Yellappa Gowder S.P v. State Of Karnataka

1. This petition is directed against the order d/. 7-4-1976 passed by the Special Judge, Bangalore in CC. 11 of 1974 overruling the preliminary objections raised by the petitioner in the interlocutory application filed on 13-2-1976 and another application filed on 1-4-1976. The petitioner is A-2 in the said case. One Dastagirsahab is A-1 therein. They will be referred to as A-1 and A-2 in the course of this order.

2. The facts necessary for consideration of the contentions raised in this petition may be briefly narrated as follows: The Special Police Establishment, CBI, Bangalore, filed a charge-sheet d/. 21-8-1975 before the Special Judge, Bangalore, alleging the offences punishable under S. 120B read with S. 161 IPC and S. 5(2) read with Sectiion 5(1)(d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the ‘Act’) and the offences punishable under S. 161 IPC and S. 5(2) read with S. 5(1)(d) of the Act. The allegations in the relevant column of the charge-sheet are as follows:

3. That during February-March 1974. A-1 was working as Inspector of Central Excise, MOR, Gadag and A-2 was working as Superintendent, Central Excise, MOR, Gadag. They entered into a criminal conspiracy to commit the offence of criminal misconduct as defined under the provisions of the Act by raiding the premises of Totappa Siddalingappa Melageri, a tobacco licensee, in Gadag on the pretext of detecting certain irregularities and demand and accept illegal gratification an motive or reward for not taking any action against the said licensee for the so-called irregularities. On 15-2-1974 they along with other staff raided the premises of the said licensee at Gadag and estimated shortage at 60 Kgs. of tobacco without actually weighing the tobacco stock in the premises A-1 demanded illegal gratification of Rs. 500 from the licensee as a motive or reward for helping him and finally accepted illegal gratification of Rs. 200 on 8-3-1974 at about 10-15 a.m in the house of the licensee. A-2 fabricated the letter bearing DC. 549/74 showing the date as 6-3-1974, though he fabricated it on or after 9-3-1974, addressed to A-1 directing him to effect recovery of a sum of Rs. 500 from the licensee as per the adjudication order d/. 20-9-1973 passed by the Asst. Collector of Central Excise, IDO, Hubli, with a view to screen A-1 knowing that it may appear in evidence in a judicial proceeding.

4. On 22-8-1975, the learned Special Judge passed the following order:

“Charge sheet presented on 21-8-75 with the list of witnesses by Public Prosecutor, SPE, Bangalore, against the accused persons for the offences punishable under S. 120-B r/w 161 IPC and 5(2) r/w 5(1)(d) of PC Act, 1947 and the specific offences punishable u/s 161 IPC and 5(2) r/w 5(1)(d) PC Act. Issue SS to accused by 12-9-75”.

Thereafter, IA. No. 1 and the other application were filed on behalf of the petitioner raising the following two preliminary objections:

1. That the sanction to prosecute A-2 accorded by the Collector of Central Excise is not valid and so A-2 should be discharged:

2. That the facts alleged in para-3 of the charge-sheet constitute an offence punishable under S. 193 IPC and so the court cannot take cognizance of the said offences against A-2 without a complaint by the court as required by S. 195(1)(b)(i) of the CPC (New) and it is not open to the prosecution to move the court for framing a charge under S. 466 IPC on the same facts so as to evade or defeat the above provision.

5. At the stage when the charges were to be framed the SPE, Bangalore, urged before the learned Special Judge that a charge under S. 466 IPC against A-2 was required to be framed. The learned Special Judge heard Shri V.V Srinivasachar, learned counsel for the petitioner, and the SPE, Bangalore, in regard to the preliminary objections raised on behalf of A-2 and the charges to be framed. At that stage, the necessary documents and statements were looked into by the learned Special Judge. He found that though it was stated in para 4 of the charge-sheet that A-2 had committed specific offences punishable under S. 161 IPC and S. 5(2) read with S. 5(1)(d) of the Act, it was clearly stated in para 2 of the charge-sheet that it was only A-1 who had demanded and accepted illegal gratification of Rs. 200 from the licensee and that the documents relied upon by the prosecution did not, in fact, disclose that A-2 had committed the specific offences punishable under S. 161 IPC and 5(2) read with S. 5(1)(d) of the Act. He overruled the preliminary objections raised on behalf of the petitioner and framed charges as follows:

1. That both of you during the period between February and April 1974 at Gadag entered into a criminal conspiracy by agreeing among yourselves to commit illegal acts and/or acts by illegal means to wit to raid the L. 2 premises of Totappa Siddalingappa Melageri, Tobacco Merchant, Gadag, on 15-2-1974 on the pretext of detecting some irregularities likely to amount to contravention of Central Excise Rules and obtain gratification other than legal remuneration for yourselves, as a motive or reward for forbearing from taking any action for the alleged contravention of the Central Excise Rules and accept gratification other than legal remuneration to the extent of Rs. 200 on 8-3-74 by accused No. 1 amongst you from the said Totappa Siddalingappa Melageri and thereafter you A-2 forged letter d/. 6-3-74 addresed to A-1 and copy marked to Asst. Collector, Central Excise, Hubli wherein you A-2 authorised A-1 amongst you to recover a sum of Rs. 500 being redemption fine from the said Totappa Siddalingappa Melageri either in his house as per the adjudication order No. C. No. V/4/15-63/72/201/73 d/. 20-9-73 of the Asst. Collector, Central Excise, Hubli and thereby committed an offence punishable under S. 120B, IPC r/w S. 161 IPC and S. 5(2) r/w 5(1)(d) of the Prevention of Corruption Act.

2. That you A-1 amongst you in pursuance of the aforesaid conspiracy at about 10-30 a.m on 8-3-74 in the house of said Totappa Siddalingappa Melageri in Gadag accepted gratification other than legal remuneration as a motive or reward for forbearing to take action against the said Totappa Siddalingappa Melageri in respect of shortage of tobacco of 60 Kgs. found by you and others in the L-2 premises of said Totappa Siddalingappa Melageri on 15-2-74 and there by committed an offence punishable under S. 161 IPC.

3. That you A-1 amongst you in pursuance of the aforesaid conspiracy at about 10-30 a.m on 8-3-1974 in the house of said Totappa Siddalingappa Melageri in Gadag obtained for yourself pecuniary advantage of Rs. 200 from said Totappa Siddalingappa Melageri by corrupt and illegal means or otherwise abusing your position as a public servant as referred to in charge No. 2 and thereby committed an offence punishable under S. 5(2) r/w S. 5(1)(d) of the Prevention of Corruption Act.

4. That you A-2 amongst you in pursuance of the aforesaid criminal conspiracy, on or after 9-3-74 at Gadag forged the letter No. DC No. 549 d/. 6-3-74 addressed to A-1 and copy marked to the Asst. Collector, Central Excise. Gadag, both purporting to be made by you in your official capacity as a public servant and thereby committed an offence punishable under S. 466 IPC.”

6. What is narrated in the preceding paragraphs makes it manifest that the Special Judge, took cognizance of the offences punishable under Section 120B read with S. 161 and S. 5(2) r/w S. 5(1)(d) of the Act and the specific offences punishable under S. 161 IPC and under S. 5(2) r/w 5(1)(d) of the Act on 22-8-1975 and further directed issue of process against both the accused. It is also clear that though in the charge-sheet it was alleged that both the accused had committed the specific offences punishable under S. 161 IPC and under S. 5(2) read with S. 5(1)(d) of the Act, the documents relied upon by the prosecution did not at all make out that A-2 had committed these specific offences. On the other hand, they made out that A-1 alone had committed these specific offences.

7. Shri V.V Srinivasachar, learned Counsel for the petitioner, did not raise in this petition the preliminary objection that sanction to prosecute A-2 accorded by the Collector of Central Excise is not valid and so A-2 should be discharged. On the other hand, he raised some other contentions to be narrated and discussed in the course of this order on the basis of S. 6 of the Act. He, in the first instance, argued that the specific, case of the prosecution against A-2 as is clear from the allegations in the charge-sheet and as noticed by the learned Special Judge while taking cognizance of the offences in question, was that A-2 also had committed the specific offences punishable under S. 161 IPC and under S. 5(2) read with S. 5(1)(d) of the Act and therefore, the prosecution cannot be permitted to evade the provisions of the Act and also the provisions of S. 195(1)(b)(i) and 195(1)(b)(ii) of the CPC, 1973 (hereinafter referred to as ‘New Code’) and insist on prosecuting A-2 for the offence punishable under S. 466 IPC. In other words, his contention so far as it relates to the charge under S. 466 IPC is that according to the prosecution case, A-2 fabricated the letter bearing DC. No. 549/74 dated 6-3-1974 on or after 9-3-1974 but ante-dated it as 6-3-1974 for the purpose of being used in the judicial proceeding which was bound to be instituted against him and A-1 so that the court should form an opinion on the basis of the said letter in their favour and therefore, the offence committed by A-2 was none other than the offence described in S. 192 punishable under S. 193 IPC.

8. S. 195(1) of the New Code reads as follows:

“195(1) No Court shall take cognizance,

(a)(i) of any offence punishable under Ss. 172 to 188 (both inclusive) of the IPC, or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) or 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 IPC, namely, Ss. 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 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

(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”.

9. Section 195(1) of the Crl. PC, 1898 (hereinafter referred to as the ‘Old Code’) reads as follows:

“195(1) No Court shall take cognizance,

(a) of any offence punishable under Ss. 172 to 188 of the IPC (45 of 1860), except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.

(b) of any offence punishable under any of the following Sections of the same Code namely, Secs. 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of such court or of some other court to which such court is subordinate; or

(c) of any offence described in S. 463 or punishable under S. 471, S. 475 or S. 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.”

10. The offence under S. 193 IPC is found in S. 195(1)(b)(i) of the new Code and in S. 195(1)(b) of the old Code. These two provisions have remained unaltered.

11. In Basir-ul-Huq v. State of West Bengal(1) the scope of S. 195 of the old Code has been considered. In the said case a private complaint was filed making out offences under Ss. 297 and 500 IPC on the basis that the accused therein had made a false report to the police and that report disclosed these offences against the complainant. The question that arose for consideration was whether the offence under S. 182 IPC had been in fact made out in the complaint and as such the concerned Magistrate was deprived on the power of taking cognizance of the offence by virtue of S. 195(1)(a) of the old Code without there being a complaint to the Court by the concerned public servant. It was found on facts that the complain filed by the complainant had nothing to do with the offence under S. 182, IPC and as such the bar in S. 195(1)(a) did not operate. Their Lordships of the supreme court have, in paragraph 14 of the judgment, observed as follows:

“Though, in our judgment, S. 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section ??? not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in S. 195 Crl. PC. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Sec. 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.” (Note: underlining italics is mine)

12. Sri Srinivasachar contended before me that the above principle is applicable to the facts and circumstances of this cage.

13. The aforementioned principle has been applied by the Supreme Court in Durgacharan Naik v. State of Orissa(2). It may be remembered that what is laid down by the Supreme Court in Bashir-ul Huq's case is in regard to S. 195 of the old Code as a whole. In Durgacharan Naik's case the offences under consideration were the ones under Ss. 186 and 353, IPC. If the offence fell under S. 186 IPC, then, the bar contemplated in S. 195(1)(a) of the Old Code would be applicable. In the said case, the Orissa High Court had set aside the order of acquittal passed by the Asst. Sessions Judge of Puri and convicted the appellants under S. 353 IPC. It was argued that in truth and substance, the offence in question was the one under S. 186 IPC and as such the bar in S. 195(1)(a) of the old Code would apply and that fact had not been properly taken into consideration by the High Court. Their Lordships of the Supreme Court analysed the two provisions and held as fellows:

“Sections 186 and 353 of Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former is not so. The ingredients of the two offences are also distinct. S. 186, Penal Code, is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under S. 353, Penal Code, the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. S. 186 occurs in Chap. X of the Penal Code dealing with contempts of the lawful authority of public servants, while S. 353 occurs in Chapter XVI regarding the offences affecting the human body.

Sec. 195 of Crl. PC does not bar the trial of the accused for the distinct offence under S. 353 of Penal Code, though it may be practically based on the same facts as for the prosecution under S. 186 IPC which is barred for want of necessary sanction under S. 195 Crl. PC.”

14. Further, their Lordships have, in paragraph 8 of the judgment, stated as follows:

“We have expressed the view, that S. 195 Cr PC, does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of S. 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under same other section of the IPC though in truth and substance the offence falls in the category of sections mentioned in S. 195 Cr PC. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S. 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellants under S. 353 IPC was by way of evasion of the requirement of S. 195 Cr. PC. But we are satisfied that there is no substance in this argument and there is no camouflage or evasion in the present case.”

15. If the very tests as applied in Durgacharan Naik's Case are applied to the offences under Ss. 192 and 193 IPC and S. 466 IPC, it is clear that the two offences are quite distinct.

16. Sri Srinivasachar, learned Counsel for the petitioner, relied on the decision in Ram Harsh Tewari v. Rex(3) in support of his contention that by prosecuting the petitioner for the offence under S. 466 IPC evasion of the provisions of S. 155(1)(b)(i) of the new Code has been practised. In the said case, a complaint was filed in the Court of the City Magistrate of Allahabad alleging that while inspecting the election records in the Court, certain ‘plus’ marks had been added on the ballot papers so that the votes cast in favour of the complaint might become invalid and be rejected by the District Judge and that act was committed with a view to cause loss to the complainant and with the intention that the ballot papers so fabricated should be used as evidence against the complainant during the hearing of the election petition. It was contended on behalf of the other side, that the facts stated in the complaint amounted to an offence under S. 193 IPC for the trial of which a complaint by the Court under S. 195(b) of the old Code was necessary and since no such complaint was there, the prosecution was not maintainable. It was argued on behalf of the complainant that the offence complained of was one u/S. 465 IPC for which no such complaint was required to be filed by the Court in question. The learned Chief Justice who heard the case held that the offence of forgery, as defined in S. 463, and giving of false evidence or fabricating false evidence in Sec. 193 are more or less allied offences, one being more serious than the other.

17. Sri Srinivasachar nextly relied on the decision in Re. V.V.L Narasimhamurthy(4). The facts therein were as follows:

18. A complaint was filed by the defendant in OS. 33 of 1948 on the file of the Subordinate Judge, Rajahmundry against the plaintiff therein who had filed the said suit as guardian of his minor daughter on the allegation that he had fabricated certain documents which were produced in the said suit so as to secure possession of the suit property in favour of the plaintiff and therefore, had committed offences under Ss. 467 and 471 IPC. It was held that the facts disclosed in the complaint made out two offences (1) under S. 193 IPC for which a complaint by the Court was necessary; and (2) under Ss. 467 and 471 IPC for which a complaint by Court was not necessary and in that view of the matter, the party was not to be allowed to evade the provision of complaint by Court and therefore, in such a case, the Court should not take cognizance of the complaint unless there was a complaint by the Court as required by S. 195(1)(b) of the old Code. Accordingly, the order of committal passed in that case was quashed by the High Court.

19. In S. 195(1)(b) of the old Code, the offences enumerated are the ones under Ss. 193 to 196, 199, 200, 205 to 211 and 228 IPC. The offences enumerated in S. 195(1)(c) of the old Code are, any offence described in S. 463 or offence punishable u/Ss. 471, 475 & 476 IPC. The same is the scheme in S. 195(1)(b)(i) and S. 195(1)(b)(ii) of the new Code. This very fact shows that S. 195 in both the Codes recognises that the offences enumerated in one part of S. 195 and the offences enumerated in the other part of S. 195 of the old Code and the offences enumerated in S. 195(1)(a)(i) and in S. 195(1)(b)(i) and (ii) of the new Code are different and distinct offences. Moreover, a comparison of the ingredients of the respective offences makes, it abundantly clear that they are distinct. The offence under S. 466 IPC does not find a place in S. 195(1)(b)(ii) of the new Code, while the offence described in S. 463 finds a place. The words used in this regard are “the offence described in S. 463” and not the offences described under S. 463. It is no doubt true that the ingredients of the offence described in S. 463 have got to be satisfied in establishing a charge under Sections 466 and 467 IPC. Each and every offence under Ss. 466 and 467 are by themselves distinct offences because some more ingredients than those contained in the description of the offence under S. 463 are involved.

20. In Govind Mehta v. State Of Bihar(5) it has been specifically laid down by the Supreme Court that the offence under S. 466 is not covered by Cl (b) of S. 195(1) of the old Code. It is also held that the offence under S. 466 IPC is not covered by S. 195(1)(c) of the old Code. Sri Srinivasachar argued that in para 19 of the judgment in this case, the Supreme Court has held that the offence under S. 465 IPC is covered by S. 195(1)(c) of the old Code. But in my opinion, it is not so. What has been narrated by the Supreme Court in this behalf in para 19 is as follow.

“We have already referred to the fact that in the complaint the offence under S. 465 of the Penal Code was also included. S. 463 of the Penal Code defines forgery and S. 465 deals with punishment for the said offence. S. 463 of the Penal Code is, no doubt, taken in by Cl (c) of S. 195(1) of the Code. Even on the basis that S. 465 of the Penal Code will also be covered by Cl (c) as the offence under S. 465 is dealt with therein, nevertheless, Cl (c) will not operate as a bar to the jurisdiction of the Magistrate in taking cognizance of the said offence as the offence is not alleged to have been committed “by a party to any proceeding in any Court…..”

(Note: Underlining italics is mine).

21. The words underlined make it crystal clear that the Supreme Court has not held that the offences in which the ingredients of the offence described in Sec. 463 are essential are taken in by Sec. 195(1)(c) of the old Code. Therefore, the argument of Sri Srinivasachar that the ingredients of the offence described in S. 463 are also the essential ingredients of the offence in S. 463 IPC and hence the offence under S. 466 IPC is taken in by the provisions of S. 195(1)(c) of the old Code and therefore by Section 195(1)(b)(ii) of the new Code, cannot be countenanced.

22. In view of what has been held by the Supreme Court in the aforementioned decisions, I conclude that the argument of Sri Srinivasachar as based on the decision in Ram Harsh's case has no force.

23. Now the contention of Sri Srinivasachar that the prosecution case, in truth and substance is that A-2 had, by fabricating the letter in question, committed the offence punishable under S. 193 IPC and the prosecution by describing the offence committed by A-2 as one falling under Section 466 IPC, has evaded the provisions of S. 195(1)(b)(i) of the new Code, is to be considered.

24. Sec. 195(1)(b)(i) of the new Code is word to word the same as Section 195(1)(b) of the old Code. Even if it is, for the sake of argument, assumed that the prosecution case is in truth and substance that the petitioner has by fabricating the said letter, committed the offence punishable under S. 193 IPC, it is, in the first instance, necessary to see whether the provision of S. 195(1)(b)(i) of the new Code is attracted. It will be attracted if such offence is alleged to have been committed on or in relation to any Proceeding in any Court. If this condition precedent is not satisfied, then, this provision will not be attracted. Sri Srinivasachar argued that this condition precedent is attracted because the said letter has been produced in this very proceeding after it came to be pending before the Special Judge because the Special Judge has taken cognizance of the offence under S. 466 IPC at the time of framing charge.

25. I do not think that the contention of Sri Srinivasachar that the document in question has been produced before the Special Judge at some stage after the proceeding in CC. 11 of 1974 came to be pending in the Court of the Special Judge is sound, because it is seen that it was on 22-8-1975 that the Special Judge took cognizance of the offences under Ss. 120B read with 161 IPC and 5(2) read with 5(1)(d) of the Act and specific offences punishable under Ss. 161 IPC and 5(2) read with 5(1)(d) of the Act. That shows that the proceeding came to be pending before the Special Judge only from 22-8-1975 when he took cognizance of the offences and directed issue of process to the accused. The charge-sheet itself was filed before the Special Judge on 21-8-1975. S. 173(5) of the new Code lays down that all documents or relevant extracts thereof on which the prosecution proposes to rely, other than those already sent to the Magistrate during investigation, should accompany the report filed by police after completing the investigation. The charge-sheet is the said report. It is seen from the charge-sheet in question that the carbon copy of the said letter and other documents were produced along with the charge-sheet at serial No. 36 of the list of documents produced along with the charge-sheet. Production of this carbon copy does not make any difference for the purpose of applying the provisions of S. 195(1)(b)(i) of the new Code. Therefore, it is seen that the letter in question or at least the carbon copy of the same, was produced before the Special Judge earlier to the Special Judge taking cognizance of the aforementioned offences on 22-8-1975. Sri Srinivasachar argued that the offence under S. 193 IPC is complete as soon as a document is fabricated with the necessary intention mentioned in S. 192 IPC and that whenever such a document is produced, may be later in any Court in any proceeding, the ingredients of S. 195(1)(b)(i) of the new Code would be satisfied. He stressed particularly on the fact that A-2 must have known and in fact, that is the case of the prosecution that a case against him and A-1 would be launched in the Court of the Special Judge and therefore, he fabricated the letter in question in order to screen A.1 from the likely conviction.

26. In regard to the interpretation of the words “in or in relation to any proceeding in any Court” occurring in S. 195(1)(b) of the old Code and the words “committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding” occurring in S. 195(1)(c) of the old Code, divergent views were expressed by various-High Courts.

27. In State of Gujarat v. Vora Saifuddin Akbarali(6), the facts were that Civil Suit 11 of 1964 was filed in the Court of the Joint Civil Judge, (Jr Dn) at Dholka against Vora Saifuddin Akbarali and another, wherein the plaintiff had produced a forged document in support of his claim for the recovery of Rs. 2000. After the suit was dismissed, Vora, the defendant, filed a complaint in the court of the Judicial Magistrate, First Class, Dholka, alleging the offences punishable under Ss. 406 and 471 IPC in regard to the forged cheques and the coupons produced by the plaintiff in the said suit. The committing Magistrate passed a committal order. An application was filed praying that the committal order may be quashed because of the bar under Ss. 195(1)(c), 476 and 479A of the old Code. The Sessions Judge, Ahmadabad (Rural) made an order of reference to the High Court of Gujarat recommending that the commitment may be quashed. The learned Single Judge, Shelat, J., (as he then was) expressed that he was inclined to agree with the dissenting judgment pronounced by Desai, J., in Emperor v. Rachappa Yellappa, and not with the majority judgment. He also expressed that he was not inclined to agree with the view expressed by the Full Bench of the Gujarat High Court reported in (1968) 9 Gujarat Law Reporter page 1, but as he was bound by the decision of the Full Bench, he had to decide the case in accordance with the view of the Full Bench. He rejected the reference on that score. The view expressed in the said two decisions and which Shelat, J., felt bound to follow, was that it did not matter whether the document in question was forged before the same was produced before a court for the purpose of S. 195(1)(c) of the old Code, but all that mattered was that the offence must have been committed by a party to the proceeding in such a court and that the proceeding need not be pending at the time when the cognizance of the crime was sought. This matter went up to the Supreme Court and the Supreme Court dealt with this question in the decision in Patel Laljibhai Somabhai v. State Of Gujarat.(7). It has been held as follows:

“The underlying purpose of enacting S. 195(1)(b) & (c) and S. 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecution on frivolous, vexatious or insufficient 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, in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised.

28. Further on, their Lordships have laid down as follows:

“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 Crl. PC. This in our opinion would unreasonably restrict the right possessed by a person and recognized by S. 190 Crl. PC 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”.

29. Ultimately, their Lordships of the Supreme Court agreed with the reasoning of the Allahabad Full Bench In Kushal Pal Singh's case to the effect that to attract the provisions of S. 195(1)(c) of the old Code, the offence should be committed by a person who is already a party to a proceeding and therefore to a pending proceeding. The Supreme Court held that the offence under S. 471 IPC was clearly covered by the prohibition contained in S. 195(1)(c) of the old Code, but the offence under S. 467 IPC was to be tried in the absence of a complaint by the Court, unless it was 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.

30. In the decision in M.L Sethi v. R.P Kapur(8), it has been held that S. 195(1)(b) of the old Code is contemplated to a pending or concluded proceeding and not for one in contemplation. In view of the position of the law laid down by the Supreme Court in the aforementioned decisions the contention of Sri Srinivasachar cannot be accepted. Therefore, it has to be held that even if it is for the sake of argument assumed that in truth and substance, the prosecution case against A-2 makes out an offence under S. 193 IPC also, the bar contemplated in S. 195(1)(b)(i) of the new Code is not attracted under the facts and circumstances of the case.

31. It has been already seen that the offence under S. 466 IPC is not taken in by the provisions of S. 195(1)(b)(ii) of the new Code. Therefore, the bar of that provision also does not operate.

32. Sri Srinivasachar argued that the prosecution case against A-2 was that he committed offences punishable u/S. 161 IPC and 5(2) read with 5(1)(d) of the Act, but there being no sanction secured against him under S. 6 of the Act, the prosecution has adopted the ruse of prosecuting him for the offence of criminal conspiracy punishable under S. 120-B read with 161 IPC and 5(2) read with 5(1)(d) of the Act and hence the principle of evasion does apply as held by the Andhra Pradesh High Court in Akki Veeraiah v. State(9). In this very connection he pointed out sub-sec (3-A) of S. 5 of the Act. S. 5(1) and sub-sec. (3A) of S. 5 of the Act read as follows:

5(1) A public servant is said to commit the offence of criminal misconduct,

a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in S. 161 of the IPC, or

b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant, to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned or,

c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or

d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or

e) if he or any person on his behalf is in possession or has fit any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

(3-A). Whoever attempts to commit an offence referred to in Clause (c) or Clause (d) of sub-sec (1) shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both”.

33. What is plain from the above provisions is that under sub-sec (3-A) “attempt to commit an offence referred to in Clause (c) or Clause (d) of sub-sec (1) of S. 5” has been made punishable but not the offence of criminal conspiracy to commit the said offences or abetment of such offences. It is plain that the legislature has advisedly not incorporated the abutment of the said offences or the offence of criminal conspiracy to commit the said offences within the ambit of sub-sec. (3A) of Section 5 of the Act.

34. Sanctions, for prosecuting the two accused were produced along with the charge-sheet. Sanction against A-1 was in regard to all the offences while sanction against A-2 was in regard to the offence of criminal conspiracy punishable under S. 120B read with Ss. 161 IPC and 5(2) read with 5(1)(d) of the Act. Under S. 6 of the Act, sanction to prosecute A-2 for the offence under S. 120B read with 161 IPC and 5(2) read with 5(1), (d) of the Act is not necessary. But even then, it has been obtained. At the most it may be redundant. It has been already pointed out that the learned Special Judge has found on going through the documents and the other material proceeded to frame charges, that the prosecution had not made out a case against A-2 that he also had committed the specific offences under Ss. 161 IPC and 5(2) read with 5(1)(d) of the Act. If in fact, that was the prosecution case, there was no difficulty in obtaining sanction in that particular form viz., to prosecute A-2 also for the specific offences punishable under S. 161 IPC and 5(2) read with S. 5(1)(d) of the Act instead of obtaining sanction to prosecute A-2 for the offence of criminal conspiracy punishable under S. 120B read with 161 IPC and 5(2) read with 5(1)(d) of the Act. Therefore, it is clear, to my mind, that the contention of Sri Srinivasachar that the prosecution case against A-2 is that in truth and substance he had also committed the offences under S. 161 IPC and 5(2) read with 5(1)(d) of the Act, has no force. Sri Srinivasachar attempted to support this very contention by relying on the allegation of the prosecution that A-1 and A-2 had conspired to make a pretext of a raid. On the godown of Sri Melageri thereby creating an opportunity for themselves for demanding and accepting illegal gratification and that in making such a pretext of raid, they misused their position as public servants and therefore, they (including A-2) committed an offence punishable under S. 5(1)(d) of the Act, inasmuch as A-2 had otherwise abused his position as a public servant. It is true that it is alleged by the prosecution that the two accused conspired to make a pretext of a raid on the godown of Melageri and in pursuance of this conspiracy they raided the godown on 15-2-74. But it is undisputed that they had all the power in discharge of their official duties, to raid the said godown. Therefore, it cannot be said that the raid thought of by the two accused as alleged by the prosecution was by abusing their position as public servants. Hence, this argument of Sri Srinivasachar also has to fail. Moreover, what is required by S. 5(1), (d) of the Act is that the public servant concerned should by otherwise abusing his position as public servant, obtain for himself or for any other person any valuable thing or pecuniary advantage. Therefore, merely staging the raid cannot satisfy the ingredients of this provision, even though it was with the intent to provide an opportunity to do something also. In the absence of any material to show that A-2 had any hand in demanding or accepting illegal gratification or both from the licensee viz., Melageri, the provisions of Sec. 5(1)(d) in the light put forward by Sri Srinivasachar, cannot be attracted. Hence, this contention has to fail.

35. When on facts it is found, as narrated in the preceding paragraphs, the question whether the prosecution has, by adopting the ruse of prosecuting A-2 only for the offence of criminal conspiracy punishable under S. 120B read with S. 161 IPC and 5(2) read with 5(1)(d) of the Act, evaded the bar contained in S. 195 Cr. PC does not survive for consideration in the light of the argument of Sri Srinivasachar that by staging a raid, A-2 had committed an offence punishable u/S. 5(1)(d) of the Act.

36. In Akki Veeraiah's case, the offences under consideration were under S. 5(1)(c) of the Act and 408 IPC. The two accused were railway employees and they were entrusted with certain funds. In their said capacity, they criminally misappropriated the funds. The Delhi Special Police Establishment filed a charge-sheet before the Joint Magistrate, Vijayawada, alleging that the two accused had committed offences punishable under S. 120B read with Ss. 408 and 477A IPC. It was contended that in truth and substance, the offence disclosed against the two accused fell squarely within the ambit of S. 5(1)(c) of the Act and hence, the prosecution had evaded the provisions of S. 6 of the Act inasmuch as they had not been able to secure sanction under that provision. The contention was upheld. But, in view of the conclusion arrived at by me in the preceding paragraphs, this aspect of the matter need not be gone into under the facts and circumstances of this case.

37. The next ground of attack of Sri Srinivasachar as found in the additional grounds raised by him by way of an application in this petition, is that the offence of criminal conspiracy alleged against A-2 is in regard to the commission of the offence punishable under S. 161 IPC and 5(2) read with 5(1)(d) of the Act and as such S. 195(1)(b)(iii) of the new Code comes into operation.

38. Sec. 195(1)(b)(iii) comes into operation only if the offence of Criminal conspiracy to commit any offence specified in sub-Cl (i) or sub-Cl (ii) is alleged. It has been already held that the provisions of S. 195(1)(b)(i) and (ii) of the new Code do not apply to the facts and circumstances of the case. When that is so, I fail to understand how sub-Cl (iii) of S. 195(1)(b) can operate. Therefore, this contention also has to fail. The last ground raised in the said application is that S. 196(2) of the new Code bars taking of cognizance of the offence of criminal conspiracy alleged against A-2. S. 196(2) of the new Code reads as follows:

“196(2). No Court shall take cognizance of the offence of any criminal conspiracy punishable under S. 120B of the Indian Penal Code, other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upward unless the State Government or the Dist. Magistrate has consented in writing to the initiation of the proceedings;

Provided that where the criminal conspiracy is one to which the provisions of S. 195 apply, no such consent shall be necessary.”

39. The only non-cognizable offence concerned in this case is under S. 466, IPC. The remaining offences are cognizable offences. Therefore, this provision has no application to the facts of this case. Accordingly, the contention has to fail.

40. In view of the foregoing reasons, it is seen that there is no substance in this petition.

41. The petition is accordingly dismissed.