HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.7004 of 2009 O R D E R: The petitioner/A.1 is accused of offences punishable under Sections 193, 196, 198, 209, 420, 465, 471, 120-B, 149 IPC along with 10 others. Subject matter of this criminal case relates to proceedings in O.S.No.21 of 2000 on the file of Senior Civil Judge, Kadapa. It was a suit filed by A.2 to A.11 and another against 11 defendants for partition and other reliefs. The complainant/1st respondent is the 11th defendant in O.S.No.21 of 2000. It is stated that the 1st respondent is an Advocate. The petitioner/A.1 is an Advocate and he appeared as such for the plaintiffs in O.S.No.21 of 2000. By judgment dated 09.04.2007, the Senior Civil Judge, Kadapa passed decree in O.S.No.21 of 2000. It is stated that the said decree is questioned by the 1st respondent/D.11 in appellate Court and it is pending. Originally the 1st respondent filed complaint alleging the above offences against the petitioner and two others before the Chief Judicial Magistrate, Kadapa. But, the I Additional Judicial Magistrate of the First Class by order dated 12.04.2005 forwarded the complaint to the Station House Officer, I town Police Station, Kadapa under Section 156(3) Cr.P.C. for registration, investigation and report. After investigation, the police filed final report before the Magistrate referring the case as civil in nature. Thereupon, the 1st respondent filed protest complaint before the Magistrate. The Magistrate after recording sworn statement of the 1st respondent/complainant and two others took the case on file for the above offences against all the accused. The petitioner/A.1 approached this Court with this petition under Section 482 Cr.P.C. questioning the said order of the Magistrate taking cognizance of the above offences against him. It may be noticed that Section 149 IPC has no application to this case, as this is not a case of rioting. Grievance of the 1st respondent in the complaint is in respect of vakalat, plaint and municipal tax receipt marked as Ex.A.1 in the suit O.S.No.21 of 2000. It is alleged that A.1 and A.2 have created a fictitious partition suit and fabricated signatures of the plaintiffs 2 to 11 without their knowledge and consent and created fictitious plaint and vakalat and also created a rank forged document like house tax receipt. It is contended by the petitioner’s counsel that private complaint filed by the 1st respondent should not have been taken cognizance by the Magistrate. The petitioner’s counsel placed reliance on Section 195(1)(b)(ii) and (iii) Cr.P.C. For the sake of convenience, I reproduce the said provision herein: “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- (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.” On the other hand, it is contended by the 1st respondent’s counsel that the 1st respondent filed the private complaint before the Chief Judicial Magistrate who is the Senior Civil Judge himself and the said Court sent the complaint to the I Additional Judicial Magistrate of the First Class for taking appropriate action and the I Additional Judicial Magistrate of the First Class in turn forwarded the complaint to the police for investigation. It is contended for the 1st respondent that sending the complaint by the Chief Judicial Magistrate to the I Additional Judicial Magistrate of the First Class is sufficient compliance of Section 195(1)(b) Cr.P.C. As per Section 195(1)(b) Cr.P.C., the complaint has to be in writing of that Court or by such Officer of the Court as that Court may authorise in writing in this behalf. According to the 1st respondent, the offences were committed in Senior Civil Judge Court, Kadapa. Filing of complaint by the 1st respondent before the Chief Judicial Magistrate, Kadapa does not amount to moving that Court where the offence took place. The Court of Chief Judicial Magistrate, Kadapa and the Court of Senior Civil Judge, Kadapa are entirely two different Courts, though at that point of time, both the Courts were being manned by one and the same officer. Secondly, forwarding complaint filed by the 1st respondent by the Chief Judicial Magistrate to the I Additional Judicial Magistrate of the First Class, Kadapa will not amount to filing the complaint by that Magistrate himself. That is not contemplated under Section 195(1)(b) Cr.P.C. What is contemplated by 195(1)(b) is that the complaint should be in writing of that Court. Forwarding the complaint presented before the Chief Judicial Magistrate to the I Additional Judicial Magistrate of the First Class, will not also amount to authorising the I Additional Judicial Magistrate of the First Class as required under Section 195(1)(b) Cr.P.C. In case of any authorisation, it is the authorised Officer who should file the complaint in writing before the Magistrate. The authorised Officer cannot be the Magistrate himself who takes cognizance of the case for the above offences. Therefore, contention of the 1st respondent’s counsel in this regard is wholly untenable in law. Placing reliance on Iqbal Singh Marwah v Meenakshi Marwah[1] of the Supreme Court, it is contended by the 1st respondent’s counsel that in any event, Section 195 Cr.P.C. has no application to this case as the offences were not committed in a Court. But, the documents were fabricated or forged outside the Court prior to their presentation in Court. The Supreme Court while considering the offences in relation to forging or fabricating a Will, held: “the fact that the procedure for filing a complaint by Court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer to the legislative intent that the offence committed should be of such type which directly affects the administration of justice viz. which is committed after the document is produced or given in evidence in Court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in Court cannot, strictly speaking, be said to be an offence affecting the administration of justice”. In my considered opinion, the above finding of the Supreme Court is squarely applicable in relation to Ex.A.1 municipal tax receipt which is said to have been tampered. But, the said observations of the Supreme Court may not be applied to a case of the alleged forgery of signatures in vakalat and in plaint, inasmuch as the said allegation amounts to commission of the said offences in, or in relation to any proceedings in any Court occurring in Clause (i) of Section 195(1)(b) Cr.P.C. Simply because the alleged tampered house tax receipt Ex.A.1 in O.S.No.21 of 2000 was produced by the plaintiffs therein through their Advocate A.1, it cannot be said that the advocate has got any role in either tampering or fabricating the said document. This Court is of the opinion that it is nothing but sheer abuse of process of law for the 1st respondent to make allegations against his opponent Advocate in relation to a document produced by the parties in support of their contention. It is contended by the petitioner’s counsel that even though in the original complaint filed before the Chief Judicial Magistrate, there were only three persons named as accused persons, in the protest complaint, the 1st respondent has increased the numbers to 11 in an ingenerous manner. Since none of the newly added persons in the protest complaint is before this Court, it is unnecessary for this Court to entertain the said contention in this petition. It is sufficient to hold that Section 195(1)(b) is a bar for taking cognizance of the offences against A.1 by the Magistrate. In the result, the Criminal Petition is allowed quashing proceedings in C.C.No.38 of 2009 on the file of Special Judicial Magistrate of the First Class for Excise Cases, Kadapa insofar as the petitioner/A.1 is concerned. _______________________ SAMUDRALA GOVINDARAJULU,J Dt.20th December, 2011 PNV [1] 2005(4) Supreme Court Cases 370