Sec.468 and 471 of I.P.C. - sec.195 r/w sec.340 of Cr.P.C.- submitting fake and forged salary certificate for standing as surety to give bail to the accused - Magistrate issued a memo to the SHO - who registered complaint - with out following the procedure under sec.195 and sec.340 of Cr.P.C.- four steps namely; 1. conducting a preliminary enquiry, 2.recording a finding to that effect, 3.preparing a complaint in writing and 4.send that complaint to a Magistrate of First Class having jurisdiction, taking sufficient security for appearance of the accused and bind over any person to appear to give evidence to any such Magistrate,- Hence the entire trial and conviction of the accused is set aside by their Lordships of High court = Setti China Venkata Rao....Petitioner. The State of Andhra Pradesh, Rep by its Public Prosecutor,High Court of A.P., Hyderabad. .... Respondent. = 2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10941
Sec.468 and 471 of I.P.C. - sec.195 r/w sec.340 of Cr.P.C.- submitting fake and forged salary certificate for standing as surety to give bail to the accused - Magistrate issued a memo to the SHO - who registered complaint - with out following the procedure under sec.195 and sec.340 of Cr.P.C.- four steps namely; 1. conducting a preliminary enquiry, 2.recording a finding to that effect, 3.preparing a complaint in writing and 4.send that complaint to a Magistrate of First Class having jurisdiction, taking sufficient security for appearance of the accused and bind over any person to appear to give evidence to any such Magistrate,- Hence the entire trial and conviction of the accused is set aside by their Lordships of High court =
Sub-Inspector of Police, Gajuwaka Law & Order Police Station filed charge sheet
against the revision petitioner alleging that revision petitioner produced a
forged salary certificate along with identity card before VIII Metropolitan
Magistrate, Gajuwaka while standing as surety for an accused by name one P.
Srinivasa Rao in Crime No.58/2002 of Gajuwaka Law & Order Police Station and the
learned Magistrate forwarded accused along with forged salary certificate for
investigation and the investigation revealed that accused committed offences
under Sections 468 & 471 IPC. =
"VIII Metropolitan Magistrate Court,
Visakhapatnam at Gajuwaka, Dt.2.3.2002.
M E M O
Sub:- Registered a case against S. Ch. V. Rao and
Investigate -Reg.
The S.H.O., Gajuwaka L&O PS., is hereby directed to Register a case against
S.Ch.V.Rao, who is forwarded through P.C.1663 of Gajuwaka L&O P.S., as the
individual produced forged Salary Certificate of Depot Manager, APSRTC,
Visakhapatnam Steel City for the release of P. Srinivasa Rao forwarding Salary
Certificate with identity card originals with zerox of identity card for
investigation and submit the FIR on or before 13.3.2002 and investigate the
matter.
VIII METROPOLITAN MAGISTRATE,
VISAKHATAPATNAM AT GAJUWAKA.
Encl:- Zerox copy of identity
Card originals of identity
Card and salary certificate of
S.Ch. Rao.
To
The S.H.O.,
Gajuwaka Law & Order P.S.,
Gajuwaka."
10. According to Advocate for revision petitioner, a reading of above memo
would disclose that it cannot be termed as complaint and it is only an order of
P.W.1 to the S.H.O.
As seen from Ex.P1-memo, police appears to have treated this as a compliant and
registered F.I.R on the basis of this memo.
Now the other contention of
Advocate for the revision petitioner is that the Court has to follow Section 340
Cr.P.C for giving a complaint in respect of cases mentioned in Section 195
Cr.P.C.
A reading of this Section would show that
when an offence referred in
Section 195 (1) (b) has been committed in or in relation to a proceeding in a
Court, the Court after preliminary enquiry, if any, record a finding to that
effect, make a complaint thereof in writing, send it to a Magistrate of First
Class having jurisdiction take sufficient security for appearance of the accused
before such Magistrate and bind over any person to appear and give evidence
before such Magistrate.
Now according to Advocate for revision petitioner, when
P.W.1 noticed that revision petitioner has produced a fake and false document,
he should have followed these
four steps namely;
conducting a preliminary
enquiry,
recording a finding to that effect,
preparing a complaint in writing
and
send that complaint to a Magistrate of First Class having jurisdiction,
taking sufficient security for appearance of the accused and bind over any
person to appear to give evidence to any such Magistrate, but the learned
Magistrate i.e., P.W.1 has not followed this procedure and simply issued a memo
to the S.H.O and therefore the entire procedure followed by the Magistrate is
incorrect.
Learned Advocate for revision petitioner relied on a decision of
Supreme Court reported in M.S. AHLWAT v. STATE OF HARYANA AND ANOHTER1 for the
proposition that provisions of Section 195 Cr.P.C are mandatory and no Court has
jurisdiction to take cognizance of any of the offences mentioned therein, unless
there is a complaint in writing as required under that Section.
As rightly
pointed out by the learned Advocate for revision petitioner this Ex.P1 cannot
be treated as a complaint under Section 195 Cr.P.C as P.W.1 has not followed the
procedure contemplated under Section 340 Cr.P.C.
In the above referred Supreme
Court decision, when a forgery is committed before the Hon'ble Supreme Court
while the Hon'ble Court noticed that the petitioner filed affidavit with forged
signature and false statement at different stages, he was punished by the
Hon'ble Supreme Court by issuing a show cause notice, which was held as without
jurisdiction. The Hon'ble Supreme Court observed that they ought to have
followed procedure under Sections 195 Cr.P.C and 340 Cr.P.C and on that ground,
conviction imposed by the Supreme Court against the petitioner therein is set
aside by a Three Judges' Bench.
In that decision, it is held "provisions of Section 195 Cr.P.C are mandatory and
no Court has jurisdiction to take cognizance of any of the offences mentioned
therein unless there is a compliant in writing as required under that Section.
It is settled law that every incorrect or false statement does not make it
incumbent upon the Court to order prosecution, but requires the Court to
exercise judicial discretion to order prosecution only in the larger interest of
the administration of justice. Section 340 Cr.P.C prescribes the procedure has
to how a complaint may be preferred under Section 195 Cr.P.C. A compliant out
side the provisions of Section 340 Cr.P.C cannot be filed by any civil, revenue
or criminal Court under its inherent jurisdiction."
11 From the above observations of the Hon'ble Supreme Court, it is very clear
that a complaint out side the purview of Section 340 Cr.P.C cannot be filed by
any Court. So here admittedly, P.W.1 has not followed the procedure
contemplated under Sections 340 Cr.P.C., to give a compliant in respect of the
offence alleged against revision petitioner. When the Hon'ble Supreme Court in
respect of an offence committed before that Court is pleased to set aside the
punishment given in respect of an accused person for not following the procedure
under Sections 195 and 340 Cr.P.C., by the Hon'ble Supreme Court, there cannot
be any exemption to deviate the procedure by any other Court. So as rightly
pointed out by the learned Advocate for revision petitioner as P.W.1 has not
followed the procedure under Section 340 Cr.P.C the cognizance taken by Court
below against the revision petitioner without a complaint under Section 195
Cr.P.C., the entire proceedings have to be treated that they are not in
accordance with law as such illegal.
12 For these reasons, I am of the view that conviction against the revision
petitioner recorded by the trial Court and upheld by the appellate Court has to
be set aside for non- compliance of Sections 195 and 340 Cr.P.C.
13. In the result, the Criminal Revision Case is allowed by setting aside
the conviction and sentence imposed against the revision petitioner for the
offence under Sections 468 & 471 IPC and he is acquitted of the said charge. His
bail bonds shall stand cancelled and fine amount, if any, paid by the revision
petitioner shall be refunded.
14 As a sequel, miscellaneous petitions if any pending in this Criminal
Revision Case shall stand disposed of.
2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10941
THE HON'BLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL REVISION CASE No.1869 of 2006
21-02-2014
Setti China Venkata Rao....Petitioner.
The State of Andhra Pradesh, Rep by its Public Prosecutor,High Court of A.P.,
Hyderabad. .... Respondent.
Counsel for the Petitioner: Sri K. Kamalakar
Counsel for Respondent: Public Prosecutor
<Gist :
>Head Note:
?Cases referred:
1 (2000) 1 Supreme Court Cases 278
THE HON'BLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL REVISION CASE No.1869 of 2006
Date:21.02.2014
JUDGMENT:
This revision is preferred against Judgement dated
08-11-2006 in Crl.A.No.96/2004 on the file of I Additional Metropolitan Sessions
Judge, Visakhapatnam whereunder judgment dated 02-08-2004 in C.C.No.520/2002 on
the file of II Additional Chief Metropolitan Magistrate, Visakhapatnam (formerly
V Metropolitan Magistrate, Visakhapatnam) was confirmed.
2. Brief facts leading to filing of this revision are as follows:-
Sub-Inspector of Police, Gajuwaka Law & Order Police Station filed charge sheet
against the revision petitioner alleging that revision petitioner produced a
forged salary certificate along with identity card before VIII Metropolitan
Magistrate, Gajuwaka while standing as surety for an accused by name one P.
Srinivasa Rao in Crime No.58/2002 of Gajuwaka Law & Order Police Station and the
learned Magistrate forwarded accused along with forged salary certificate for
investigation and the investigation revealed that accused committed offences
under Sections 468 & 471 IPC. During trial, six witnesses are examined and 11
documents are marked on behalf of prosecution and no witnesses are examined and
no documents are marked on behalf of accused. On a over all consideration of
oral and documentary evidence, trial Court found accused guilty for the offences
under Sections 468 & 471 IPC and sentenced him to suffer two years imprisonment
with a fine of Rs.500/- for the offence under Section 468 IPC, six months
imprisonment for the offence under Section 471 IPC. Aggrieved by the conviction
and sentence, accused preferred appeal to the Court of Sessions and I Additional
Metropolitan Sessions Judge, Visakhapatnam confirmed the conviction and sentence
passed against accused. Now aggrieved by the judgments of both Courts, present
revision is preferred.
3. Heard both sides.
4. Advocate for revision petitioner mainly contended that there is no
complaint from the Presiding Officer of the Court as required under Section 195
Cr.P.C., therefore, the entire trial is vitiated. He submitted that even
otherwise, the person who is expected to issue salary certificate of the
employees is not examined to prove that the salary certificate produced by
accused is not issued by the competent authority and the witness examined i.e.,
P.W.3 is nothing to do with the issue of salary certificate, but the trial Court
treated P.W.3 as the issuing authority, which is a wrong finding. He further
submitted that provisions of Section 195 Cr.P.C and Section 340 Cr.P.C are not
followed and the conviction cannot be sustained. On the other hand, learned
Public Prosecutor appearing for the State submitted that accused was sent to
police station with official memorandum, which is marked as Ex.P1 and the
evidence of hand writing expert would disclose that the certificate produced by
accused is a false and forged document. He submitted that both trial Court and
appellate Court have rightly appreciated evidence on record and that there are
no grounds to interfere.
5. Now the point that would arise for my consideration is whether the
Judgments of the Courts below are legal, proper and correct
6. Point:- Here the revision petitioner is a driver working in APSRTC,
Visakhapatnam Steel Plant Depot at relevant point of time. According to
prosecution, P.W.1 was VIII Metropolitan Magistrate at Gajuwaka at relevant
point of time. According to prosecution, on 02-03-2002, at about 3:00 P.M., the
revision petitioner appeared before the Court of P.W.1 as surety for an accused
in Crime No.58/2002 of Gajuwaka Law & Order Police Station and that P.W.1
suspected the genuineness of the salary certificate produced by accused and on
that,
he forwarded accused along with the salary certificate and identity card to
S.H.O., Gajuwaka Law & Order Police through an official memo for investigation.
Police registered crime on the basis of the official memo of P.W.1, investigated
into and filed charge sheet.
7. Now the main contention of the revision petitioner is that procedure under
Sections 195 & 340 Cr.P.C is not followed by P.W.1 and therefore, the charge
sheet and trial thereon is not maintainable and has to be held as illegal.
For convenience and better appreciation, it is necessary to refer to these two
provisions, which reads as follows:-
"195. Prosecution for contempt of lawful authority of public servants, for
offences against public justice and for offences relating to documents given in
evidence:-
(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
(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 of some other Court to
which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of
sub- section (1) any authority to which he is administratively subordinate may
order the withdrawal of the complaint and send a copy of such order to the
Court; and upon its receipt by the Court, no further proceedings shall be taken
on the complaint: Provided that no such withdrawal shall be ordered if the trial
in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue
or Criminal Court, and includes a tribunal constituted by or under a Central,
Provincial or State Act if declared by that Act to be a Court for the purposes
of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be
deemed to be subordinate to the Court to which appeals ordinarily lie from the
appealable decrees or sentences of such former Court, or in the case of a Civil
Court from whose decrees no appeal ordinarily lies, to the principal Court
having ordinary original civil jurisdiction within whose local jurisdiction such
Civil Court in situate:
340. Procedure in cases mentioned in
Section 195:-. (1) When, upon an application made to it in this behalf or
otherwise, any Court is of opinion that it is expedient in the interests of
justice that an inquiry should be made into any offence referred to in clause
(b) of sub- section (1) of section 195, which appears to have been committed in
or in relation to a proceeding in that Court or, as the case may be, in respect
of a document produced or given in evidence in a proceeding in that Court, such
Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such
Magistrate, or if the alleged offence is non- bailable and the Court thinks it
necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence
may, in any case where that Court has neither made a complaint under sub-
section (1) in respect of that offence nor rejected an application for the
making of such complaint, be exercised by the Court to which such former Court
is subordinate within the meaning of sub- section (4) of section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of
the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section," Court" has the same meaning as in Section 195."
8. As seen from the Section 195 Cr.P.C., the relevant provision for the case
on hand is 195 (b) (ii).
9. From a reading of the above provision, it is clear that no Court shall
take cognizance unless, the complaint is given in writing by the Court or by any
officer authorised by the Court in respect of the offence committed before it.
Here according to prosecution, accused produced a forged salary certificate
before P.W.1 while standing as surety for an accused in the very same Court.
According to this provision with regard to this incident, there must be a
complaint either from P.W.1 or by an officer authorised by him. Now according
to prosecution, P.W.1 issued an official memo and on the basis of it, the
criminal law was set into motion. Now the point that has to be decided is
whether Ex.P1 can be treated as a complaint as envisaged under Section 195
Cr.P.C. This Ex.P1 is an official memo given to S.H.O., Gajuwaka Law & Order
Police Station, Gajuwaka, which reads as follows:-
"VIII Metropolitan Magistrate Court,
Visakhapatnam at Gajuwaka, Dt.2.3.2002.
M E M O
Sub:- Registered a case against S. Ch. V. Rao and
Investigate -Reg.
The S.H.O., Gajuwaka L&O PS., is hereby directed to Register a case against
S.Ch.V.Rao, who is forwarded through P.C.1663 of Gajuwaka L&O P.S., as the
individual produced forged Salary Certificate of Depot Manager, APSRTC,
Visakhapatnam Steel City for the release of P. Srinivasa Rao forwarding Salary
Certificate with identity card originals with zerox of identity card for
investigation and submit the FIR on or before 13.3.2002 and investigate the
matter.
VIII METROPOLITAN MAGISTRATE,
VISAKHATAPATNAM AT GAJUWAKA.
Encl:- Zerox copy of identity
Card originals of identity
Card and salary certificate of
S.Ch. Rao.
To
The S.H.O.,
Gajuwaka Law & Order P.S.,
Gajuwaka."
10. According to Advocate for revision petitioner, a reading of above memo
would disclose that it cannot be termed as complaint and it is only an order of
P.W.1 to the S.H.O.
As seen from Ex.P1-memo, police appears to have treated this as a compliant and
registered F.I.R on the basis of this memo. Now the other contention of
Advocate for the revision petitioner is that the Court has to follow Section 340
Cr.P.C for giving a complaint in respect of cases mentioned in Section 195
Cr.P.C. A reading of this Section would show that when an offence referred in
Section 195 (1) (b) has been committed in or in relation to a proceeding in a
Court, the Court after preliminary enquiry, if any, record a finding to that
effect, make a complaint thereof in writing, send it to a Magistrate of First
Class having jurisdiction take sufficient security for appearance of the accused
before such Magistrate and bind over any person to appear and give evidence
before such Magistrate. Now according to Advocate for revision petitioner, when
P.W.1 noticed that revision petitioner has produced a fake and false document,
he should have followed these four steps namely; conducting a preliminary
enquiry, recording a finding to that effect, preparing a complaint in writing
and send that complaint to a Magistrate of First Class having jurisdiction,
taking sufficient security for appearance of the accused and bind over any
person to appear to give evidence to any such Magistrate, but the learned
Magistrate i.e., P.W.1 has not followed this procedure and simply issued a memo
to the S.H.O and therefore the entire procedure followed by the Magistrate is
incorrect. Learned Advocate for revision petitioner relied on a decision of
Supreme Court reported in M.S. AHLWAT v. STATE OF HARYANA AND ANOHTER1 for the
proposition that provisions of Section 195 Cr.P.C are mandatory and no Court has
jurisdiction to take cognizance of any of the offences mentioned therein, unless
there is a complaint in writing as required under that Section. As rightly
pointed out by the learned Advocate for revision petitioner this Ex.P1 cannot
be treated as a complaint under Section 195 Cr.P.C as P.W.1 has not followed the
procedure contemplated under Section 340 Cr.P.C. In the above referred Supreme
Court decision, when a forgery is committed before the Hon'ble Supreme Court
while the Hon'ble Court noticed that the petitioner filed affidavit with forged
signature and false statement at different stages, he was punished by the
Hon'ble Supreme Court by issuing a show cause notice, which was held as without
jurisdiction. The Hon'ble Supreme Court observed that they ought to have
followed procedure under Sections 195 Cr.P.C and 340 Cr.P.C and on that ground,
conviction imposed by the Supreme Court against the petitioner therein is set
aside by a Three Judges' Bench.
In that decision, it is held "provisions of Section 195 Cr.P.C are mandatory and
no Court has jurisdiction to take cognizance of any of the offences mentioned
therein unless there is a compliant in writing as required under that Section.
It is settled law that every incorrect or false statement does not make it
incumbent upon the Court to order prosecution, but requires the Court to
exercise judicial discretion to order prosecution only in the larger interest of
the administration of justice. Section 340 Cr.P.C prescribes the procedure has
to how a complaint may be preferred under Section 195 Cr.P.C. A compliant out
side the provisions of Section 340 Cr.P.C cannot be filed by any civil, revenue
or criminal Court under its inherent jurisdiction."
11 From the above observations of the Hon'ble Supreme Court, it is very clear
that a complaint out side the purview of Section 340 Cr.P.C cannot be filed by
any Court. So here admittedly, P.W.1 has not followed the procedure
contemplated under Sections 340 Cr.P.C., to give a compliant in respect of the
offence alleged against revision petitioner. When the Hon'ble Supreme Court in
respect of an offence committed before that Court is pleased to set aside the
punishment given in respect of an accused person for not following the procedure
under Sections 195 and 340 Cr.P.C., by the Hon'ble Supreme Court, there cannot
be any exemption to deviate the procedure by any other Court. So as rightly
pointed out by the learned Advocate for revision petitioner as P.W.1 has not
followed the procedure under Section 340 Cr.P.C the cognizance taken by Court
below against the revision petitioner without a complaint under Section 195
Cr.P.C., the entire proceedings have to be treated that they are not in
accordance with law as such illegal.
12 For these reasons, I am of the view that conviction against the revision
petitioner recorded by the trial Court and upheld by the appellate Court has to
be set aside for non- compliance of Sections 195 and 340 Cr.P.C.
13. In the result, the Criminal Revision Case is allowed by setting aside
the conviction and sentence imposed against the revision petitioner for the
offence under Sections 468 & 471 IPC and he is acquitted of the said charge. His
bail bonds shall stand cancelled and fine amount, if any, paid by the revision
petitioner shall be refunded.
14 As a sequel, miscellaneous petitions if any pending in this Criminal
Revision Case shall stand disposed of.
__________________________
JUSTICE S. RAVI KUMAR
Date:21.02.2014
Sub-Inspector of Police, Gajuwaka Law & Order Police Station filed charge sheet
against the revision petitioner alleging that revision petitioner produced a
forged salary certificate along with identity card before VIII Metropolitan
Magistrate, Gajuwaka while standing as surety for an accused by name one P.
Srinivasa Rao in Crime No.58/2002 of Gajuwaka Law & Order Police Station and the
learned Magistrate forwarded accused along with forged salary certificate for
investigation and the investigation revealed that accused committed offences
under Sections 468 & 471 IPC. =
"VIII Metropolitan Magistrate Court,
Visakhapatnam at Gajuwaka, Dt.2.3.2002.
M E M O
Sub:- Registered a case against S. Ch. V. Rao and
Investigate -Reg.
The S.H.O., Gajuwaka L&O PS., is hereby directed to Register a case against
S.Ch.V.Rao, who is forwarded through P.C.1663 of Gajuwaka L&O P.S., as the
individual produced forged Salary Certificate of Depot Manager, APSRTC,
Visakhapatnam Steel City for the release of P. Srinivasa Rao forwarding Salary
Certificate with identity card originals with zerox of identity card for
investigation and submit the FIR on or before 13.3.2002 and investigate the
matter.
VIII METROPOLITAN MAGISTRATE,
VISAKHATAPATNAM AT GAJUWAKA.
Encl:- Zerox copy of identity
Card originals of identity
Card and salary certificate of
S.Ch. Rao.
To
The S.H.O.,
Gajuwaka Law & Order P.S.,
Gajuwaka."
10. According to Advocate for revision petitioner, a reading of above memo
would disclose that it cannot be termed as complaint and it is only an order of
P.W.1 to the S.H.O.
As seen from Ex.P1-memo, police appears to have treated this as a compliant and
registered F.I.R on the basis of this memo.
Now the other contention of
Advocate for the revision petitioner is that the Court has to follow Section 340
Cr.P.C for giving a complaint in respect of cases mentioned in Section 195
Cr.P.C.
A reading of this Section would show that
when an offence referred in
Section 195 (1) (b) has been committed in or in relation to a proceeding in a
Court, the Court after preliminary enquiry, if any, record a finding to that
effect, make a complaint thereof in writing, send it to a Magistrate of First
Class having jurisdiction take sufficient security for appearance of the accused
before such Magistrate and bind over any person to appear and give evidence
before such Magistrate.
Now according to Advocate for revision petitioner, when
P.W.1 noticed that revision petitioner has produced a fake and false document,
he should have followed these
four steps namely;
conducting a preliminary
enquiry,
recording a finding to that effect,
preparing a complaint in writing
and
send that complaint to a Magistrate of First Class having jurisdiction,
taking sufficient security for appearance of the accused and bind over any
person to appear to give evidence to any such Magistrate, but the learned
Magistrate i.e., P.W.1 has not followed this procedure and simply issued a memo
to the S.H.O and therefore the entire procedure followed by the Magistrate is
incorrect.
Learned Advocate for revision petitioner relied on a decision of
Supreme Court reported in M.S. AHLWAT v. STATE OF HARYANA AND ANOHTER1 for the
proposition that provisions of Section 195 Cr.P.C are mandatory and no Court has
jurisdiction to take cognizance of any of the offences mentioned therein, unless
there is a complaint in writing as required under that Section.
As rightly
pointed out by the learned Advocate for revision petitioner this Ex.P1 cannot
be treated as a complaint under Section 195 Cr.P.C as P.W.1 has not followed the
procedure contemplated under Section 340 Cr.P.C.
In the above referred Supreme
Court decision, when a forgery is committed before the Hon'ble Supreme Court
while the Hon'ble Court noticed that the petitioner filed affidavit with forged
signature and false statement at different stages, he was punished by the
Hon'ble Supreme Court by issuing a show cause notice, which was held as without
jurisdiction. The Hon'ble Supreme Court observed that they ought to have
followed procedure under Sections 195 Cr.P.C and 340 Cr.P.C and on that ground,
conviction imposed by the Supreme Court against the petitioner therein is set
aside by a Three Judges' Bench.
In that decision, it is held "provisions of Section 195 Cr.P.C are mandatory and
no Court has jurisdiction to take cognizance of any of the offences mentioned
therein unless there is a compliant in writing as required under that Section.
It is settled law that every incorrect or false statement does not make it
incumbent upon the Court to order prosecution, but requires the Court to
exercise judicial discretion to order prosecution only in the larger interest of
the administration of justice. Section 340 Cr.P.C prescribes the procedure has
to how a complaint may be preferred under Section 195 Cr.P.C. A compliant out
side the provisions of Section 340 Cr.P.C cannot be filed by any civil, revenue
or criminal Court under its inherent jurisdiction."
11 From the above observations of the Hon'ble Supreme Court, it is very clear
that a complaint out side the purview of Section 340 Cr.P.C cannot be filed by
any Court. So here admittedly, P.W.1 has not followed the procedure
contemplated under Sections 340 Cr.P.C., to give a compliant in respect of the
offence alleged against revision petitioner. When the Hon'ble Supreme Court in
respect of an offence committed before that Court is pleased to set aside the
punishment given in respect of an accused person for not following the procedure
under Sections 195 and 340 Cr.P.C., by the Hon'ble Supreme Court, there cannot
be any exemption to deviate the procedure by any other Court. So as rightly
pointed out by the learned Advocate for revision petitioner as P.W.1 has not
followed the procedure under Section 340 Cr.P.C the cognizance taken by Court
below against the revision petitioner without a complaint under Section 195
Cr.P.C., the entire proceedings have to be treated that they are not in
accordance with law as such illegal.
12 For these reasons, I am of the view that conviction against the revision
petitioner recorded by the trial Court and upheld by the appellate Court has to
be set aside for non- compliance of Sections 195 and 340 Cr.P.C.
13. In the result, the Criminal Revision Case is allowed by setting aside
the conviction and sentence imposed against the revision petitioner for the
offence under Sections 468 & 471 IPC and he is acquitted of the said charge. His
bail bonds shall stand cancelled and fine amount, if any, paid by the revision
petitioner shall be refunded.
14 As a sequel, miscellaneous petitions if any pending in this Criminal
Revision Case shall stand disposed of.
2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10941
THE HON'BLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL REVISION CASE No.1869 of 2006
21-02-2014
Setti China Venkata Rao....Petitioner.
The State of Andhra Pradesh, Rep by its Public Prosecutor,High Court of A.P.,
Hyderabad. .... Respondent.
Counsel for the Petitioner: Sri K. Kamalakar
Counsel for Respondent: Public Prosecutor
<Gist :
>Head Note:
?Cases referred:
1 (2000) 1 Supreme Court Cases 278
THE HON'BLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL REVISION CASE No.1869 of 2006
Date:21.02.2014
JUDGMENT:
This revision is preferred against Judgement dated
08-11-2006 in Crl.A.No.96/2004 on the file of I Additional Metropolitan Sessions
Judge, Visakhapatnam whereunder judgment dated 02-08-2004 in C.C.No.520/2002 on
the file of II Additional Chief Metropolitan Magistrate, Visakhapatnam (formerly
V Metropolitan Magistrate, Visakhapatnam) was confirmed.
2. Brief facts leading to filing of this revision are as follows:-
Sub-Inspector of Police, Gajuwaka Law & Order Police Station filed charge sheet
against the revision petitioner alleging that revision petitioner produced a
forged salary certificate along with identity card before VIII Metropolitan
Magistrate, Gajuwaka while standing as surety for an accused by name one P.
Srinivasa Rao in Crime No.58/2002 of Gajuwaka Law & Order Police Station and the
learned Magistrate forwarded accused along with forged salary certificate for
investigation and the investigation revealed that accused committed offences
under Sections 468 & 471 IPC. During trial, six witnesses are examined and 11
documents are marked on behalf of prosecution and no witnesses are examined and
no documents are marked on behalf of accused. On a over all consideration of
oral and documentary evidence, trial Court found accused guilty for the offences
under Sections 468 & 471 IPC and sentenced him to suffer two years imprisonment
with a fine of Rs.500/- for the offence under Section 468 IPC, six months
imprisonment for the offence under Section 471 IPC. Aggrieved by the conviction
and sentence, accused preferred appeal to the Court of Sessions and I Additional
Metropolitan Sessions Judge, Visakhapatnam confirmed the conviction and sentence
passed against accused. Now aggrieved by the judgments of both Courts, present
revision is preferred.
3. Heard both sides.
4. Advocate for revision petitioner mainly contended that there is no
complaint from the Presiding Officer of the Court as required under Section 195
Cr.P.C., therefore, the entire trial is vitiated. He submitted that even
otherwise, the person who is expected to issue salary certificate of the
employees is not examined to prove that the salary certificate produced by
accused is not issued by the competent authority and the witness examined i.e.,
P.W.3 is nothing to do with the issue of salary certificate, but the trial Court
treated P.W.3 as the issuing authority, which is a wrong finding. He further
submitted that provisions of Section 195 Cr.P.C and Section 340 Cr.P.C are not
followed and the conviction cannot be sustained. On the other hand, learned
Public Prosecutor appearing for the State submitted that accused was sent to
police station with official memorandum, which is marked as Ex.P1 and the
evidence of hand writing expert would disclose that the certificate produced by
accused is a false and forged document. He submitted that both trial Court and
appellate Court have rightly appreciated evidence on record and that there are
no grounds to interfere.
5. Now the point that would arise for my consideration is whether the
Judgments of the Courts below are legal, proper and correct
6. Point:- Here the revision petitioner is a driver working in APSRTC,
Visakhapatnam Steel Plant Depot at relevant point of time. According to
prosecution, P.W.1 was VIII Metropolitan Magistrate at Gajuwaka at relevant
point of time. According to prosecution, on 02-03-2002, at about 3:00 P.M., the
revision petitioner appeared before the Court of P.W.1 as surety for an accused
in Crime No.58/2002 of Gajuwaka Law & Order Police Station and that P.W.1
suspected the genuineness of the salary certificate produced by accused and on
that,
he forwarded accused along with the salary certificate and identity card to
S.H.O., Gajuwaka Law & Order Police through an official memo for investigation.
Police registered crime on the basis of the official memo of P.W.1, investigated
into and filed charge sheet.
7. Now the main contention of the revision petitioner is that procedure under
Sections 195 & 340 Cr.P.C is not followed by P.W.1 and therefore, the charge
sheet and trial thereon is not maintainable and has to be held as illegal.
For convenience and better appreciation, it is necessary to refer to these two
provisions, which reads as follows:-
"195. Prosecution for contempt of lawful authority of public servants, for
offences against public justice and for offences relating to documents given in
evidence:-
(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
(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 of some other Court to
which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of
sub- section (1) any authority to which he is administratively subordinate may
order the withdrawal of the complaint and send a copy of such order to the
Court; and upon its receipt by the Court, no further proceedings shall be taken
on the complaint: Provided that no such withdrawal shall be ordered if the trial
in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue
or Criminal Court, and includes a tribunal constituted by or under a Central,
Provincial or State Act if declared by that Act to be a Court for the purposes
of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be
deemed to be subordinate to the Court to which appeals ordinarily lie from the
appealable decrees or sentences of such former Court, or in the case of a Civil
Court from whose decrees no appeal ordinarily lies, to the principal Court
having ordinary original civil jurisdiction within whose local jurisdiction such
Civil Court in situate:
340. Procedure in cases mentioned in
Section 195:-. (1) When, upon an application made to it in this behalf or
otherwise, any Court is of opinion that it is expedient in the interests of
justice that an inquiry should be made into any offence referred to in clause
(b) of sub- section (1) of section 195, which appears to have been committed in
or in relation to a proceeding in that Court or, as the case may be, in respect
of a document produced or given in evidence in a proceeding in that Court, such
Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such
Magistrate, or if the alleged offence is non- bailable and the Court thinks it
necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence
may, in any case where that Court has neither made a complaint under sub-
section (1) in respect of that offence nor rejected an application for the
making of such complaint, be exercised by the Court to which such former Court
is subordinate within the meaning of sub- section (4) of section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of
the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section," Court" has the same meaning as in Section 195."
8. As seen from the Section 195 Cr.P.C., the relevant provision for the case
on hand is 195 (b) (ii).
9. From a reading of the above provision, it is clear that no Court shall
take cognizance unless, the complaint is given in writing by the Court or by any
officer authorised by the Court in respect of the offence committed before it.
Here according to prosecution, accused produced a forged salary certificate
before P.W.1 while standing as surety for an accused in the very same Court.
According to this provision with regard to this incident, there must be a
complaint either from P.W.1 or by an officer authorised by him. Now according
to prosecution, P.W.1 issued an official memo and on the basis of it, the
criminal law was set into motion. Now the point that has to be decided is
whether Ex.P1 can be treated as a complaint as envisaged under Section 195
Cr.P.C. This Ex.P1 is an official memo given to S.H.O., Gajuwaka Law & Order
Police Station, Gajuwaka, which reads as follows:-
"VIII Metropolitan Magistrate Court,
Visakhapatnam at Gajuwaka, Dt.2.3.2002.
M E M O
Sub:- Registered a case against S. Ch. V. Rao and
Investigate -Reg.
The S.H.O., Gajuwaka L&O PS., is hereby directed to Register a case against
S.Ch.V.Rao, who is forwarded through P.C.1663 of Gajuwaka L&O P.S., as the
individual produced forged Salary Certificate of Depot Manager, APSRTC,
Visakhapatnam Steel City for the release of P. Srinivasa Rao forwarding Salary
Certificate with identity card originals with zerox of identity card for
investigation and submit the FIR on or before 13.3.2002 and investigate the
matter.
VIII METROPOLITAN MAGISTRATE,
VISAKHATAPATNAM AT GAJUWAKA.
Encl:- Zerox copy of identity
Card originals of identity
Card and salary certificate of
S.Ch. Rao.
To
The S.H.O.,
Gajuwaka Law & Order P.S.,
Gajuwaka."
10. According to Advocate for revision petitioner, a reading of above memo
would disclose that it cannot be termed as complaint and it is only an order of
P.W.1 to the S.H.O.
As seen from Ex.P1-memo, police appears to have treated this as a compliant and
registered F.I.R on the basis of this memo. Now the other contention of
Advocate for the revision petitioner is that the Court has to follow Section 340
Cr.P.C for giving a complaint in respect of cases mentioned in Section 195
Cr.P.C. A reading of this Section would show that when an offence referred in
Section 195 (1) (b) has been committed in or in relation to a proceeding in a
Court, the Court after preliminary enquiry, if any, record a finding to that
effect, make a complaint thereof in writing, send it to a Magistrate of First
Class having jurisdiction take sufficient security for appearance of the accused
before such Magistrate and bind over any person to appear and give evidence
before such Magistrate. Now according to Advocate for revision petitioner, when
P.W.1 noticed that revision petitioner has produced a fake and false document,
he should have followed these four steps namely; conducting a preliminary
enquiry, recording a finding to that effect, preparing a complaint in writing
and send that complaint to a Magistrate of First Class having jurisdiction,
taking sufficient security for appearance of the accused and bind over any
person to appear to give evidence to any such Magistrate, but the learned
Magistrate i.e., P.W.1 has not followed this procedure and simply issued a memo
to the S.H.O and therefore the entire procedure followed by the Magistrate is
incorrect. Learned Advocate for revision petitioner relied on a decision of
Supreme Court reported in M.S. AHLWAT v. STATE OF HARYANA AND ANOHTER1 for the
proposition that provisions of Section 195 Cr.P.C are mandatory and no Court has
jurisdiction to take cognizance of any of the offences mentioned therein, unless
there is a complaint in writing as required under that Section. As rightly
pointed out by the learned Advocate for revision petitioner this Ex.P1 cannot
be treated as a complaint under Section 195 Cr.P.C as P.W.1 has not followed the
procedure contemplated under Section 340 Cr.P.C. In the above referred Supreme
Court decision, when a forgery is committed before the Hon'ble Supreme Court
while the Hon'ble Court noticed that the petitioner filed affidavit with forged
signature and false statement at different stages, he was punished by the
Hon'ble Supreme Court by issuing a show cause notice, which was held as without
jurisdiction. The Hon'ble Supreme Court observed that they ought to have
followed procedure under Sections 195 Cr.P.C and 340 Cr.P.C and on that ground,
conviction imposed by the Supreme Court against the petitioner therein is set
aside by a Three Judges' Bench.
In that decision, it is held "provisions of Section 195 Cr.P.C are mandatory and
no Court has jurisdiction to take cognizance of any of the offences mentioned
therein unless there is a compliant in writing as required under that Section.
It is settled law that every incorrect or false statement does not make it
incumbent upon the Court to order prosecution, but requires the Court to
exercise judicial discretion to order prosecution only in the larger interest of
the administration of justice. Section 340 Cr.P.C prescribes the procedure has
to how a complaint may be preferred under Section 195 Cr.P.C. A compliant out
side the provisions of Section 340 Cr.P.C cannot be filed by any civil, revenue
or criminal Court under its inherent jurisdiction."
11 From the above observations of the Hon'ble Supreme Court, it is very clear
that a complaint out side the purview of Section 340 Cr.P.C cannot be filed by
any Court. So here admittedly, P.W.1 has not followed the procedure
contemplated under Sections 340 Cr.P.C., to give a compliant in respect of the
offence alleged against revision petitioner. When the Hon'ble Supreme Court in
respect of an offence committed before that Court is pleased to set aside the
punishment given in respect of an accused person for not following the procedure
under Sections 195 and 340 Cr.P.C., by the Hon'ble Supreme Court, there cannot
be any exemption to deviate the procedure by any other Court. So as rightly
pointed out by the learned Advocate for revision petitioner as P.W.1 has not
followed the procedure under Section 340 Cr.P.C the cognizance taken by Court
below against the revision petitioner without a complaint under Section 195
Cr.P.C., the entire proceedings have to be treated that they are not in
accordance with law as such illegal.
12 For these reasons, I am of the view that conviction against the revision
petitioner recorded by the trial Court and upheld by the appellate Court has to
be set aside for non- compliance of Sections 195 and 340 Cr.P.C.
13. In the result, the Criminal Revision Case is allowed by setting aside
the conviction and sentence imposed against the revision petitioner for the
offence under Sections 468 & 471 IPC and he is acquitted of the said charge. His
bail bonds shall stand cancelled and fine amount, if any, paid by the revision
petitioner shall be refunded.
14 As a sequel, miscellaneous petitions if any pending in this Criminal
Revision Case shall stand disposed of.
__________________________
JUSTICE S. RAVI KUMAR
Date:21.02.2014
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