Code of Criminal Procedure, 1973: s. 195(1)(b)(ii) – Prosecution under, for offence alleged to have been committed in respect of document produced or given in evidence in a proceeding in any court – On facts, application u/s. 195(1)(b)(ii) by appellant making allegations against respondent-counsel for the opposite party, that he committed offence in verifying and forging thumb impression of dead appellant – Order of District and Sessions Judge directing for filing a complaint u/s. 195(1)(b)(ii) – Set aside by the High Court – On appeal, held: Where offences has already been committed earlier and later on the document is produced or given in the evidence in Court, the same is neither covered under Clauses (a), (b)(i) or (b) (ii) – On facts, the High Court rightly held that instant case is not where any complaint could have been proceeded u/s. 195(1)(b)(ii).
Dismissing the appeal, the Court
HELD: 1.1 Appeal No. 91 of 2004 was filed by several appellants, out of which one of the appellants was SMV, who died on 02.03.2005. The application for withdrawal of the appeal was filed on 18.07.2006. One of the respondents before the High Court, took it upon herself to say that the thumb impression, which was put as of ‘SMV’ was put by her, since her husband ‘SMV’ also used to sign along with her, in good faith, she put her thumb impression. The respondent came with the case that he having been informed that talks of settlement amongst the Gaonkars is going on and they are intending to withdraw the execution application filed by them. He, as per instructions of his client, drafted and handed over the application for withdrawing the Appeal No. 91 of 2004 to one SK to obtain the signatures of the remaining respondents. He further came with the case that he was not aware of death of SMV or alleged forged thumb impression of SMV on the application. The facts fairly indicate that the application when it was presented in the Court in Appeal No. 91 of 2004 for withdrawal of the appeal, signatures/thumb impressions of the appellants were already obtained on the said application, which was handed over to the respondent in this appeal for filing in the Court. On the same date, i.e., 18.07.2006, the Court allowed the application permitting withdrawal of the appeal. A Criminal Misc. Application No. 95 of 2007 for initiating action under Section 195(1)(b)(ii) of Cr.P.C. was filed by the appellant after the said withdrawal of the appeal. The application was allowed by the District Judge where the District Judge had directed for inquiry to be conducted in terms of Section 195(1)(b)(ii) of Cr.P.C. [Paras 7-9] [109-A-B, D]
1.2 The submission raised by the appellant is rejected due to the reason that before the Session Court as well as before the High Court, the appellant has alleged an offence under Section 195(1)(b)(ii). In the Application No. 95 of 2007 prayer was for complaint to be made as per the provisions contemplated under Section 195(1)(b)(ii) of Cr.P.C. Even the order of District Judge, which was the basis in favour of the appellant on 31.07.2008 has also directed for inquiry and initiating complaint in terms of Section 195(1)(b)(ii) of Cr.P.C. There being specific case of the appellant in his complaint as well as in order passed by the District Judge in his favour, it is not open for the appellant to turn round and claim that allegations are covered under Section 195(1)(b)(i). The Constitution Bench in Iqbval Singh Marwah elaborately noticing the statutory scheme under Section 195 has held that where offences has already been committed earlier and later on the document is produced or given in the evidence in Court, the same is neither covered under Clauses (a), (b)(i) or (b) (ii). [Para 15] [112-B-E]
1.3 The execution application, which was filed by the decree holder was also withdrawn. The appeal, which was filed by judgment debtor was withdrawn by judgment debtor, which in no manner had impaired the interest of the appellant, who was legal heir of decree holder. It is also on the record that legal heirs of the decree holders have also withdrawn their execution application, which has attained finality. None of the appellants, who had filed Appeal No.91 of 2004 before the High Court has initiated any proceeding against the instant respondent who was their advocate. It is only the appellant, who was respondent in Appeal No.91 of 2004 has filed a complaint under Section 195. The High Court having taken into consideration entire facts and circumstances have rightly come to the conclusion that present is not a case where any complaint could have been proceeded under Section 195(1)(b)(ii) Cr. P.C. [Para 16] [113-F-H]
Iqbal Singh Marwah & Anr. v.. Meenakshi Marwah & Anr. [2005] 2 SCR 708 : (2005) 4 SCC 370 –followed.
Sachida Nand Singh & Anr. v.. State of Bihar & Anr. [1998] 1 SCR 492 : (1998) 2 SCC 493 ; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. [2005] 2 SCR 708 : (2005) 4 SCC 370 ; Sachida Nand Singh & Anr. v.. State of Bihar & Anr., [1998] 1 SCR 492 : (1998)
2 SCC 493 ; Surjit Singh & Ors. v.. Balbir Singh [1996] 3 SCR 70 : (1996) 3 SCC 533 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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