S. L. GOSWAMI versus HIGH COURT OF MADHYA PRADESH AT JABALPUR

[.... ]'

S. L. GOSWAMI

HIGH COURT OF MADHYA PRADESH AT JABALPUR November 23, 1978

[P. S. KAJLASAM: D. A. DESAI AND A. D. KosHAL, JJ.]

Cognizance of an offence under section 466 l.P.C. with section 120-B, without the sanction of rhe Go1·crnn1c11t under .1·ection 196-A(2) of the Criminal Procedure Code, whether valid.

Criminal Procedure Code, 1973 Section I95(1)(c)-Scopc of-Ulhe1her the .sec/ion covers an oflencc under section 466 J.P.C.

On complaint by the Additional Registrar of the Madhya Pradesh High Court alleging that, while the. Paper Book in the Supreme Court appeal was being prepared, the appellant entered, into conspiracy \vith two of the translators of the Court and tampered with the original deposition of one Dr. S. C. Barat (0.W. 1) in an earlier criminal case against the appellant \vhich was under appeal in the Supre1ne Court for which the aforesaid paper book was being prepared, t.he First Class Magistrate committed the appellant and two others to the Sessions Court to take their trial for offences ;under section 466 read •.vith section 120*B of the Penal Code. The appellant and another preferred revision petition before the High Court against the said order of committal. The High Court dismissed the revision 'Petition.

Allowing the appeal by special leave, the Court

HELD:

1. An offence under section 466 I.P.C. is covered by clause (c) of section 195(1) of the Criminal Procedure Code and comes within the purview of that section, as the offence under section 463 I.P.C. is dealt within section 466 l.P.C. Settion 466 I.P.C. is an aggravated form of forgery in that the forgery should relate to document specified in that sect.ion. Section 466 I.P.C., is therefore an offence as described in section 463 T.P.C. which is committed in relation to record or proceeding of or in court of justice. [390F, J-1, 391A-B]

The offences that fall within the purview of section t95(1)(c) Criminal P.C .. are offences described in section 463 I.P.C. and offences punishable under section 471, 475 or 476 of the Penal Code. The language of section 195(1) (c) of the Crl. P.C. is very significant for while referring to sections 471, 475 or 476 LP.C., it uses the word punfahable in the case of section 463 I.P.C. the words are 'the offences described in section 463'. An offence under sec-tion 466 I.P.C. is an offence which falls within the description of section 463 I.P.C., as the offence under section 463 I.P.C. i5 dealt with therein. [3918-D]

Section 195 (1) (a) of the Criminal Procedure Code uses the words "of any offences punishable under section 172 ... " while in clause (b), the words used are "offences punishable under any of the following sections mentioned there-in". In clause (c) the words are "of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same code". Thus dear distinction is maintained in the section between offences

punishable under various sections mentioned and the offence described in section 463. Even on the test laid down in Govind Mehta v. State of Bihar, [1971] Suppl. S.C.R. 777, section 466 I.P.C. would be included within the pur-view of section 195(1)(c) of the Criminal Procedure Code. (391D-E]

described in

Govir1d Mehta v. State of Bihar, '[1971] Suppl. SCR 777; explained and over ruled.

2. The requirement of section 195 ( 1) ( c) is that the document in question should be produced <Jr given in evidence in the proceeding before the Court. The offence committed must in some manner have affected the proceeding:-. or had been designed to affect them or come to light in the course of then1, but an offence co1nmitted after their conclusion is wholly outside. the scope of the provision. [392F-H, 393A]

Legal Reniernbrancer of Govt. of West Bengal v. Hari Das Mundra, [1976] 2 SCR 933, applied.

Pendyala Subbarayudu v. Gudii,ada Gopayya, A.LR. 1932 Mndras 290; approved.

Nirmal Jit Sin;.:li Heon v. State of West Bengal a11d Anr., [1973] 2 SCR 66 and Abdul Khadar and Ors. v. Meera Salieb, I.LR. 15 Mad.

224; referred to.

3. In the instant case (a) sectioo. !96A(2) of the Criminal Procedure Code is attracted and comp1nint by the State Government or the Chief Presidency Magistrate empo,vcred in this behalf by the State Government in writing con-senting to the initiation of the proceedings for an offence under section 120-B l.P.C. is necessary. [3938]

(b) The requirement of section 195(1)(c) having not been satisfied com-plaint by the Court in writing is not necessary. [393A]

(c) Equally under sub-section ( 4) to section 195 relating ~ criminal conspiracy to commit such offence complaint by the Court is not neces-sary. [393A]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 144 of 1972.

Appeal by Special Leave from the Judgment and Order dated 1-2-1972 of the Madhya Pradesh High Court in Criminal Revision No. 709/71.

R. Nagarathnam for the Appellant.

S. K. Gambhir, Miss B. Ramrakhiani and J. M. Khumw for the Respondent.

The Judgment of the Court was delivered by

KA.ILASAM, J. This appeal is preferred by Dr. S. L. Goswami by special leave granted by this Court against the judgment of the High Court of Madhya Pradesh at Jabalpur in Criminal Revision No. 709 of 1971. Criminal Revision No. 709 of 1971 was filed by the appellant

before the High Court for quashing the order of the Magistrate, 1st Class, Jabalpur committing the appellant to Sessions for trial under section 466 read with section 120-B of the Indian Penal Code.

The appellant was prosecuted before the Special Judge, Jabalpur, in Criminal Case No. 5 of 1967 for an offence under section. 5(1)(d) of the Prevention of Corruption Act, 1947, in connection with the defal-cations of Government funds. In that case one Dr. S. C. Barnt was examined as defence witness. The appellant was convicted and an appeal against his conviction before the High Court failed. The appel-lant obtained special leave from this Court to appeal against the order of the High Court. During the pendency of the appeal before the Supreme Court the High Court was required to prepare paper book for use in the Supreme Court. It is alleged that when the paper book was being prepared in the Supreme Court section of the High Court the appellant Dr. Goswami entered into conspiracy with two of the translators and tampered with the original deposition of Dr. S. C. Baral, D. W. l. The Additional Registrar of the High Court f~led complaint before the First Class Magistrate, Jabalpur, a.gainst the appellant for an offence under section 466 read with section 120-B of the Indian PC!1al Code. The case was taken on file by the Magistrate as Criminal Case No. 1924 of 1971. Against the two, persons who were alleged to have conspired with the appellant in tampering with the deposition of Dr. Baral challan was filed by the police before the same First Class Magistrate. The Magistrate by common order on 15th November, 1971 committed the appellant as well as two others to the Sessions Court to take their trial for offences under section 466 read with section 120-B of the Indian Penal Code. The appellant and anolher with whom we are not concerned preferred revision petition against the order of his committal before the High Court. The High Court dismissed the revision filed by the appellant and hence this appeal. The main contentions that are raised in this appeal are: (i) The Magistrate erred in taking cognizance of an offence under section 466 of the Indian Penal Code read with section 120-B, Indian Penal Code, without sanction of the Government under section 196-A(2) of the Criminal Procedure Code; and (2) the offence, if any, was not commit-ted in any court in respect of document produced or given in evidence in such proceeding as required under section 195(i)(c) of the Code of Criminal Procedure.

We will take up the first contention urged by the learned counsel for the appellant, namely that the trial court was in error in taking cognizance of the offence without complaint by the State Government when the

offence charged is one of conspiracy under secion 120-B of the lndi~n Penal Olde as required under section 196-A(2) of the Criminal Pro-cedure Code. Section 196-A(2) reads as follows :-

"196-A. No ccurt shall take cognizance of the offence of criminal conspiracy punishable under section 120-B of the Indian Penal Code.

(2) in case where the object of the conspiracy is to com-mit_ any non-cognizable offence, or cognizable offence not punishable with death, imprisonment for life or rigorous impri-sonment for term of two years or upwards unless the State Government, or Chief Presidency Magistrate or District Magistrate. empowered in this behalf by the State Government had by order in WTiting consented to the initiation of the proceedings;

Provided that where the Criminal Conspiracy is one 10 •>hich the provisions of sub-section (4) of iection 195 apply no such consent shall be necessary."

Section, 466 deals with non-cognizable olience and the suh-clausc (2) to section l 96A provides that where the object of the conspiracy is to commit non-cognizable offence an order in writing consenting to the initiation of proceedings is necessary by the State Government or the Chief Presidency Magistrate or the District Magistrate empowered in this behalf by the State Government. No such consent in writing was obtaiQed in this case. An exception to this requirement is made by the Proviso which states that if the criminal conspiracy is one to which the provisions of sub-section ( 4) of section 195 apply no such consent shall be necessary. It is, therefore, necessary to determine whether the offence complained of is qnc that falls under section 195 ( 4) in which case consent for initiation of the proceedings is not necessary.

Section 195(1)(c) and section 195(4) which are necessary for the discussion may be extracted.

"195. ( 1) No Court shall take cognizance-

(a) * * * *

( c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been

committed by party to any proceeding in any Court in respect of 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.

(2) * * • (3) * * •

( 4) The provisions of sub-section (1) ; with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences. and attempts to commit.

Sub-section ( 4) makes the provisions1 of sub-section ( 1) with reference to the offences named applicable to criminal conspiracy to commit such offences also. If the offence falls under provisions of sub-section ( 1) to section 195 then criminal conspiracy to commit such offences would also tall under section 195 ( 1) and require the complaint in writing by the court before the offence can be taken cognizance of. The requirements of section 195(1) (c) are:

(I) The offence must be ono as described in s·ecliDn 463 or punishable under sections 471, 475 or 476 of the J.P.C.

( 2 J Such offences should be alleged to have been com-mit~cd by party to any proceeding in any court;

( 3) Such offence should be in respect of document pro-duced or given in evidence in such proceeding.

The offence for which the appellant is committed to take his trial is that there was consent of the appellant also in comlilllting the cons-piracy for committing forgery of the record by tampering the evidence of Dr. Barat while the records were being prepared by the High Court for being sent to the Supreme Court for use in the appeal pending before the Supreme Court.

The first requirement is th!1t the offence shou'd be one as described in section 463 or punishable und•er section 471, se~tion 475 or section 476 of the Indian Penal Code. It was submitted that as section 466, Indian Penal Code, is not one of the sections mention-ed, the offence will not fall under the provisions of section 195 (I ) ( c)

and the section will not apply. In support of this view decision of this Court in Gov ind Mehta v. State of Bihar('), wa~ relied on. In that case, on complaint by the District Public Prosecutor the appcl-la11t before this Court was committed to the S•.:ssions to t'lkc trial under sections 167, 466 and 467 of the Indian I\:nal Cock One of the contentions raised before this Court was that the offence under section 466, Indian Penal Code, is not covered by clauses ( b) and (c) of ocction 195(1) and thcrdore section 195 does not operate as bar to taking cognizance of an offence under section 466, Indian Penal Code. This Court after agreeing with the view ot the High Court that section 19 5 ( 1) ( b) or ( c) is no bar to the Magistr~te taking cognizance for an offenc•.; under section 167 observed: "The offence under section 466 of the Penal Code is, admittedly, not covered by clause (b) or clause (c) of section 195(1) of the Code. Therefore, that section does not operate as bar in respect of this offer.cc." Again at p. 785 this Court observed : "Section 463 of the Penal Code is, no duubt, taken in by Clause (c) of Section 195(1) of the Code. Even on the basis that Secti011 465 of the Penal Code will also be cowred by Clause ( c) as the offe1m~ under Section 463 is dealt with therein, ne•ertheless, Clause (c) will not operate as bar to the jurisdiction of the Magistra'e in taking cognizance of the said offenC'e as the offence is not alleged to have been committed 'by party to any proceeding in any court. .. ' We have also rderred to the fact that the appellant has been committed only for the offence und·er Sections 167, 466 and 4 71 of the Penal Code. Section 465 of the Penal Code is not the subject of the committal order." We have gi\'en our careful concLlcration to the view expressed in the abov.,; decision that section 466 cf the. Indian Penal Code is not covered by clause ( c) of sccticn 19.5(1) 0f the Criminal Procedure Code. We regret our im;bility to subsc1ibe to this view. At p.785 of the Report the Court look the view that though section 465 of the Indian Penal Code is not specifically mentioned in section 195(1) (c) of the Criminal Procedure Code ac; the offence under section 463 Indian Penal Code is dealt with in section 465, Indian Penal Code, clans•.; (c) of section 195(1) will not operate as bar to the Magistrate taking cognizance of tk offence. The Court, though section 465 is not specifically mentioned in section i95(1)(c), held that section 195(1)(c) is applicable as an olkncc under section 463 is dealt with under section 465, Indian Penal Cr.de. On the same reasoning section 466 should also be held to come within the purview of section I 95 (I)( c), Criminal Procedure Code, as the offunce nnder section 463 is dealt with in section 466. Section 463, Indian Penal Code, defines forgery. The elements of

(ll [19711 Supp. s.c.R. /77.

forgery are : (1) The making of false document or part of it; (2) Such making should be with such intention as is specified in the sec-tion. Section 464 states when person is said to make false docu-ment which is one of the requif'cments under section 463. Section 465 provides the punishment for an offence under scct10n 463. Sec-tion 466 is an aggravated form of forgery in that the forgery should relate to document specified in the section. One of the documents specillcd is document purporting to be record or proceeding of er in Court of Justice. Section 466, Indian Penal Code, is therefore an offence as described in section 463 which is committed in rcla ti on to record or proceeding of or in court of juslioc. The offences that fall within the purview of section 19 5 (I) ( c) are offences described in section 463 and offences punishable under sections 471, 475 or 476 c1f the Indian Penal Code. The language of section 195(l)(c) is very significant for while referring to sections 474, 475 or 476, Indian Penal Code, it uses the word punishable, in the case of section 463 the words used are the 'olknces described in section 463'. An offence under section 466 is an olfonce which falls within the description of section 463 as the offence under section 463 is dealt with therein. Section 195 (I) (a) of the Criminal Procedure Code uses the words "of any ollence punishabk under section 172" while in ciause (b) the words used are "offence punishable under any of the following sections" mentioned therein. In clause (c) a.s already pointed out the words used are "of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code". Thus clear distinction is maintained in the section between offences punishable under various sections mentioned and the offence des-cribed in section 463. Even on the tecst laid down by this Court in Govi11d Mehta v. State of Bihar (supra) section 466 would be included within the purview of section 195(1) (c). We are, there-fore, of the view that the decision that section 466 of the Indian Penal Code is not covered by clause (b) or c:aus.c ( c) of section 195(1) is erroneous and not good law. The question of law was not rnnsidcred and the decision was reached on an admission made by the parties. We will now deal with the other requirements of section 195 (I)'( c) namely that the ofl'cnce should be alleged to have been committed by party to any proceeding and that it should be in respect of docu-ment produced or giwn in evidence in such proceeding. It is admitted that the appellant was party in the appeal that he preferred against his convict:on before the High Court but the appeal was decided against him and the conviction confirmed. Special leave was granted against his conviction and for hearing of the appeal before the

Supreme Court the paper book was being prepared by the High Court. It was during that time that it is alleged that the appellant entered into conspiracy and tampered with the evidence of one of the defence witnesses which is record of the court. Tnc appellant was party to proceeding in the High Court when the appeal was heard but the document complained of as having been tampered with i .. ~. the evidence of the defence witness, was not produced or given in evidence in the appeal before the High Court. The document was certainly not produced or given in evidence in the High Court pro-ceedings. The alleged tampering was after the hearing of the appeal was concluded. No doubt, the tampering was in proceedmg in rela-ticm to the preparation of the record whether such tampering would be in ndation to proceeding in Supreme Court in respect of docu-ment produced or given in evidence before it does not arise for con-sideration before us as the complaint in the case is filed only by the High Court. In Abdul Khader and Ors. v. Meera Saheb([1]) Bench of the Madras High Court held that where decree against certain defendants had been passed upon the oath of the plaintiffs and where the documents alleged to be forgeries have been put into Court but were not given in evidence it would not be an offence committed by party to any proceeding in any court in respect of document given in evidence in such proceeding though the documents were put in court in suit pending before it but were not given in evidence Subsequent to this decision ·section 195(/l)(c) was amended so as to include documents "produced" in addition to documents given in evidence. In Pendyala Subbarayudu v. (Gudivada) Gopayya(') if was held that it was indispensable that the offence committed must in some manner have affected the proceedings or had been designed to effect them or come to light in the course of them but an offence committed after their close is wholly outside th~ scope of the pro-vision. We agree with the vkw expressed in the decision. In Nirmaljit Singh Iloou v. The State of West Bengal and Anr.([3]) it was held that dccu;nent produced in proceeding before the court during the investigation by the police ordered under section 156(3) of the Cri-minal Procedure Code would not be document produced in pro-ceeding J:,efore the court so as to attract the ban under section 195(1) ( c) of the Criminal Procedure Code. This Court in recent decision in Le~al Remembrancer of Government of West Bengal v. Ilaridas Mundra(') held that the requirement of section 195(1)(c) is that the document in question should be produced or given in evidence in the (!) 1.L.R. 15 M d. 224.

(2) A.I.R. 1932 Mad. 290. (3) [1973] 2 S.C.R. 66. (4) [1976] 2 S.C.R. 933.

..... ·-I

proceedi;1g before the court. We find on the facts of the case that it has not been established that the document was produced or given in evidence in proceeding before the court. The, requirements of section 195 (! )( c) having not been satisfied complaint by the court in writing is not necessary. Equally, under sub-section ( 4) to section 195 relating to criminal conspiracy to commit such offence com-plaint by the court is not necessary. Therefore, section 196-A(2) is attracted and complarnt by the State Government or the Chief '.Presidency Magistrate or District Maigstrate compowered in this behalf by the State Government in writing consenting to the initiation <if the proceedings for an om~nce under section 120-B, Indian Penal ·Code is necessary. As in this case no such order consenting to the ir.itiation of proceedings was passed we accept the contention of the learned counsel for the appellant that the Magistrate had no jurisdic-tion to take cognizance of the offence against the appellant. In the Tesult, we allow the appeal, reverse the judgment of the High Court and quash the order of committal passed by the Magistrate. First Class, Jabalpur.

Appeal allowed.