Hiralal Yadav And Ors. vs State Of Bihar And Anr. on 19 March, 1976

Patna High Court
Hiralal Yadav And Ors. vs State Of Bihar And Anr. on 19 March, 1976
Equivalent citations: 1977 CriLJ 36
Author: N P Singh
Bench: N P Singh


ORDER

Nagendra Prasad Singh, J.

1. This is an application under Section 561-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as the ‘Code of 1898’) for quashing an order, dated the 23rd July, 1973, passed by the learned Sub-divisional Magistrate, Banka, holding that there was sufficient ground for proceeding against the petitioners under Sections 466, 109 and 120-B of the Indian Penal Code.

2. It appears that, on the 21st May, 1973 a petition of complaint was filed by the complainant -opposite party No. 2 before the learned Sub-Divisional Magistrate against these petitioners, along with two others, alleging, inter alia, that the complainant has got a shop dealing in electrical goods, including fans etc. In the said shop, petitioner No. 7 Ramchander Keshri was appointed as an employee and used to take care of the same. On the 1st May, 1973, when the complainant went to his shop, he found Rupees 5,162.00 missing. The key of the said shop was with petitioner No. 7. The complainant lodged a first information report on the 2nd May, 1973, which was numbered as Rajauna P.S. Case No. 1 (5) 73, It was further stated that, on the 8th May, 1973, the said Ramchander Keshri surrendered in the Court of the Sub-Divisional Magistrate and made a prayer for bail. In course of arguments on behalf of the said accused it was asserted that he was a partner of the said shop; but in support of the said contention, no document was produced. On the 9th May, 1973, however, the said accused Ramchander Keshri, in collusion and conspiracy with the other accused persons got forged and concocted a case before Moramma-Bangaon Gram Cutcherry by bringing into existence a false and forged petition of complaint and statement on solemn affirmation alleged to have been filed and made on behalf of accused Ramchander Keshri. According to the complaint, the said Ramchander Keshri had neither signed the petition of complaint nor was he examined on solemn affirmation. It is said that the signature below the statement on solemn affirmation is not that of Ramchander Keshri, although it purported to be his. The Gram Cutcherry case bore number 2 of 1973. According to the complainant , all these records had been forged and manipulated to prepare a defence that accused Ramchander Keshri was a partner of his shop.

3. The learned Sub-divisional Magistrate, after examining the complainant on solemn affirmation, sent the petition of complaint for inquiry, (JANCH) to the Inspector of Police, Banka. In due course, a report was submitted by the Inspector of Police to the learned Sub-Divisional Magistrate saying that a prima facie case under Sections 466, 109 and 120-B of the Indian Penal Code had been made out. The said inquiry report was placed before the Sub-divisional Magistrate on the 23rd July, 1973, on which date, after a perusal of the report in question, the learned Sub-divisional Magistrate passed the impugned order saying that a case had been made out for proceeding against the accused persons under Sections 466, 109 and 120-B of the Penal Code.

4. Learned Counsel for the petitioners has submitted that the order holding that a prima facie had been made out against the petitioners is vitiated due to contravention of several provisions of the Code of 1898. Learned Counsel has, firstly, submitted that the accused-petitioners are alleged to have entered into a conspiracy to commit an offence under Section 466 of the Penal Code which is non-cognizable offence; and, in view of Sub-section (2) of Section 196-A of the Code of 1898, no cognizance could have been taken of an offence punishable under Section 120-B of the Penal Code without the prior consent in writing having been given by the State Government or the District Magistrate empowered in that behalf by the State Government. Subsection (2) of Section 196-A is a bar on the power of the Criminal Courts of taking cognizance of the offence of criminal conspiracy punishable under Section 120-B of the Penal Code, in a case where the object of the conspiracy is to commit any non-cognizable offence, without there being a prior consent in writing by the authorities referred to above. Admittedly, no such sanction has been accorded. In that view of the matter, it has to be held that the order taking cognizance of the offence punishable under Section 120-B of the Penal Code is illegal. It is well settled that, wherever a bar has been placed on the power of the Criminal Courts in the matter of taking cognizance, the said bar has to be removed by grant of the necessary sanction after which the ordinary Criminal Courts get jurisdiction to proceed with the matter. The question for consideration, however, remains as to whether in the circumstance of the instant case, the whole order is liable to be quashed, or it has to be upheld so far as the offences under Sections 466 and 109 of the Penal Code are concerned. I have already pointed out that in the petition of complaint also there was a specific allegation regarding an offence under Section 466 saying that these accused-petitioners had forged documents purporting to be the record or proceeding of the Gram Cutcherry which is a Court, which is an offence punishable under Section 466. From the inquiry report submitted by the Inspector of Police (Annexure “2”) also it appears that the case of the prosecution is that till the 8th May, 1973, no such case instituted by petitioner No. 7 Ramchander Keshri was pending before the said Gram Cutcherry and actually on the 9th May, 1973, these documents were forged and fabricated to show that a case had been instituted on the 29-4-1973, by Ramchander Keshri and this was done by Ramchander Keshri along with petitioner No. 1, the Sarpanch, and petitioner No. 2, the Up-Sarpanch, of the said Gram Cutcherry, According to the prosecution case, those documents do not bear the genuine signature of accused Ramchander Keshri and they have been brought into existence in order to create a defence for petitioner No. 7 in connection with the case which the complainant had lodged before the Police. In my opinion, it is not one of those cases where an accused is being prosecuted only for an offence under Section 120-B of the Penal Code and Section 196-A(2) of the Code is a bar to the initiation of such a case. The case, so far as the offences under Sections 466 and 109 of the Indian Penal Code are concerned, can proceed even without sanction, as required by Sub-section (2) of Section 196-A of the Code. I am supported in this view by a decision of the Supreme Court in Madan Lal v. The State of Punjab , where a similar question was examined and it was pointed out that, if an accused person is charged only with conspiracy, any order taking cognizance is bad in law; but if an accused person is charged with other offences, including one under Section 120-B of the Penal Code, then his trial in connection with the other offences is not hit by the provisions of Sub-section (2) of Section 196-A of the Code. In that case, the accused concerned had been charged with offences under Sections 120-B, 409 and 477-A of the Penal Code. The offences under Sections 409 and 477-A were alleged to have been committed in pursuance of conspiracy. Still it was held that, so far as the trial of the accused for offences other than 120-B was concerned, was not vitiated.

5. It was next submitted by learned Counsel for the petitioners that the prosecution against the petitioners has been launched in contravention of Section 195(1)(c) of the Code. Section 195(1)(c) read as follows:

195 (1) No Court shall take cognizance-

(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 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.

According to learned Counsel, when this clause speaks of an offence under Section 463, it will also include an offence under Section 466 of the Penal Code, and as such, the prosecution has to be initiated only on a complaint in writing filed by such Court or some other Court to which such Court is subordinate. In my opinion, it is difficult to accept this contention. From a bare reference to Clause (c) of Section 195(1), it is apparent that no Court shall take cognizance of any offence described in Section 463 of the Penal Code or punishable under Section 471, or Section 475, or Section 476 of the Penal 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”. In the instant case, there is no allegation that any forgery was committed by a party to a proceeding in any Court in respect of a document produced or given in evidence. According to the prosecution case, these accused persons, in order to help petitioner No. 7, have forged and fabricated the records of the case showing that petitioner No. 7 had filed a case before the Gram Cut-cherry on the 29th April, 1973, although no such case had been filed till the 8th May, 1973. In my opinion, Clause (c) of Sub-section (1) of Section 195 of the Code is not at all attracted, and the complaint in question need not have been filed by the Court concerned or by a Court to which such Court was subordinate. In the instant case, even the Presiding Officers of the said Gram Cutcherry are accused, namely, the Sarpanch and the Up-Sarpanch.

6. It was then submitted that the inquiry report submitted by the Inspector of Police has mentioned about some confidential inquiry (GUPT JANCH), which was not permissible, and, as such, the learned Sub-divisional Magistrate should not have acted on the said inquiry report. In my opinion, there is no substance in the contention of the learned Counsel on this account also. The Inspector of Police, to whom the inquiry had been entrusted, had referred to the statements of some witnesses in connection with the case and then towards the end he has stated that, in the aforesaid circumstances, from open and confidential inquiry, he had come to the conclusion that the aforesaid Gram Cutcherry Case No. 2 of 1973 had been registered after petitioner No. 7 was taken in custody in connection with the case lodged by the complainant, for the purpose of helping petitioner No. 7, and all the accused persons were involved in the same. Merely because the Inspector has mentioned about confidential inquiry, it cannot be said that he has used some extraneous matters.

7. It was also submitted on behalf of petitioners 1 and 2, who are the Sarpanch and the Up-Sarpanch of the Gram Cutcherry, that their prosecution, in absence of previous sanction of the State Government, is hit by Section 84-A of the Bihar Panchayat Raj Act, 1947 (hereinafter referred to as the ‘Act’), Section 94 of the Act prescribes that when the Mukhiya, the Up-Mukhiya, the Sarpanch or the Up-Sarpanch of a Gram Cutcherry and certain other authorities mentioned in the said section are accused of any offence “alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of the offence except with the previous sanction of the Government or such other authority as may be prescribed”. According to learned Counsel appearing for the petitioners, petitioners 1 and 2 were acting in discharge of their official duties while they are alleged to have committed the offence. In my opinion, it is difficult to accept this contention. By no stretch of imagination, it can be said that there is any nexus between the offence alleged and the official duties assigned to these two petitioners. The Sarpanch and the Up-Sarpanch, while they are being charged with having manufactured and forged documents in connection with a case, cannot be said to have been acting or purporting to act in discharge of their official duties.

8. Lastly it was submitted that, if the trial cannot proceed so far as the offence under Section 120-B of the Indian Penal Code is concerned, there is no evidence on record to establish that these petitioners, or any one of them, had committed offences under Sections 466 and 109 of the Penal Code; and, in that view of the matter, the prosecution of the petitioners will amount to an abuse of the process of the Court. In my opinion, merely because these petitioners cannot be charged with the offence under Section 120-B, it cannot be said that ipso facto their trial for the other offences is illegal and without jurisdiction. The question would arise after evidence is adduced on behalf of the complainant . If, on the evidence adduced, no case is disclosed against these petitioners or any one of them, it will be always open to the Court concerned to pass appropriate orders in that connection, including an order of discharge in accordance with Section 245 of the Code of Criminal Procedure, 1973, which will be applicable when the matter goes to trial. If, upon taking all the evidence referred to in Section 244 of the Code of 1973, the Court concerned is of the opinion that no case against these accused presons or anyone of them is made out, it will be certainly open to it to pass an order in accordance with law. But, in my opinion, it is not advisable for this Court at this stage to pass an order saying as to against which of the accused persons the offences under Sections 466 and 109 of the Penal Code are made out or not.

9. In the result, the application is allowed in part inasmuch as the order taking cognizance under Section 120-E of the Penal Code is quashed and it will be deemed that the learned Magistrate had summoned these accused persons only under Section 466, read with Section 109, of the Penal Code. An offence under Section 466 of the Penal Code is triable by a First Class Magistrate under the Code of 1973, and I direct that the said learned Magistrate shall proceed with the trial of the case in accordance with law in the light pf the observations made above.

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