ASHOK GULABRAO BONDRE versus VILAS MADHUKARRAO DESHMUKH AND OTHERS

[2023] 3 S.C.R. 820

[2023] 3 S.C.R.

AASHOK GULABRAO BONDRE

VILAS MADHUKARRAO DESHMUKH AND OTHERS

(Criminal Appeal No. 1931 of 2011)

BAPRIL 12, 2023

[B. R. GAVAI AND SANJAY KAROL, JJ.]

Code of Criminal Procedure, 1973 – s.195 – Documentsallegedly fabricated and forged prior to filing in evidence, embargou/s.195 if applicable – On appeal, held: s.195(1)(b)(ii) would beCattracted only when the offence enumerated in the said provisionwas committed in respect of document after it has been producedor filed in evidence during proceedings before any Court, i.e. duringthe time when the document is custodia legis – In such case, theCourt will be entitled to take cognizance of the offence only on theDbasis of the complaint made by the complainant – Impugnedjudgment and order passed by the Revisional Court and the HighCourt set aside – Matter remitted back to JMFC for considering thecomplaint of the appellant on its own merits.

Iqbal Singh Marwa and Another v. Meenakshi MarwahEand Another (2005) 4 SCC 370 : [2005] 2 SCR 708 –followed.

Surjit Singh and Others v. Balbir Singh (1996) 3 SCC533 : [1996] 3 SCR 70; Sachida Nand Singh andAnother v. State of Bihar and Another (1998) 2 SCCF493 : [1998] 1 SCR 492 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1931 of 2011.

From the Judgment and Order dated 18.02.2010 of the High Courtof Judicature at Bombay Bench at Nagpur in CRLA No. 3121 of 2009.H

ASHOK GULABRAO BONDRE v. VILAS MADHUKARRAODESHMUKH AND OTHERS

Ms. Anagha S. Desai, Sachin Patil, Satyajit Desai, SiddharthGautam, Gajanan N Tirthkar, Abhinav K. Mutyalwar, Yougant Dhillon,Advs. for the Appellant.

Rahul Chitnis, Ms. Shwetal Shepal, Aditya Kumar, ChanderShekhar Ashri, Aaditya Aniruddha Pande, Siddharth Dharmadhikari,Bharat Bagla, Sourav Singh, Advs. for the Respondents.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. The appeal arises on very narrow canvass.

2. The appellant had filed complaint against the respondentsalleging that the respondents had committed the offence punishable underSections 191, 192, 196, 463, 464, 465, 467, 470 and 471 read with Section34 of the Indian Penal Code, 1860 (for short, “IPC”).

3. The main allegation made by the appellant is that respondentNo.2 - Ramprasad Pancheshwar had prepared false and forgeddocuments, namely, personal recognizance bond and surety bond inCriminal Case No. 19 of 2003 and the rest of the respondents conspiredand actively helped respondent No.2 for forging the said documents.

4. It is the case of the appellant that those documents had beeneventually filed on record in Criminal Case No. 19 of 2003 pending againstthe appellant before the Judicial Magistrate First Class, Ramtek(hereinafter referred to as the “JMFC”).

5. The learned Judicial Magistrate First Class vide order dated 6[th]November 2004 dismissed the complaint. Being aggrieved thereby, therevision petition came to be filed.

6. Learned Additional Sessions Judge, Nagpur vide order dated14[th] March 2005 has held that such complaint could not have beenfiled except in writing of the Court concerned or some other Court, thattoo subordinate one.

7. Learned Additional Sessions Judge, however, found that theallegations made by the revision petitioners were serious in nature, andtherefore, directed that if any application is filed by the appellant underSection 340 of the Criminal Procedure Code, 1973 (for short, “Cr.P.C.”),the learned JMFC would make suitable preliminary enquiry and

Athereafter, record his finding to that effect as contemplated under Section340 of the Cr.P.C.

8. The said order passed by the Revisional Court came to bechallenged by the appellant before the High Court in an application filedunder Section 482 of the Cr.P.C. The same came to be rejected. Hence,Bthe present appeal.

9. We have heard Mr. Sachin Patil, learned counsel appearing forthe appellant and Mr. Rahul Chitnis and Mr. Aaditya Aniruddha Pande,learned counsel appearing for the respondents.

10. Mr. Sachin Patil submits that the alleged forgery had not beenCcommitted during the pendency of the proceedings. It is submitted that itis the contention of the appellant that the respondents had forged thedocuments earlier and used them in the proceedings initiated against theappellant. It is, therefore, submitted that the bar of Section 195 of theCr.P.C. would not be applicable.D11. Mr. Sachin Patil has relied on the judgment of the ConstitutionBench of this Court in the case of Iqbal Singh Marwa and Another v.Meenakshi Marwah and Another[1].

12. Mr. Sachin Patil further submits that though the judgment ofthe Constitution Bench was cited before the learned Single Judge of theEHigh Court, it did not consider the same in correct perspective.

13. Mr. Rahul Chitnis, on the contrary, submits that the appellanthas already accepted the order passed by the Revisional Court and filedan application under Section 340 of the Cr.P.C. before the learnedMagistrate. He further submits that, on account of the interim reliefFgranted in the present appeal, the said application could not be proceededfurther. He submits that as such, the question that is involved in thepresent matter is purely an academic question in which the Court shouldnot go.

14. Mr. Aaditya Aniruddha Pande, supports the submission madeGby Mr. Rahul Chitnis.

15. The narrow question that requires to be considered is as towhether the embargo under Section 195 of the Cr.P.C. would beapplicable when the allegation that the documents which are sought to

H1 (2005) 4 SCC 370

be used as evidence were already fabricated and forged prior to filing inevidence.

16. This Court, in the case of Surjit Singh and Others v. BalbirSingh[2], had taken view thus:

“10. It would thus be clear that for taking cognizance of an offence,the document, the foundation of forgery, if produced before thecourt or given in evidence, the bar of taking cognizance underSection 195(1)(b)(ii) gets attracted and the criminal court isprohibited from taking cognizance of offence unless complaintin writing is filed as per the procedure prescribed under Section340 of the Code by or on behalf of the Court. The object therebyis to preserve purity of the administration of justice and to allowthe parties to adduce evidence in proof of certain documentswithout being compelled or intimidated to proceed with the judicialprocess. The bar of Section 195 is to take cognizance of theoffence covered thereunder.”

17. Subsequently, this Court, in the case of Sachida Nand Singhand Another v. State of Bihar and Another[3], took the view thus:

“11. The scope of the preliminary enquiry envisaged in Section340(1) of the Code is to ascertain whether any offence affectingadministration of justice has been committed in respect of adocument produced in court or given in evidence in proceedingin that Court. In other words, the offence should have beencommitted during the time when the document was in custodialegis.

12. It would be strained thinking that any offence involvingforgery of document if committed far outside the precincts ofthe Court and long before its production in the Court, could alsobe treated as one affecting administration of justice merely becausethat document later reached the court records.

23. The sequitur of the above discussion is that the bar containedin Section 195(1)(b)(ii) of the Code is not applicable to casewhere forgery of the document was committed before thedocument was produced in court.”

2 (1996) 3 SCC 533

3 (1998) 2 SCC 493

A18. Finding the two conflicting views taken with regard to theinterpretation of Section 195 of the Cr.P.C., the question was referred tothe Constitution Bench of this Court in the case of Iqbal Singh Marwa(supra). It will be relevant to refer to paragraph 7 of the said judgment,which is as under:B“7. On plain reading clause (b)(ii) of sub-section (1) of Section195 is capable of two interpretations. One possible interpretationis that when an offence described in Section 463 or punishableunder Section 471, Section 475 or Section 476 IPC is alleged tohave been committed in respect of document which issubsequently produced or given in evidence in proceeding inCany Court, complaint by the Court would be necessary. Theother possible interpretation is that when document has beenproduced or given in evidence in proceeding in any Court andthereafter an offence described as aforesaid is committed inrespect thereof, complaint by the Court would be necessary.DOn this interpretation if the offence as described in the Section iscommitted prior to production or giving in evidence of the documentin Court, no complaint by Court would be necessary and privatecomplaint would be maintainable. The question which requiresconsideration is which of the two interpretations should be acceptedhaving regard to the scheme of the Act and object sought to beEachieved.”

19. After observing the aforesaid and considering the entire schemeunder Section 195 of the Cr.P.C., so also under Section 340 of the Cr.P.C.,this Court observed thus:

“33. In view of the discussion made above, we are of the opinionFthat Sachida Nand Singh has been correctly decided and the viewtaken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C.would be attracted only when the offences enumerated in thesaid provision have been committed with respect to documentafter it has been produced or given in evidence in proceeding inGany Court i.e. during the time when the document was in custodialegis.

34. In the present case, the will has been produced in the Courtsubsequently. It is nobody’s case that any offence as enumeratedin Section 195(1)(b)(ii) was committed in respect to the said willHafter it had been produced or filed in the Court of District Judge.

Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. wouldnot come into play and there is no embargo on the power of theCourt to take cognizance of the offence on the basis of thecomplaint filed by the respondents. The view taken by the learnedAdditional Sessions Judge and the High Court is perfectly correctand calls for no interference.”

20. It could thus clearly be seen that this Court, on unequal terms,has held that the view taken in the case of Sachida Nand Singh (supra)that Section 195(1)(b)(ii) of the Cr.P.C. would be attracted only whenthe offence enumerated in the said provision was committed in respectof document after it has been produced or filed in evidence duringproceedings before any Court, i.e. during the time when the document iscustodia legis. The Court has clearly held that, insofar as the Will whichis alleged to have been fabricated before it was produced in the Court,the embargo created by Section 195(1)(b)(ii) of Cr.P.C. would not comeinto play.21. It has been held that in such case, the Court will be entitledto take cognizance of the offence only on the basis of the complaintmade by the complainant.

22. In that view of the matter, we find that the view taken by theRevisional Court as well as the High Court is not sustainable.

23. The impugned judgment and order passed by the RevisionalCourt as well as the High Court are quashed and set aside.

24. The matter is remitted back forthwith to the learned JMFC,Ramtek for considering the complaint of the appellant on its own merits.

25. Taking into consideration that the litigation is pending for almosta decade, we request the learned JMFC to decide the complaint of theappellant on merits as expeditiously as possible and in any case within aperiod of one year from today.

26. We further make it clear that we may not be understood tohave expressed any opinion on merits and nothing observed herein shouldbe construed to have bearing on the merits of the matter.

27. The appeal is disposed of in the above terms.

28. Pending application(s), if any, stand(s) disposed of.

(Assisted by : Roopanshi Virang, LCRA)