ORDER
1. This petition filed under [SECTION] of the [ACT] challenges the order dated 15-4-1988 passed by the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay, by which [CASE NUMBER] filed by the applicant came to be dismissed under [SECTION] of the [ACT]. The complaint came to be dismissed on the ground that the provision of [SECTION] of the [ACT] is attracted and hence the Court was having no jurisdiction to entertain the said complaint filed by the private party.
2. It will be necessary to note a few facts and the proceedings involved. On 10-2-1964, one [ENTITY], a spinster, executed a Will. By the said Will, she willed away immovable property for charitable purposes i.e. Church, etc. Respondent No. 1 was appointed as one of the trustees and executors of the said Will. [ENTITY] died on 7-4-1965. She was having a brother by name [ENTITY]. He also executed a Will on 22nd December, 1966 and willed away the immovable property for charitable purposes. Respondent No. 1 was also appointed as one of the trustees and executors under the Will. [ENTITY] died on 24-5-1967.
3. Probate proceeding was started in the High Court of Bombay in respect of the Will of [ENTITY]. Necessary notices were served including on the petitioner. The High Court granted probate in respect of the Will of [ENTITY] on 13-3-1967. Similar proceeding for probate was initiated in the High Court of Bombay in respect of the Will of [ENTITY]. Again necessary notices were served and procedure followed and on 16-2-1968 probate came to be granted in respect of the Will of [ENTITY]. On 13-10-1969, [CASE NUMBER] came to be filed on behalf of the applicant in the High Court of Bombay for revocation of grant of probate dated 16-2-1968 in respect of the Will of [ENTITY]. However, on 30-4-1971, the applicant withdrew the same and this Court directed the applicant to pay costs to the respondents therein.
4. On 2-11-1970, the applicant filed [CASE NUMBER] before the Presidency Magistrate, Mazgaon, Bombay. The respondent No. 1 was one of the accused therein. It was under [SECTION] of [ACT] The complaint was in respect of the Will of [ENTITY]. However, it seems that arguments were advanced before the learned Judge in respect of both the Wills. The learned Judge by his order dated 25-2-1971 declined to take cognizance observing that the Will was already produced in the High Court of Judicature at Bombay and probate has been granted. The cognizance can only be taken by the Court before which the document was produced in view of [SECTION] of the [ACT]. The complaint came to be dismissed.
5. The applicant also filed [CASE NUMBER] in the Bombay High Court, Original Side. It was against respondent No. 1 and others. The applicant prayed that the Wills of [ENTITY] and [ENTITY] be declared as null and void and the probates granted to the said Wills as invalid and inoperative. Alternatively, it was prayed that it may be declared that those Wills were valid only to the extent of 1/6th share each in the properties and the probates granted beyond the said share were invalid and inoperative. This was on the basis that both [ENTITY] and [ENTITY] were having 1/6th share in the properties. The said suit came to be dismissed for want of prosecution on 5-3-1981. The applicant took out Notice of Motion No. 1853 of 1985 for setting aside the order dated 5-3-1981. However, on 9-1-1986, the said Notice of Motion came to be dismissed with costs. The applicant did not stop there. He filed [CASE NUMBER] challenging the said order dated 9-1-1986, but the same was also dismissed on 18-9-1986.
6. The present complaint came to be filed by the applicant on 19-3-1986 under [SECTION] of [ACT] alleging that the wills were fabricated by respondent No. 1. The learned Judge initially ordered investigation under [SECTION] of the [ACT]. The Sub-Inspector of Police submitted a report stating that the applicant's statement was recorded and he has produced various documents. A reference was made to the earlier complaint filed by the applicant which came to be dismissed in view of [SECTION] of the [ACT]. He therefore submitted that the applicant should file the complaint in respect of this offence in the Court before which the said document was produced.
7. The main point involved in the petition is whether bar of [SECTION] of the [ACT] is attracted in the present case and whether the private complaint filed by the applicant is maintainable.
8. The learned Advocate appearing for the applicant submitted that bar of [SECTION] is not attracted as it is not the case of the applicant that the Wills were forged by respondent No. 1 after they were produced in probate proceedings. He submitted that the said section as incorporated in the [ACT] makes no change and is having the same effect as [SECTION] of the [ACT] as far as the point involved in this matter.
9. This section in the Chapter which deals within conditions requisite for initiation of proceedings. [SECTION] is as follows :-
"195(1)(b)(ii) No Court shall take cognizance of any offence described in [SECTION], or punishable under [SECTION], [SECTION] or [SECTION], 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 except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."
Similarly, [SECTION] of the [ACT] is as follows :-
"195(1)(c) No Court shall take cognizance of any offence described in [SECTION] or punishable under [SECTION], [SECTION] or [SECTION] 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."
Thus, it is clear that the words "by a party to any proceeding in any Court" appearing in [SECTION] are ommitted when the new [SECTION] was introduced. It is necessary to consider the effect thereof.
10. The learned Advocate for the applicant relied upon the judgment of the Apex Court , [PRECEDENT]. It came to be observed as follows (Para 7) :-
" All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in [SECTION], [ACT] to the offences mentioned therein when committed by a party to a proceeding in that Court prior to his becoming such party. It is no doubt true that quite often - if not almost invariably - the documents are forged for being used or produced in evidence in Court before the proceeding are started. But that in our opinion cannot be the controlling factor, because to accept that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years later by some other party would also be subject to [SECTION] and [SECTION], [ACT] This in our opinion would unreasonably restrict the right possessed by a person and recognised by [SECTION], [ACT] without prompting the real purpose and object underlying these two Sections."
Then the Apex Court re-affirmed this in . Again the provision of [SECTION] was for consideration and it was observed as follows. (Para 4) :-
" The forgery therefore is alleged to have been committed by the appellants not after they became parties to the mutation proceedings but prior to the commencement of those proceedings. [SECTION] can therefore have no application at least in regard to the offences under [SECTION], [SECTION] and [SECTION], [ACT]."
The learned Advocate for the applicant pointed out that the Division Bench of Punjab & Haryana High Court ([CASE NUMBER]) considering the judgments of the Apex Court in the judgment [PRECEDENT] has come to the conclusion that omission of the words mentioned above from [SECTION] have made no difference. It was held as follows (at p. 717 of Cri LJ) :-
"9. On principle as also on the sound canons of construction, it is apt to confine [SECTION] of the Code to forgeries committed in respect of a document during its custody by the court or its fabrication in the course of the proceedings itself."
It was further observed (at p. 718 of Cri LJ) "To my mind the deletion of the words 'by a party to any proceeding in any court' in [SECTION] of the Code has only the effect of enlarging the protection envisaged by the Section to the witness, scribes, attestors, etc. of the document with regard to which the offence has been committed. This class of persons would now be equally within the ambit of the provision irrespective of the fact whether they are parties to the proceedings or not."
11. The learned Advocate for the applicant also drew my attention to the Report of the Law Commission which has recommended that the ambit of the said [SECTION] may be extended and it is necessary to grant protection to the witnesses, abettors of the offence and others and not party to the proceedings. It is also mentioned that the scope of the clause should not be restricted to offences committed by parties to Court proceedings. The learned Advocate for the applicant therefore submitted that new section by dropping the words only extends the scope in respect of parties and not in respect of the time.
12. As against this, the learned Advocate appearing for the respondent relied upon the judgments of the Karnataka High Court reported in [PRECEDENT] [PRECEDENT], Judgment of Allahabad High Court, [CASE NUMBER] [PRECEDENT] and the judgment of the Apex Court [PRECEDENT] and submitted that it is necessary to put wider interpretation on this section so as to extend it not only to the parties but also in respect of time. In [PRECEDENT], (mentioned supra), the single Judge considered the effect of the deletion of the words "by a party to any proceeding in any Court" in respect of [SECTION]. It was observed "Since the amended [SECTION] would cover not only the party to the proceeding but also others referred to above, it is reasonable to hold that the offences alleged to have been committed by such persons in respect of the documents would include not only the offences alleged to have been committed in respect of the documents produced or given in evidence after the initiation of the proceeding in which they were produced but also the offences committed before the initiation of the proceeding and were produced in the proceedings after its initiation." It was further held that the change brought about by the deletion of these words is for removal of the restriction confined to the party to the proceedings and the inclusion of other persons and also for enlarging the scope of the time-factor of the commission of the alleged offence of forgery whether it is after the initiation of the proceeding or before. Similar view was taken by the Andhra Pradesh High Court in [CASE NUMBER] (referred supra). In the case the Apex Court the facts were as follows :
There was a civil litigation between the parties. In the said suit it was alleged that certain amount was deposited with the other side. Along with the plaint, the appellants produced original contract as also the money receipt for Rs. 20,000/- in support of the claim in the suit. After production of the money receipt in Court, the 1st respondent filed a complaint against the plaintiffs (appellants before the Apex Court) alleging forgery of his signature on the money receipt and thereby commission of offence punishable under [SECTION] and [SECTION] of [ACT] The petition moved for quashing came to be dismissed by the High Court holding that the bar of [SECTION] is not attracted. The apex Court reversed the said judgment. The apex Court noticed its earlier judgment and held as follows :-
"In view of what we have said above, the prosecution in the instant case on the basis of a private complaint and in the absence of a complaint from the appropriate civil court where the alleged fraudulent receipt has been produced, would not be sustainable."
So observing the criminal proceedings came to be quashed. The Division Bench of Allahabad High Court in [CASE NUMBER], [PRECEDENT] observed as follows (at p. 430 of Cri LJ) :-
"19. In the result we hold that so long as an offence of the nature specified in [SECTION] of the new Code has been committed in respect of a document produced or given in evidence in any court, the provision of the section gets attracted irrespective of whether or not such offence was committed prior to or after initiation of concerned proceedings."
13. In my opinion, in view of omitting the words "by a party to any proceeding in any Court", the legislature wanted to broaden the scope of [SECTION] not only in respect of parties but also in respect of the time factor. The Law Commission has indicated one of the reasons for amending [SECTION] while enacting corresponding provision in the new Act. It cannot be taken as only reason. Further natural effect of dropping the words would be to remove the bar as regards party as well as time. The rulings cited by the learned Advocate for the applicant and dealing with old [SECTION], mentioned above, are not applicable. Similarly, it is not possible for me to agree with the view of Punjab and Haryana High Court - reported in [CASE NUMBER]. I prefer to follow the view taken by the Karnataka High Court 1978 Cri LJ 1632, by [ENTITY] in [CASE NUMBER] and of the Andhra Pradesh High Court [CASE NUMBER]. This view gets support from the judgment of the apex Court mentioned above. In the said case precisely the alleged forged receipt was produced along with the plaint and the complaint in that respect came to be filed. Therefore, the said receipt was clearly forged prior to the initiation of the proceedings. The Apex Court though referred to its earlier judgment held that the bar of [SECTION] is attracted and quashed the proceedings. In my judgment the following are the reasons for putting wider interpretation on [SECTION]
(i) The legislature clearly intended to broaden the scope so as to save the accused from vexatious or baseless prosecutions spited by feeling of vindictiveness on the part of the private complainant to harass his opponent. (ii) In order to check multiplicity of litigation. (iii) To avoid inconsistent findings - conclusion - and resultant confusion which is likely to arise on account of conflict between findings of the Court in which forged documents are produced or false evidence is led and findings of criminal court dealing with private complaint. (iv) Confusion may arise since one party may alleged that forgery had taken place prior to the document was produced in Court while the other may dispute this. The jurisdiction and the competency to entertain the complaint would depend upon the decision of this point. This would certainly increase and prolong litigation and this can be misused by dishonest litigant. Hence, the conclusion drawn by the learned Judge of the trial Court in the present case that bar of [SECTION] is attracted is correct.
14. Even assuming that this bar will not be attracted in those cases where the document is alleged to have been forged before its production in Court, the question is whether such an allegation is made in the complaint by applicant or not. The complaint mentions that respondent is Attorney at Law who prepared and procured false and fabricated Will purported to have been executed by [ENTITY] on or about 10-2-1964 or prior thereto and also by [ENTITY] on 22-12-1966. It has been further mentioned that the respondent No. 1 by making several false statement on oath has succeeded in misleading and misrepresenting the Hon'ble Court and obtaining probate in respect of the false and fabricated document i.e. the Wills of [ENTITY] and [ENTITY]. In para 10, it mentioned that respondent No. 1 has misused his professional position and practised fraud upon the deceased using this undue influence, coercion, misrepresentation, etc. It is mentioned respondent No. 1 got Wills attested by his Managing Clerk. Therefore, the averments made in the complaint are not only vague but do not mention that the fabrication or forgery had taken place prior to the Wills were produced before the probate Court. This shows that this is nothing but an afterthought and an attempt by the applicant to rake up some dispute after his failure in various proceedings enumerated above. In fact, the averments made in the plaint in the suit filed by him go to indicate that the Wills were properly executed. Therefore, it cannot be said that the learned Judge had committed any error in reaching the conclusion that the bar of [SECTION] is attracted.
15. The learned Advocates also raised the point regarding the effect of grant of probate in case of those 2 Wills. The learned Advocate appearing for the respondent No. 1 cited [PRECEDENT] in which it is held that "it is well settled that the decision of the probate Court is a judgment in rem. A probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Where the citation has been issued to the interested persons and has been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the will in other proceedings". In the present case, the applicant contested those proceedings and failed.
16. The learned Advocate for the applicant relied upon the judgment reported in [PRECEDENT]. The [PRECEDENT]. In the said case, the Civil Court - probate proceedings, a finding were recorded that will was forged. It was contended that the said finding is binding upon the Sessions Court in criminal proceedings launched against the accused. This contention was negatived by the Sessions Court as well as by the High Court by observing "the argument must be rejected, because under [SECTION] of the [ACT], the judgment of the Probate Court is conclusive proof only with respect to the various legal characters or declarations made in those proceedings in so far as they are within the scope of the proceedings. The Civil Court had no jurisdiction to decide that the document is forged within the meaning of the penal section under the [ACT]." However, in my opinion, it is not necessary to decide this point of view of the conclusion reached above and, therefore, I refrain from deciding the said point.
17. Hence, the following order :-
Rule is discharged.
18. Rule discharged.