JUDGMENT
Rajesh Balia, J.
1. The brief facts giving rise to the Revision petition are that the petitioner filed a suit for specific performance of a contract dated 26.6.1989 and dated 5.1.1991. in the court of Addl. District Judge No. 2, Hanumangarh, which is suit No. 66/92. The respondents had lodged FIRs on 6.9.1991 bearing No. 203/91 and the FIR No. 270/91 dated 7.11.1991. The FIRs were lodged by Hardyal and Khayaliram respectively alleging that the present petitioner plaintiff had forged Agreement to Sale by purchasing the stamps and getting the thumb impression of Hardyal on the blank stamps. The original documents have already been produced in the present suit alongwith the plaint.
2. Thereafter, on an application moved by the Investigating Officer of the Police Station, Tibi, the court has ordered for handing over the original documents to the Investigating Officer for the purpose of investigating into alleged incidents mentioned in the two FIRs. It is this order dated 15.10.1992 passed by the Addl. District Judge No. 2, Hanumangarh, which in subject matter of this Revision.
3. It is contended by learned Counsel for the petitioner that the trial court could not have delivered the original document to the Investigating Agency, in as much as, no investigation into the genuineness or otherwise, of the document which has been produced in the civil court could have been proceeded with, in view of provisions of Section 195, Cr.P.C. read with Section 340 Cr.P.C. for offences under Sections 465, 467, 469 and 471 I.P.C. He further contends that while ordering delivery of original documents, to the Police, the court has not taken any care to safe guard the interest of the petitioner against possible interpolation into the original document by the investigating agency or the interested party once they go out of the custody of the court. The court has rather asked the petitioner to obtain photo copies, if he so desires. He places reliance on a decision of this Court in Dharamchand v. the State of Rajasthan 1985 RLW 239.
4. Having carefully considered the contention raised before me and perused the order under Revision, I am of the opinion, that the contentions of the learned Counsel for the petitioner are well founded. Firstly, the original documents which are foundation of the suit before the civil court and were produced along with the plaint, could not have been delivered out side the custody of the court, without keeping a certified copy of the same on record. That is the usual procedure when the original documents are returned to the party concerned or are delivered to any other agency. It may be noticed that the documents were not being sent to the investigating agency as part of record transmitted from one official custody to another official custody.
5. In Dharamchand’s case (supra), this Court has held that no court will be able to take cognizance of the offences under Sections 465, 467, 469 and 471, I.P.C. in respect of documents produced in the court, unless the complaint is filed by the court, before which the forged documents have been produced. The Court further went on to hold that in such cases, the investigation also cannot be allowed to continue and, the impugned investigation was quashed.
6. It was contended by learned Counsel for the respondents that the view taken in Dharam Chand’s case (supra) does not lay down the law correctly and is contrary to the view taken by their Lordships of Supreme Court in Patel Lalji Bhai Somabhai v. State of Gujarat AIR 1971 SC 1985. According to him, bar of Section 195, Cr.P.C. against taking of cognizance by a court, except on a complaint filed before a court in which the document has been produced, applies only to cases where the document has been forged or fabricated after the filing of a civil suit. In this connection, it will be suffice to say that the decision in Patel Laljibhai’s case (supra) was rendered under the old Code of Criminal Procedure. Since the commencement of the Code of Criminal Procedure, 1973, there has been substantial change in the provisions of Section 195 and, the decision in Dharamchand’s case (supra) is based on the provisions of new Code, following the decision of Supreme Court, in Gopal Krishna Menon v. D. Raja Reddy and anr. reported in 1983 SCC (Cr.) 822. In that view of the matter, the decision in Dharamchand’s case (supra) being of this Court, directly on the point, is binding on the sub ordinate court as well as a Bench of co ordinate jurisdiction. Since the issue is not directly arising for consideration before me whether the proceedings under the Code of Criminal Procedure are valid or not?, I am not expressing any opinion on an the issue. Suffice it for the present purpose, to say, the order under Revision cannot be sustained, in view of aforesaid judgment in Dharamchand’s case, in which it was held:
…that even if the document is alleged to have been forged before the commencement of the proceedings in the court, the bar contained in Section 195(1)(b)(ii) shall apply if the document has already been filed in a court before the cognizance of an offence referred to in this section is taken by the criminal court….
7. In view of aforesaid, I am of the opinion that the trial court has committed illegality and has acted with material irregularity in exercise of its jurisdiction in transmitting the original documents to the Police agency for carrying on investigation in respect of genuineness of the document in question.
8. The revision is allowed and the order passed by the Addl. District Judge, No. 2, Hanumangarh dated 15.10.1992 is set aside.
9. There will be no order as to costs of this Revision.