JUDGMENT [ENTITY], J.
1. A complaint has been filed under [SECTION] and [SECTION] [ACT] against the 2nd respondent herein before the Judicial Magistrate of First Class, Madanapalle. The de facto complainant is one of the dependants in a Civil suit [CASE NUMBER] on the file of the Principal District Munsif, Madanapalle. That suit based on a promissory note was filed by the 2nd respondent against the petitioner and others. When the suit was posted for the evidence of the defendants, the plaintiff (2nd Respondent) withdraw the suit and the suit was dismissed by the learned District Munsif as not passed. The de facto complainant filed the complaint under [SECTION] and [SECTION] [ACT] alleging that the 2nd respondent has forged the promissory note which was a discharged one and thus committed on offence. The said complaint was taken on file as [CASE NUMBER]. Pending the said CC, the 2nd respondent filed an application [CASE NUMBER] stating that the said offences could not have been taken cognizance of by the learned Magistrate except on a complaint in writing, that the complaint has not been lodged by the Principal District Munsif, Madanapalle and that the complainant has not obtained any permission from the Court for launching the prosecution.
2. The de facto complainant took the plea in the counter to the said petition that the offence under [SECTION] [ACT] is outside the scope of [SECTION] [ACT] and it is independent of any proceedings and as such no permission is required to prosecute a person for a charge under [SECTION] [ACT] and there was no need at all to file a complaint by the court. Further, he has not given any consent for the withdrawal of the suit.
3. After the suit was dismissed, the de facto complainant approached the Civil Court with a request to grant the records and the Court also endorsed on the same under [SECTION] [ACT]
4. After considering the rival contentions, the Court below came to the conclusion that the complainant is not maintainable as the documents are said to be forged during the course of the suit
5. It must be noted here that since the suit was dismissed with costs as withdrawn, there was no scope for the Civil Court to consider the feasibility of filing a complaint for forgery. On the other hand, in the complaint the stand taken by the complainant was his consent was not taken for withdrawal of the suit.
6. It is contended by the learned counsel for the petitioner that the document was filed into Court but the suit wherein it was filed was withdrawn as not pressed and was dismissed with costs to the defendants. Therefore, when the suit was dismissed as not pressed it amounts to stating that wrong suit was filed. He further contended that the learned Magistrate filed to notice that the de facto - complainant had not given his consent for the withdrawal of the suit and on the other hand prayed that the accused should be prosecuted for the offence under [SECTION] and [SECTION] [ACT].
7. The point for consideration is - where a defendant takes a stand in the written statement that the document filed by the plaintiff in the suit was a forged one and when the Court permitted the plaintiff to withdraw the suit without being decided on merits, whether the defendant is justified or can be permitted to file a private complaint for the offences under [SECTION] and [SECTION] [ACT].
8. A similar case arose before the Bombay High Court as early as in 1932. In re [PRECEDENT] a revision was filed before the High Court to quash the proceedings taken against the accused therein under [SECTION] [ACT] before the District Magistrate of East Khandesh. After dealing with the law on the subject, [ENTITY], C.J., presiding over the Division Bench observed:
" Now, it seems to me that four cases may arise under that section. First of all, at the date when the court takes cognizance of an offence under [SECTION] [ACT] which I think is the crucial date for the purpose of seeing whether [SECTION] [ACT] applies, there may be proceedings pending in a Court in or in relation to which proceedings the offence is alleged to have been committed. In that case, I think clearly the [SECTION] applies, and the complaint must be by the court in which those proceedings are pending, although I may point out that if the proceedings are pending, but have not come to trial, probably the Judge will refuse to launch any complaint until he has heard the suit. A second case is where a suit was pending, but has not disposed of by the order of the Court before any prosecution is launched. That is the normal case in which [SECTION] comes into operation. I think clearly the Section applies to such a case and the Judge is in a position to see whether a prosecution should be started or not. A third case is where a suit has been started in connection with which the evidence was fabricated and the offence committed under [SECTION], but that suit has been withdrawn without being heard before a Court is asked to take cognizance of the offence. In that case, I appreciate the contention of the learned Government Pleader that if the Judge before whom those proceedings were started has never tried them; he is not in a better position than anyone also to say whether a prosecution under [SECTION] ought to be launched or not. But I do not see how to get out of the words of [SECTION], [ACT] which seem to me to apply to such a case, because the offence has been committed in or in relation to judicial proceedings and the mere fact that the proceedings have been withdrawn and were never tried does not prevent the offence having been committed in relation to those proceedings and no other. Therefore, I think in that case also [SECTION] applies and the complaint must be that of the court. Then there is a fourth case in which an offence is committed under [SECTION] [ACT] in respect of proceedings in a Court of law which are contemplated but which in fact are neverstarted possibly because of the prosecution under [SECTION]. In such a case it appears to me clear that [SECTION] [ACT] does not apply and although an offence has been committed under [SECTION], the Magistrate can take cognizance of it without getting any complaint from a court".
9. In [ENTITY] v. State of Punjab, 1983 Crl.LJ. 713 (P & H) a Division Bench of the Punjab and Haryana High Court was seized of the question whether the police had the statutory power to investigate the cognizable offences under [SECTION] or [SECTION] of the [ACT] vis-a-vis the bar under [SECTION] of the new Code with regard to the cognizance thereof by a Court. While deciding that case the Bench went into the scope of [SECTION] of the new Code after amendment; as to what was the effect of the deletion of the words "by a party to any proceeding in any Court" from [SECTION] of the [ACT] while enacting [SECTION] of the new Code. After considering the question whether after amendment [SECTION] of the new Code applied to the case where forgery was committed much earlier than the production or giving the document in evidence in a proceeding, or only if the offences mentioned in this sub-section are committed when the document is in Court, the High Court held:
" On a principle as also on the sound cannons 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 ".
10. After referring several decisions of the Supreme Court, the Punjab and Haryana High Court observed:
"In view of the wholly settled state of law declared by the Supreme Court under [SECTION] of the old Code, all that now remains is to examine the marginal change in the language of [SECTION] of the Code by deleting the words " by a party to any proceeding in any Court" . There is no indication that in doing so, whilst enacting the new Code, Parliament intended to make any radical change or departure from the settled law earlier. It is well settled that the legislature is presumed to know the existing state of law when making change or amendment in the statute."
11. This Court in [CASE NUMBER] dt. 8-11-1982 where similar questions arose for consideration, after referring to the provisions of [SECTION], [SECTION] of the [ACT], observed:
"From the above provisions, it is quite manifest that the offence which is mentioned in the complaint carries greater punishment, namely 10 years' imprisonment, whereas under [SECTION] [ACT] the punishment is infinitely lesser than the one under [SECTION] namely, two years or fine or both. That apart, in a case reported in [CASE NUMBER] it has been held by the Gujarat High Court that the offences laid down under [SECTION] and [SECTION] [ACT] are distinct. In that case it was contended that a complaint by A to police under [SECTION] that B was in possession of forged documents with intention to use them in our proceedings and therefore B producing documents in court and thereby committing offence under [SECTION] did not wipe out of the offence under [SECTION]. The High Court held under those circumstances that the Magistrate can proceed with case under [SECTION] grounding the reason that [SECTION] is not attracted"
It is further held:
"The penal provisions as it is fairly settled ought to be interpreted very strictly and therefore on the foregoing analysis I have no hesitation in holding that [SECTION] cannot be construed to include [SECTION] as well and, therefore, certainly it is competent for the Magistrate to take cognisance of and try the same as it is needless to follow the case. Hence the contention on the basis of the provisions of [SECTION] of the [ACT] fails and the same is rejected".
12. This order of rejection has challenged by the accused therein before the Supreme Court in [PRECEDENT]. The question before the Supreme Court was:
"The short question arising in this appeal by special leave is whether in the absence of necessary complaint by the Civil Court where a money receipt alleged to have been forged was produced, prosecution for offences punishable under [SECTION] and [SECTION] of the [ACT] would be maintainable".
It was held by the Supreme Court:
"If [SECTION] is attracted to the facts of the present case, in the absence of a complaint in writing of the Civil Court where the alleged forged receipt had been produced, taking of cognizance of the offence would be bad in law and the prosecution being not maintainable, there would be absolutely no justification to harass the appellants by allowing the prosecution a full-dressed trial".
13. In [ENTITY] v. State of Punjab, AIR 1981 P & H 19 (F.B.) a Full Bench of the Punjab and Haryana High Court after referring to the several decisions of the Supreme Court including the Division Bench decision of the same High Court in [ENTITY]'s case (2 supra) deliberately dealt with the provisions of [SECTION] of the old code and [SECTION] of the new Code. It was observed therein:
"For attracting the provisions of [SECTION] of the new Code, there are three pre-requisites".
(i) Offence should be described as in [SECTION] or punishable under [SECTION] or [SECTION] of the [ACT].
(ii) Such an offence should have been committed in respect of a document produced or given in evidence.
(iii) Such a production or giving in evidence of a document should be in a proceeding in any Court.
The provisions of [SECTION] of the new Code admit of two interpretations; one is the wider view, and the other a restricted or a narrow view. According to the wider view, the bar of this section would be applicable to all the cases involving the offences mentioned therein in respect of a document produced or given in evidence in court irrespective of the time when the offence was alleged to have been committed, while as per the restricted view, the bar of this clause would be attracted only if the offence is alleged to have been committed in respect of documents which are already produced or given in evidence and not to the offences committed earlier to the proceedings in Court. While dealing with [SECTION] of the new Code, the following positions can be arise:
(i) Cognizance of the offence taken by the Criminal Court in respect of a document which was never produced or given in evidence in a Court,
(ii) Cognizance taken by a Criminal Court the offence in respect of a forged document but produced or given in evidence in a proceeding in Court, subsequent thereto;
(iii) Cognizance of the offence taken by the Criminal Court in respect of and document which already stood produced or given in evidence in the proceedings in a court of law, but either -
(a) the offence was committed earlier to the commencement of proceedings in the court of law or production or giving in evidence of the document in a proceeding in court; or
(b) the offence was committed during the proceedings in the court. To the situations enumerated at (1) above the bar of the aforesaid clause of [SECTION] of the new Code would not obviously be attracted. As regards the situation mentioned in (ii) above, the bar of the aforesaid provision will also not be attracted because it is a well known principle of criminal procedure that cognizance once validly taken by a criminal court cannot normally be taken away or withdrawn.
The controversy is only with regard to Sub-clauses (a) and (b) of the situations mentioned in (iii) above. According to the wider view, the bar of [SECTION] of the new Code would be attracted, to both the clauses mentioned in (a) and (b) whereas as per the restricted view, this bar would come into play only regarding cases covered by Sub-clause (b) of the situation mentioned in (iii) above".
14. A Full Bench of the Allahabad High Court in [PRECEDENT] taking the narrow view interpreted the [SECTION] of the old Code applied only to these cases where were the offences mentioned in that section were committed by a party as such to a proceeding in any court in respect of a document, which had been produced on given evidence in such proceedings. The words committed by a party to any proceedings in Court" were held to mean "committed by a person, who was already a party to the proceedings ". It was further held in that case that an offence, which has already been committed by a person, who does not become a party till 30 years after the commission of the offence cannot be said to have been committed " by a party within the meaning of [SECTION] of the old Code.
15. The Supreme Court in [PRECEDENT] which is the basic judgment on this question firmly established the law in favour of a narrow view of the provisions of [SECTION] code and there are reasons for it. Under [SECTION] of the Code (new as well as old) a citizen has a right guaranteed under the criminal statute to bring the existence of facts amounting to an offence, under the law of the land, to the notice of the criminal courts functioning under the code, which have to take cognizance of that. [SECTION] of the new Code impose restrictions on that right of an individual; if the circumstances given under this section are found to exist. [SECTION] of the code is the rule and [SECTION] is the exception. The exception has to be strictly construed and has to be operated in narrow field. In [ENTITY]'s case ( 5 supra) the Allahabad High Court expressed the view that a segment. of cases is likely to be lift out of the purview of [SECTION] of the old Code. Similar view was expressed by the Gujarat High Court in [PRECEDENT] Ultimately the Punjab and Haryana High Court held:
"[SECTION] of the new Code envisaging bar against prosecution except on complaint of the Civil Court is limited in its operation only to the offences mentioned in that section if committed in regard to a document produced or given in evidence in such proceedings, while the document is in the custody of the court. It has no application to a case in which such a document is fabricated prior to its production or given in evidence. The deletion of the words " by a party to any proceedings in court" from [SECTION] of the old code which was the section corresponding to [SECTION] dos not go in favour of taking a wider view of [SECTION] of the new code. The restricted view is more in consonance with the scheme of [ACT] to provide harmonious interpretation and will not defeat or frustrate any other relevant provisions of the Code. [SECTION] and [SECTION] of the new Code form part of Statutory scheme dealing with the subject or prosecution for offences against the administration of justice and thus have to be read together to ascertain the intention of the legislature. The offence about which the court alone to the exclusion of the aggrieved party has jurisdiction to file compliant in respect of an offence should have a reasonably close nexus with the proceedings in court, so that it can satisfactorily consider by reference principally to its record the expediency of prosecuting the delinquent person. The court while embarking upon an enquiry under [SECTION] should not act as an investigating agency as it would be impracticable for the Court to decide about the expediency of launching of prosecution in respect of forgeries committed earlier to the proceedings initiated in that Court".
16. Therefore, [SECTION] new code is limited in its operation only to the offences mentioned in this section if committed in regard to a document produced or given in evidence in such proceedings, while the document is in the custody of the court. Where a suit has been filed basing on a document and the same has been withdrawn by the leave of the Court in spite of the objections of the defendent in the written statement about the genuineness of the document and where an opportunity has not been given to decide about the genuineness of the document that has been filed in the Court which is alleged to have been fabricated prior to its production, this Court feels, following the observations made in [ENTITY]'s case (2 supra) by the Supreme Court and also in [ENTITY]'s case ( 4 supra ) by the Full Bench of the Punjab and Haryana High Court, that the permission of the Court or a complaint by the Court is not necessary in cases where the document is said to have been fabricated prior to its production or given in evidence.
17. In the result the [CASE NUMBER] is accordingly allowed.