we are disposed to take the view that the words, “committed by a party to any proceeding in any Court” in S. 195(1)(c) imply that the proceeding must be pending at the material time. To hold otherwise might lead to rather absurd results. Between the commission of a forgery and the discovery of it a long time may elapse, and in the interval the document may be produced in many proceedings. It might be highly inconvenient to have to obtain a complaint from each of the Courts in respect of proceedings terminated, possibly many years before. We set aside the order of the Additional Sessions Judge, and direct that he do proceed with the trial of the case.
B.D/R.K
6. Order set aside.
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