Harinath Singh v. State

S.D Khare, J.:— These three connected miscellaneous applications have been filed by Harnath Singh (hereinafter referred to as the applicant) under Sec. 561-A of the Code of Criminal Procedure, and the prayer in each is that the criminal proceedings against the applicant, pending in the court of Additional District Magistrate (Judicial), Varanasi, under Sec. 218 read with Sec. 109, I.P.C be quashed.

2. These three applications first came up for consideration before Verma, J. He noticed that there was difference of opinion between single Judge decisions of this Court. He, therefore, directed that the papers of these applications be laid before the Hon'ble the Chief Justice for constituting a Division Bench. The facts leading to these miscellaneous applications might be briefly stated as follows. There were certain bhumidhari plots in village Belwa, within police circle Baragaon, district Varanasi, belonging to one Nanku Singh and Sm. Sumitra. Nanku Singh executed a sale deed in respect of his half share in the property in favour of Kamla Prasad Singh (hereinafter referred to as the complaint) on 4th December, 1962. That infuriated the applicant, who happened to be an influential person, and wanted to purchase the land for himself. In order to defeat the claim of the complainant to the land in suit under the aforesaid sale deed the applicant, in collusion with the two lekhpals, got fictitious entries made in the Khasras for the years 1353F. to 1370F and filed an application for correction of papers in the court of the Tahsildar, sometime after 4th December, 1962 but in collusion with the reader of the court of the Tahsildar he got his application entered in the register of the court as one filed on 9th Nov. 1962, and bearing serial No. 116. It is on the basis of these facts that three separate complaints were filed under Sec. 218, I.P.C against the two lekhpals and the reader of the court of the Tahsildar, and in each of those cases the applicant was made a co-accused for having abetted the offence punishable under Sec. 218, I.P.C

3. It is contended by the learned counsel for the applicant that the substance of the allegations against the applicant in all these cases was that he had committed an offence of fabricating false evidence punishable under Sec. 193, I.P.C and, therefore, in view of the bar created by Sec. 195, Cr. P.C that no court shall take cognizance of any offence punishable under Sec. 193, I.P.C 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 report or of some other court to which such court is subordinate, the alleged offence committed by the applicant has been given the garb of three separate offences punishable under Sec. 218/109, I.P.C

4. In order to appreciate the argument of the learned counsel for the applicant the relevant provisions of Secs. 192 and 218, I.P.C have got to be examined. Sec. 192 provides:—

“Whoever causes any circumstances to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry for false statement may appear fin evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstances, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said ‘to fabricate false evidence’.”

5. Section 218, I.P.C lays down:

“Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely, that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

6. The material portion of the complaint against Mangla Prasad Pandey (reader) and the applicant reads as follows:—

“After the complainant had got the sale deed executed on 4-12-1962 the accused No. 2 (Harnath Singh) thereafter in collusion with the lekhpals got fictitious entries made in the remarks column of the khasras, and on the basis of those forged and fictitious entries sometime after 4-12-62 in collusion with accused No. 1 (Mangala Prasad (Pandey, reader) gave an application for the correction of the jamabandi in the court of the Tahsildar who has no power to decide such applications…. The application, though in fact it was given after 4-12-1962 was, ante-dated as being of 9-11-1962 and was assigned serial No. 116 in the register of cases and entered as such.”

7. In the other two complaints which are against the two lekhpals no definite allegation constituting an offence under Sec. 193, I.P.C was made. The only material allegation made therein was that the false entries in the khasras were made after 4th December, 1962, in collusion with Harnath Singh (applicant) and with a view to injure the complainant.

8. The contention of the learned counsel for the applicant is that the allegation regarding conspiracy to harm the complainant by means of the aforesaid forgeries' all of which were committed in great haste after 4-12-1962 could only mean that the conspiracy was to make the applicant successful in the case for correction of papers against the complainant and that the alleged forgeries committed by the lekhpals and the reader were forgeries done in connection with judicial proceedings. It is further contended that the alleged forgeries could not have been committed merely for the sake of committing forgeries in public records. They were the result of conspiracy to injure the complainant and to confer benefit upon the applicant. It is contended that the alleged conspiracy in the circumstances of the case could have meant nothing else but to prepare such false documents and evidence as could be made use of in the case for the correction of jamabandi so that on account of those forged documents the Court may form an erroneous opinion regarding the point of possession.

9. The learned counsel for the complainant has, however, contended that in the present case there is no allegation that the person who were abetted (that is to say the lekhpals) had the same intention or knowledge as that of the abetter (that is say, the applicant). It is argued that the lekhpals might have made false entries in the remarks column of the khasra after having accepted some bribe and without knowledge that the entries forged by them will be used in any court of law. It has, therefore, been contended that the lekhpals could only be proceeded against under Sec. 218, I.P.C and the applicant could only be made a co-accused with them for having abetted an offence under Sec. 218, I.P.C

10. In our opinion there is no force in the above contention raised on behalf of the complainant. Whether or not the lekhpals and the reader committed an offence under Sec. 193, I.P.C is immaterial for the purposes of these three miscellaneous applications. None of those persons has applied that the proceedings against him under Sec. 218 of the Indian Penal Code be quashed. The application is only on behalf of Harnath Singh (applicant). It is the intention of the applicant at the time of abetting the offences of forgeries which will be material. Sec. 110 of the Indian Penal Code lays down:—

“Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abetter, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abetter and with no other.”

11. In case the intention of the abetter and the persons abetted had been the same, there can be no doubt that the offence which in the circumstances of the case would have been committed must have been one as defined under Sec. 192, I.P.C punishable under Sec. 193, I.P.C The abetter could, therefore, be deemed to have abetted and be liable to be punished only for an offence punishable under Sec. 193, I.P.C and for no other offence.

12. Under Sec. 195, Cr. P.C no court shall take cognizance of any offence punishable under Sec. 193, I.P.C 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. The bar of Sec. 195, Cr. P.C will, therefore, be against the cognizance of these offences alleged to have been committed by the applicant and though punishable under Sec. 193, I.P.C, misdescribing as punishable under Sec. 218/109, I.P.C

13. Till the year 1953 before the decision of the Supreme Court in a case under Sec. 195, Cr. P.C was received, the view taken by the High Courts of Allahabad and Madras was that if upon a given set of facts two similar offences under the provisions of the Indian Penal Code could be made out with regard to one of which a bar existed under Sec. 195, Cr. P.C and with regard to the other there was per se no such bar, no court should take cognizance even of the second offence (with regard to which per se the bar of Sec. 195, Cr. P.C does not exist) without the removal of the bar as provided by Sec. 195 read with Sec. 476, Cr. P.C The reason mentioned was that to do otherwise would be to defeat the provisions of Sec. 195, Cr. P.C

14. It was held in the case of Ram Harsh Tewari v. Rex A.I.R 1950 All. 465 that where the facts stated in the complaint amount to an offence under Sec. 193, Penal Code in the absence of a complaint by the court under Sec. 195(1)(b), Cr. P.C it is not open to the complainant to say that he would confine his case to an offence under Sec. 465, I.P.C for which no complaint by the court is needed, though the nature of the offence is the same.

15. The first Madras case on that point is of Perianna Muthirian v. M. Vengu Iyyar A.I.R 1929 Mad. 21.. The complaint in that case stated that certain persons conspired with others and forged a document with the deliberate object of using it in evidence in certain proceedings pending in a court and other proceedings that might follow and that it was actually so used in the proceedings pending before a court. It was held that the offence complained of fell under Cl. (b) of sub-Sec. (1) of Sec. 195, Cr. P.C and, therefore, the complaint could not be taken cognizance of except on the complaint in writing of the court in which the offence was alleged to have been committed. It was also held that it was not open to the court to try the accused either for fabricating evidence or for fraud because the specific offences of fabricating false evidence should be given preference over the more general offence of forgery.

16. Similar view was expressed in the following cases below:—

(1) K.S Subramania v. Swamikannu A.I.R 1933 Mad. 413. decided by a single Judge. (Facts alleged made out offence under Secs. 193 and 471, I.P.C).

(2) Appadurai Nainar v. Emp. A.I.R 1936 Mad. 89. decided by a Bench of two Judges. (Facts alleged made out offence punishable under Secs. 193 and 467, I.P.C).

(3) Srinivasa v. Ramasami A.I.R 1945 Mad. 9. decided by a single Judge. (The facts alleged made out offences punishable under Secs. 193 and 167, I.P.C).

(4) In re Antarvadi Sarma6, decided by a single Judge. (The facts alleged made out offences punishable under Secs. 193 and 467, I.P.C).

(5) In re Chinnayye Goundan7, decided by a single Judge. (The facts alleged made out offences punishable under Secs. 188 and 143, I.P.C).

17. In some other cases exception was, however, made with regard to an offence falling under Sec. 500, I.P.C It was held that if upon the same set of facts two separate offences—one falling under Sec. 193, I.P.C and the other punishable under Sec. 500, I.P.C—appeared to have been made out, a complaint under Sec. 500, I.P.C could be lodged by a private individual and Sec., 193, Cr. P.C is no bar to such a complaint. The reason given was that the two offences did not relate to the same group of offences. Their ingredients were dissimilar and the nature of the two offences was distinct and separate. The following two cases are authorities for the above proposition of law:

(1) The Full Bench case of Narayana Ayyar v. G.V Pillai A.I.R 1951 Mad. 34. and

(2) Satish Chandra v. Ram Dayal 24 C.W.N 982..

18. The matter relating to this exception in favour of a complaint under Sec. 500, I.P.C came up for consideration before the Supreme Court in the case of Basirul Haq v. State of West Bengal A.I.R 1953 S.C 293.. The facts of that case were that the mother of the respondents, Dhirendra Nath Bera, had died and he along with certain other persons had taken her dead body to the cremation ground. One Nurul Huda (appellant) lodged information at the police station to the effect that the respondent had beaten and throttled his mother to death. When the funeral pyre was in flames Nurul Huda, along with other appellants and accompanied by a Sub-Inspector of Police, arrived at the cremation ground. The appellants pointed out the dead body and told the sub-inspector that the complainant had killed his mother by throttling her, and there were marks of injury on the body which they could show to the Sub-Inspector if he caused the body to be brought down from the pyre. At their suggestion the fire was extinguished and the dead body was taken down from the pyre in spite of the protests from the complainant. On an examination of the dead body it was found that there were no marks of injury on it and the appellants were unable to point out any such marks. The body was sent for postmortem examination but no injury was found on the person of the deceased. The Sub-Inspector, after investigation, arrived at the conclusion that a false complaint had been made against Dhirendra Nath Bera respondent. Complaints were filed by the respondent against the appellants under Secs. 297 and 500, I.P.C on the ground that the information given by Nurul Huda to the police was false, that the appellants had made imputations mala fide out of enmity with the intention of harming the reputation of the respondent and that to wound his religious feelings they had trespassed on the cremation ground and caused the dead body to be taken out by making false imputations. The Magistrate held the charges proved against all the appellants and convicted them under Secs. 297 and 500, I.P.C An appeal was filed and it was dismissed. A revision application was filed and it was contended that the only offence which could be said to have been committed by the appellants was one under Sec. 182 or Sec. 211, I.P.C and a court was not competent to take cognizance of those offences except on a complaint by a proper authority under the provisions of Sec. 195, Cr. P.C The contention of the appellant was not accepted by the High Court as it could in no way be said that the complaint against them arose out of the facts which would constitute an offence under Sec. 182 or Sec. 211, I.P.C On the other hand, it was held by the Calcutta High Court that the complaint so far as the prosecution under Sec. 297, I.P.C was concerned, arose from an entirely different set of facts, namely, the trespass made by the opposite parties on the cremation ground. With regard to the offence under Sec. 500, I.P.C it was observed by the Calcutta High Court that though a prosecution for defamation was based on false information given to a public authority, that circumstance could be no bar for the prosecution of the appellant under Sec. 500, I.P.C for the simple reason that the two offences punishable under Secs. 182 and 500, I.P.C were quite dissimilar in nature. When the case came up in appeal before the Supreme Court it was held that the charge for the offence under Sec. 297, I.P.C could in no circumstance, as rightly pointed out by the High Court, be described as falling within the purview of Sec. 195, Cr. P.C because (1) the act of the trespass was alleged to have been committed subsequent to the making of the false report and (2) all the ingredients of the offence that had been held to have been established on the evidence concerned the conduct of the appellant during the post-report period. With regard to the charge under Sec. 500, I.P.C it was observed by the Supreme Court that where the allegations made in the false report to a public authority disclosed two offences, one against the public servant and the other against private individual the prosecution of each of the two offences which were distinct in nature could be held separately and the private individual, who was defamed, could lodge a complaint (Vide Sec. 198, Cr. P.C) without waiting for a complaint by a public authority to whom false information was conveyed. It was also observed that the two offences were quite distinct and their ingredients were entirely different and that the procedure for enabling the Magistrate to take cognizance (Vide Secs. 195 and 198, Cr. P.C) was also different.

19. While the appeal was being argued before the Supreme Court a preliminary point was raised, that if on the same facts an offence of which cognizance could not be taken under the provisions of Sec. 195, I.P.C is disclosed and the same facts disclosed another offence as well which is outside the purview of that section and the prosecution for that other offence is taken cognizance of without the requirements of Sec. 195, Cr. P.C having been fulfilled, then the provisions of that section would become nugatory, and if such a course was permitted those provisions would stand defeated. Their Lordships of the Supreme Court, while disposing of that objection, observed that the contention could have no force so far as the case before them was concerned. They further observed that the facts of that case were such that no serious objection could be taken that the provisions of Sec. 195, Cr. P.C would stand defeated by the Magistrate if cognizance of an offence under Sec. 500, I.P.C was taken.

20. Their Lordships of the Supreme Court did not overrule the preliminary objection on any general ground that such an objection could never be taken. On the other hand they recognised its force by distinguishing the case before them and by making the following important observations:—

“Though, in out judgment, Sec. 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 restoring to devices, or camouflages. The test whether there is evasion of the section or not is whether the facts disclosed 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 does 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 the Sec. 195, Cr. P.C 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.”

21. It is clear from the above observations made by their Lordships of the Supreme Court that even for offences cognizance of which was not per se barred under Sec. 195, Cr. P.C no Magistrate could be allowed to take their cognizance if it was not a ‘distinct’ offence or if in truth and substance the offence fell under the category of sections mentioned in Sec. 195, Cr. P.C The view taken earlier by the Allahabad High Court and the Madras High Court was, therefore, not dissented from by the Supreme Court.

22. After the decision given by the Supreme Court a similar point arose for consideration before the Madras High Court and it followed the old view of that Court in the case of Perianna Muthirian v. M. Vengu Ayyar. However, in the case of Ganga Singh v. State A.I.R 1962 All. 150., Broome, J. placing reliance on Basirul-Haq's case arrived at the conclusion that the offence under Secs. 193 and 218, I.P.C were distinct offences and, therefore, prosecution for an offence under Sec. 218, I.P.C was not barred under Sec. 195(1)(b), Cr. P.C If the same set of facts revealed both an offence under Sec. 193, I.P.C and an offence under Sec. 218, I.P.C with great respect we are unable to accept that view. The offences punishable under Secs. 193 and 218 are no doubt separate offences punishable under separate sections of the Indian Penal Code, but merely on that basis they cannot be said to be distinct offences from the simple reason that on facts of a particular case one offence may be wholly included in the other offence, as in the present case the offence under Sec. 218, I.P.C when committed with the necessary intention, would be wholly included in the offence under Sec. 193, I.P.C The rule in Basir-ul-Haq's case will apply only if the two offences had been both distinct and separate, or if the facts alleged made out primarily and essentially an offence punishable under Sec. 218, I.P.C

23. Before we part with these miscellaneous applications we must also refer to the following two cases relied upon by the learned counsel for the complainant:—

(1) Om Prakash v. State of U.P A.I.R 1957 S.C 458..

(2) Emperor v. Raja Kushalpal Singh A.I.R 1931 All. 443..

24. On the basis of Om Prakash v. State of U.P, it has been argued that the view expressed by the Supreme Court in Basir-ul-Haq's case should be interpreted to mean that where from the same set of facts two separate offences are made out and the cognizance of one is not per se barred by Sec. 195, Cr. P.C its cognizance by a Magistrate should not be held to be barred under the provisions of Sec. 195, Cr. P.C on the ground that it will defeat the provisions of that section. The case of Emperor v. Raja Kushalpal Singh is relied upon for the contention that in whatsoever manner the ruling of their Lordships of the Supreme Court in Basir-ul-Haq's case is interpreted, the proceedings pending before the A.D.M (J), Varanasi cannot be quashed as sec. 195, Cr. P.C shall have no application to the facts of the case for the simple reason that the alleged offences of forgery were committed sometime before the case in the Tahsildar's court was instituted.

25. In our opinion there is no force in any of these contentions. In the case of Om Prakash v. State of U.P the effect of a similar provision, to wit Sec. 6 of the Prevention of Corruption Act (bar of sanction for prosecution) came up for consideration. The accused was alleged to have committed two offences One falling under Sec. 409, I.P.C and the other falling under Sec. 5(1) of the Prevention of Corruption Act, which was a temporary Act. It was held that the two offences were not similar offences, that the temporary Act had created an entirely new type of offence called “criminal misconduct,” that the two offences (one under Sec. 409, I.P.C and the other under Sec. 5(1) of the Prevention of Corruption Act) are distinct and separate and that the accused can be prosecuted against and convicted under Sec. 409, I.P.C even though for want of sanction no prosecution could be started under Sec. 5(1) of the Prevention of Corruption Act.

26. In our opinion the case of Om Prakash v. State of U.P does not in any way modify the opinion already expressed in Basir-ul-Haq's case. It is to be noted that no reference to Basir-ul-Haq's case was made in later decision. The observation made by their Lordships of the Supreme Court that the offence punishable under sec. 409, I.P.C and the offence of criminal misconduct punishable under Sec. 5(1) of the Prevention of Corruption Act are distinct and separate offences clearly indicated that the old view was to be maintained. A similar point was involved in Hori Ram Singh v. Emperor A.I.R 1939 F.C 43. in which it was held that offences under Secs. 409 and 467-A, I.P.C were distinct and separate and the accused could be prosecuted and convicted for an offence under Sec. 409, I.P.C even though there did not exist any sanction for prosecution under Sec. 467-A, I.P.C Their Lordships of the Supreme Court, while disposing of the appeal in Basir-ul-Haq's case had noticed the case of Hori Ram Singh. The case of Om Prakash v. State of U.P (supra) is more in line with the case of Hori Ram Singh v. Emperor than with Basir-ul-Haq's case.

27. It was held in the case of Emperor v. Raja Kushalpal Singh that the words “offence……” alleged to have been committed by a party to a proceeding in any court” mean an offence committed by a party, who is already a party to a proceeding in court, in respect of a document produced or given in evidence in such proceeding. The case of Emperor v. Raja Kushalpal Singh was decided by a Special Bench of three Judges on its peculiar facts and that is why the question referred to the Special Bench was described by it was a mixed question of fact and law. The documents which were alleged to be forged were not used in any judicial proceeding. Twenty-eight years after they had been forged they were summoned in one judicial proceeding, but were rejected by the trial court as irrelevant. They were, however, filed and admitted by the High Court in appeal but at the time appeal was argued no party made use of those documents as they were not at all relevant to the facts of the case then pending. It was in these circumstances that it was held that a private complaint is not barred.

28. The above mentioned case can be distinguished on two grounds — (1) in that case, no forgery had been committed in or in relation to a judicial proceeding; and (2) it was a case governed by sub-Cl. (c) of sub-Sec. (1) of Sec. 195, Cr. P.C in which the word ‘party’ occurs. That word does not occur in Cl. (b) of sub-Sec. (1) of Sec. 195, Cr. P.C While considering these miscellaneous applications we are concerned with Cl. (b) and not with Cl. (c) of sub-Sec. (1) of Sec. 195, Cr. P.C

29. The learned counsel for the applicant has invited our attention to an earlier Bench decision of this Court in Emperor v. Bhawani Das I.L.R 38 All. 169., in which it was held that the words “offence committed by a party to any proceeding in any court” refer not to the date of the commission of the alleged offence but to the date on which cognizance of the criminal court is invited. He has also cited several rulings of various other High Courts in India in support of the same point.

30. We need not consider all those rulings in detail. We are of the view that for reasons stated in the preceding paragraph the case of Emperor v. Raja Kushalpal Singh is not applicable to the facts of the present case and that for the bar created under Cl. (b) of sub-Sec. (1) of Sec. 195, Cr. P.C it is enough to prove a clear connection between the offence and the legal proceedings on account of which the aforesaid bar is invoked and that it is not necessary that the legal proceedings must be pending at the time the offence, the cognizance of which is barred was committed.

31. The result is that all the three connected applications under Sec. 561-A, Cr. P.C are allowed and the criminal proceedings pending against the applicant and another in the court of A.D.M (J), Varanasi, are quashed only so far as the applicant is concerned and the applicant is discharged.

32. Applications allowed.