Bar On Cognizance U/S 195(1)(b)(ii) CrPC Not Attracted When Forgery Took Place Outside Court, Before Producing Document As Evidence: Gujarat HC
The Gujarat High Court has held that the bar of Section 195(1)(b)(ii) of 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'.Section 195(1)(b)(ii) provides that no Court...
The Gujarat High Court has held that the bar of Section 195(1)(b)(ii) of 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'.
Section 195(1)(b)(ii) provides that no Court shall take cognizance of offences of Forgery, etc. 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.
Justice Nikhil Kariel clarified that where the offence was committed outside of Court, before presenting the document in evidence, the bar on taking cognizance of a private complaint will not get attracted.
The Single-judge Bench relied on the case of Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Anr. where the Supreme Court held that Section 195 operates as "a sort of exception" to the general provision of cognizance under Section 190 CrPC and creates an embargo on Courts from taking cognizance of certain types of offences including forgery of documents and affidavits. However, this exception operates only when the forged documents are in custodia legis ie, in the custody of the Court.
The Bench was hearing Petitioner's challenge to an order passed by the Additional Sessions Judge whereby the Court had set aside an order issuing process against the Respondents No. 1 and 2 for offences under Sections 181, 193, 196, 199, 200, 209, 471 read with Section 114 of the IPC.
The Respondents No. 1 and 2 had preferred a suit challenging a registered sale deed of 2010 by the Defendant No. 1 in favour of Defendant No. 2. The Petitioner herein, meanwhile, averred that the Respondents No. 1 and 2 had prepared a false affidavit showing a pedigree chart wherein the Petitioner's mother and himself were shown as having died while he was alive. After the submission of the Investigating Officer's report examining these allegations, process was initiated against the Respondents.
The Respondents challenged this allegation in a Revision Application wherein it was contested that under Section 195(1)(b)(ii) of CrPC, the Court could not take cognizance of an offence prescribed in Section 463 or punishable under Section 471. Further, the complaint was of a private nature, the Magistrate ought not to have taken cognizance. The Revision was allowed. Hence, the instant proceedings.
The Petitioners claimed that the bar of Section 195(1)(b)(ii) operated only when the document produced is stated to be forged during Court proceedings. However, in the instant case, the affidavit of forged pedigree was clearly prepared much earlier than the filing of the Civil Suit.
The Bench recognised that the only issue worth resolving is whether the order of the Revisional Court setting aside the interim order passed by the Magistrate taking cognizance and issuing process required the High Court's interference. To address this question, Justice Kariel pointed out that the civil suit was filed basis the forged affidavit. It observed:
"It is not the case of the present petitioner, nor is it the case of the respondents No.1 and 2 that the alleged forgery was done when the document was in the custody of the Court. Under such circumstances, in the considered opinion of this Court, relying upon the law laid down by the Hon'ble Apex Court in case of Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Anr. (supra) as referred to herein above, the bar of Section 195(1)(b)(ii) of Cr.P.C. would not be applicable in the instant case."
Accordingly, the petition was allowed and it was directed that the proceedings before the Magistrate be revived.
Case Title: BHUPATBHAI PUJABHAI BHOI Versus HIRABEN WO SOMAJI BHOI & 2 other(s)
Case No.: R/SCR.A/2522/2013