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Bombay High Court
Prabhakar vs The State Of Maharashtra on 28 January, 2010
Bench: P. R. Borkar
                                       (1)




                                                                           
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD




                                                   
                 CRIMINAL WRIT PETITION NO. 849 OF 2009




                                                  
    Prabhakar s/o. Ramchandra Patki                         ..       Petitioner
    Age. 53 years, Occ. Service as Chief
    Officer, Municipal Council, Vengurla,
    Tal. Vengurla, Dist. Sindhudurg.




                                       
                          ig           Versus


    1.   The State of Maharashtra                           ..       Respondents
                        
    2.   Yadavrao s/o. Mukundrao Nemaniwar
         Age. 66 years, Occ. Business,
         R/o. Yelmapura, Tal. Kinwat,
         Dist. Nanded.
       


    Shri P.V. Mandlik, Sr. Advocate i/b. Adv. Shri A.S. Gandhi, 
    



    Advocate for the petitioner.
    Mrs. B.R. Khekale, A.P.P. for respondent No.1.
    Shri S.M. Vibhute, Advocate for respondent No.2.





                                             CORAM :        P.R. BORKAR,J.
                                             DATED :        28.01.2010

    ORAL JUDGMENT :-





1. This is a writ petition preferred by the original

accused/revision petitioner against whom the order of

issuance of process was passed by the learned Judicial

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Magistrate, First Class, Kinwat in S.C.C. No. 81 of 2008 for

committing offences punishable under sections 193 and 199 of

the Indian Penal Code (For short “I.P.C.”). Said order dated

01.08.2008 is further confirmed in Criminal Revision No. 163

of 2008 decided on 14.08.2009 by the Sessions Judge, Nanded.

2. Briefly stated facts giving rise to this petition

may be stated as below :-

. Present respondent No.2 – Yadavrao Nemaniwar was

the complainant. It is stated that the complainant/respondent

No.2 was Vice President of the Municipal Council, Kinwat;

whereas the petitioner/accused was working as a Chief Officer

of the Municipal Council, Kinwat between March, 2006 to

August, 2007. Thereafter, the petitioner was transferred as

Chief Officer to Vengurla, Dist. Sindhudurg. Regular Civil

Suit No. 48 of 2007 was filed by Samgayani – daughter of

Yadavrao Nemaniwar (complainant/respondent No.2) against the

present petitioner seeking perpetual injunction restraining

him from demolishing property of said Samgayani. The suit

was fixed on 26.07.2007 for filing written statement.

However, since the petitioner/defendant in that suit was

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absent, an order was passed to proceed the suit without

written statement. Thereafter, on 30.07.2007, the petitioner

filed application Exh.14 in Regular Civil Suit No. 48 of 2007

along with affidavit dated 30.07.2007 (Exh.15) stating

therein that on 26.07.2007, he could not file written

statement as he was at Aurangabad to attend High Court and

prayed for setting aside the order of proceeding the suit

without written statement passed on 26.07.2007. The Court

was pleased to set aside the order of proceeding the suit

without written statement. It is stated that the statement

that on 26.07.2007 the petitioner was at Aurangabad for

attending High Court, was a false statement and in the

circumstances he committed the offences.

3. The learned Magistrate recorded verification of

present respondent No.2 on 01.08.2008 and passed order as

follows :-

“The complainant has made out prima facie
case to issue process u/s 193 and 199 of IPC.
Hence issue process against accused u/s 193 & 199
of IPC.”

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4. Present petitioner filed Criminal Revision No. 163

of 2008 in the Sessions Court, Nanded, challenging the order

of issuance of process. The main challenge was that

respondent No.2 had no locus standi and cognizance could not

have been taken of the offence, as the complaint was not

filed as required by section 195 (1) (b) (i) of the Code of

Criminal Procedure (Cr.P.C). The learned Sessions Judge

relying upon case of Iqbal Singh Marwah and anr. V/s.

Meenakshi Marwah and ors, AIR 2005, S.C. 2119, rejected the

Criminal Revision. Against the same this writ petition is

filed.

5. Heard Sr. Advocate Shri P.V. Mandlik i/b. Adv. Shri

A.S. Gandhi for the petitioner, A.P.P. Mrs. B.R. Khekale for

respondent No.1/State and Adv. Shri S.M. Vibhute for

respondent No.2.

6. Rule. Rule made returnable forthwith. With

consent of the learned advocates appearing for the parties,

the matter is taken up for final hearing immediately.

7. In this case what is alleged is that in the

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application Exh.14 and affidavit Exh.15, copies of which are

enclosed with the petition, it is falsely mentioned by the

petitioner that on 26.07.2007, which was earlier date fixed,

he could not file written statement as he was at Aurangabad,

to attend High Court. According to respondent No.2, this was

false statement and therefore offences under sections 193 and

199 of the I.P.C. are committed. Order on application Exh.14

clearly shows that the Court was pleased to set aside the

order of “No W.S.” and written statement was accepted.

Section 193 and 199 of the I.P.C. are as follows:-

“S.193. Whoever intentionally gives false

evidence in any stage of a judicial proceeding, or
fabricates false evidence for the purpose of being

used in any stage of a judicial proceeding, shall
be punished with imprisonment of either description
for a term which may extend to seven years, and
shall also be liable to fine;

and whoever intentionally gives or
fabricates false evidence in any other case, shall
be punished with imprisonment of either description
for a term which may extent to three years, and
shall also be liable to fine.

S.199. Whoever, in any declaration made or
subscribed by him, which declaration any Court of
Justice, or any public servant or other person, is
bound or authorized by law to receive as evidence
of any fact, makes any statement which is false,
and which he either knows or believes to be false

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or does not believe to be true, touching any point
material to the object for which the declaration is

made or used shall be punished in the same manner
as if he gave false evidence.”

8. It is also argued by Sr. Adv. Shri Mandlik that in

this case, the stage was of acceptance of written statement

and no evidence was given or recorded. The affidavit was

just in support of Exh.14 and in strict sense it was not a

part of oral evidence or deposition and therefore section 193

of the I.P.C. is not attracted. It is not said that the

affidavit is not signed by the petitioner or the petitioner

signed the affidavit or application in the name of some one

else. It is not a case of giving false evidence or

fabricating false evidence. So, it is argued that section

193 of the I.P.C. is not attracted. I may refer to section

464 of I.P.C. and reproduce it for ready reference to show

that what is meant by making false document :-

“S.464. Making a false document. – A
person is said to make a false document or false
electronic record –

First.- Who dishonestly or fraudulently –

(a) makes, signs, seals or executes a
document or part of a document;

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(b) makes or transmit any electronic

record or part of any electronic record;

(c) affixes any electronic signature or
any electronic record;

(d) makes any mark denoting the execution
of a document or the authenticity of the electronic
signature, with the intention of causing it to be
believed that such document or part of document,
electronic record or electronic signature was made,

signed, sealed executed, transmitted or affixed by
or by the authority of a person by whom or by whose

authority he knows that it was not made, signed,
sealed, executed or affixed; or

Secondly – Who, without lawful authority,

dishonestly or fraudulently, by cancellation or
otherwise, alters a document or an electronic record
in any material part thereof, after it has been
made, executed or affixed with electronic signature
either by himself or by any other person, whether

such person be living or dead at the time of such
alteration; or

Thirdly – Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or
an electronic record to affix his electronic

signature or any electronic record knowing that such
person by reason of unsoundness of mind or
intoxication cannot, or that by reason of deception
practised upon him, he does not know the contents of
the document or electronic record or the nature of
the alteration.”

. So, it is argued and I agree that offence under

section 193 of I.P.C. is not made out.

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9. The learned advocate for respondent No.2 stated

that offence under section 199 of I.P.C. is committed because

false declaration was made in the affidavit that the

petitioner was at Aurangabad and therefore he could not file

written statement on 26.07.2007. As per section 199 of

I.P.C. the declaration made or subscribed to the accused is

to be received as evidence of any fact and in that angle the

affidavit was accepted in as much as the Court believed the

statement made by the petitioner that he had been to

Aurangabad on 26.07.2009 and as such was unable to file

written statement. So, prima facie we can say that there is

the material for issuing process for the offence punishable

under section 199 of I.P.C., though the petitioner is very

much disputing the allegation that it was false affidavit.

The main question is whether the Court could have taken

cognizance of offence punishable under section 193 or 199 of

I.P.C., in view of Section 195 of Cr.P.C.. I quote section

195 (1) of Cr.P.C., which is as under :-

“195 (1) No Court shall take cognizance –

(a) (i) of any offence punishable under
sections 172 to 188 (both inclusive) of the Indian
Penal Code
(45 of 1860), or

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(ii) of any abetment of, or attempt to
commit, such offence, or

(iii) of any criminal conspiracy to commit
such offence, except on the complaint in writing of
the public servant concerned or of some other public
servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under
any of the following sections of the Indian Penal
Code
(45 of 1860), namely, sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive)

and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in

any Court, or

(ii) of any offence described in section
463
, or punishable under section 471, section 475 or

section 476, of the said Code, when such offence is
alleged to have been committed in respect of a
document produced or given in evidence in a
proceeding in any Court, or

(iii) of any criminal conspiracy to
commit, or attempt to commit, or the abetment of,

any offence specified in sub-clause (i) or sub-
clause (ii),

except on the complaint in writing of that

Court or by such officer of the Court as that Court
may authorise in writing in this behalf, or of some
other Court to which that Court is subordinate. x x
x x x x x x”

10. The learned advocate for respondent No.2 Shri

Vibhute drew my attention to the case of Iqbal Singh Marwah

(Supra). In that case as para 2 indicates the Court was

called upon to resolve conflict of opinion between two

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decisions of the Supreme Court, each rendered by Bench of

three Judges in Surjit Singh V/s. Balbir singh, 1996 (3) SCC

533 and Sachida Nand Singh V/s. State of Bihar, 1998 (2) SCC

493, regarding interpretation of section 195 (1) (b) (ii) of

Cr.P.C. As stated in para 5 of Iqbal Singh Marwah (Supra)

the principal controversy revolves round the interpretation

of the expression ‘when such offence is alleged to have been

committed in respect of a document produced or given in

evidence in a proceeding in any court’ occurring in clause

(b) (ii) of sub-section (1) of section 195 Cr.P.C.

11. In the case of Surjit Singh (Supra) it is observed

that for taking cognizance of an offence, the document, the

foundation of forgery, if produced before the Court or given

in evidence, the bar of taking cognizance under section 195

(1) (b) (ii) gets attracted and the criminal court is

prohibited from taking cognizance of offence unless a

complaint in writing is filed as per the procedure prescribed

under section 340 of the Code by or on behalf of the Court.

The object thereby is to preserve purity of the

administration of justice and to allow the parties to adduce

evidence in proof of certain documents without being

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compelled or intimidated to proceed with the judicial

process.

12. In the case of Sachida Nand Singh (Supra), scope

envisaged by section 340 (1) of the Code to ascertain whether

any offence affecting administration of justice has been

committed in respect of a document produced in Court or given

in evidence in a proceeding in that Court. In other words,

the offence should have been committed during the time when

the document was in custodia legis. In para 6 of the said

case following observations are made :-

“6. On a plain reading clause (b)(ii) of

sub-section (1) of Section 195 is capable of two
interpretations. One possible interpretation is
that when an offence described in Section 463 or
punishable under Section 471, Section 475 or

Section 476 IPC is alleged to have been committed
in respect of a document which is subsequently
produced or given in evidence in a proceeding in
any Court, a complaint by the Court would be
necessary. The other possible interpretation is
that when a document has been produced or given in

evidence in a proceeding in any Court and
thereafter an offence described as aforesaid is
committed in respect thereof, a complaint by the
Court would be necessary. On this interpretation if
the offence as described in the Section is
committed prior to production or giving in evidence
of the document in Court, no complaint by Court
would be necessary and a private complaint would be

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maintainable. The question which requires
consideration is which of the two interpretations

should be accepted having regard to the scheme of
the Act and object sought to be achieved.”

13. After considering the entire position including

earlier case-laws, the Supreme Court observed in para 25 of

the said case as under:-

“25. In view of the discussion made

above, we are of the opinion that Sachida Nand
Singh has been correctly decided and the view taken
therein is the correct view. Section 195(1)(b)(ii)
Cr.P.C. would be attracted only when the offences

enumerated in the said provision have been
committed with respect to a document after it has
been produced or given in evidence in a proceeding
in any Court i.e. during the time when the document
was in custodia legis.”

. Thus it is abundantly clear from above said

discussion that the Court was discussing and interpreting

section 195 (1) (b) (ii), particularly phrase ‘when such

offence is alleged to have been committed in respect of a

document produced or given in evidence in a proceeding in any

court’.

14. The learned advocate Shri Vibhute argued that in

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this case the affidavit was prepared and then filed in the

Court and therefore there is no bar in view of law laid down

in the case of Iqbal Singh Marwah (Supra). Same line of

argument was accepted by the learned Sessions Judge, Nanded

in his judgment. If we consider section 195 (1) (b) (i),

which is reproduced earlier, we do not find phrase ‘when such

offence is alleged to have been committed in respect of a

document produced or given in evidence in a proceeding in any

court’. It says that no Court shall take cognizance of any

offence punishable under section 193 to 196, 199, 200, 205 to

211 (both inclusive) and 228, 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 that Court

or by such officer of the Court as the Court may authorise in

writing in this behalf or of some other Court to which that

Court is sub-ordinate. In this case, question is not when

the affidavit was signed or completed, question is not when

the application was signed, whether it was signed inside the

Court or outside the Court. Since the application Exh.14 and

affidavit Exh.15 are filed in civil proceedings and it is

alleged that the offence is committed in or in relation to

making false statement during the course of civil

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proceedings, in my considered opinion, bar of section 195 (1)

(b) (i) of Cr.P.C. is attracted and therefore this writ

petition must succeed.

15. In the result, the order of issuance of process

passed by the Judicial Magistrate, First Class, Nanded, on

01.08.2008 in S.C.C. No. 81 of 2008 is hereby quashed and set

aside. Similarly, the order passed by the Sessions Court in

Criminal Revision No. 163 of 2008 dated 14.08.2009 stands set

aside.

16. The Criminal Writ petition is accordingly allowed

and rule made absolute.

[P.R. BORKAR,J.]

snk/2010/JAN10/crwp849.09

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