CRIMINAL MISCELLANIOUS No.41322 OF 2005 ******* In the matter of an application under section 482 of the Code of Criminal Procedure. ******* AKSHAY LAL JHA-------------------------PETITIONER Versus 1. THE STATE OF BIHAR 2. Dr. BASANT SINGH --------------------OPP.PARTY ******* For the Petitioner : M/s Chandrashekhar & L.B. Singh For the State : Mr. Damodar Pd. Tiwary ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. None appeared on behalf of the complainant-opposite party no.2. 2. This is an application under section 482 of the Code of Criminal Procedure seeking quashing of order dated 10th January, 2005 passed in Complaint Case no. 2886 (C ) of 2004 pending in the Court of O.P. Pandey, Judicial Magistrate, 1st Class, Patna, taking 2 cognizance for the offence under Section 196, 209, 467, 468 and 471 of the Indian Penal Code and summoning the petitioner. 3. Relevant facts of this case is that opposite party no.2, a Medical Practitioner, by whom petitioner got his son treated. Subsequently, the petitioner lodged a complaint before State Consumer Forum alleging some negligence and laches committed by opposite party no.2 wherein some documents were filed to support the claim which he lost there. However, Appeal was filed to National Consumer Forum where also some additional documents were filed but the petitioner could not succeed. 4. Opposite party no.2 preferred the complaint before Chief Judicial Magistrate, Patna, on the ground that the petitioner, by filing some forged and fabricated documents unsuccessfully tried to take undue advantage and put the complainant under loss. The Complaint Petition was transferred to the court below where, after due enquiry, cognizance was taken. 5. The only ground assailing the impugned 3 order was taken by learned counsel for the petitioner is bar prescribed under Section 195 of the Code of Criminal Procedure which reads as such: “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 India Penal Code (45 of 1860), or (ii) of any abetment of, 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 section 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- 4 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 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 is situate: Provided that – (a) Where appeals lie to more than one Court, the appellate court or inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) Where appeals lie to a civil and also to a revenue court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” 6. The learned Additional Public Prosecutor, while supporting the order, submitted that undisputedly the documents involved were filed before 5 the Forum and after filing of the documents there is no allegation of commission of any forgery. Whatever allegation leveled by the complainant is that forged and fabricated documents were produced before the authorities in support of claim by the petitioner. In that view of the matter, bar under Section 195 of the Code of Criminal Procedure is not available to the petitioner had it been alleged that forgery were committed after filing of the documents before the authority, situation could have been different. The learned Additional Public Prosecutor, in support of his contentions placed reliance upon decision of the Supreme Court in the case of Iqbal Singh Marwah V. Meenakshi Marwah; (2005) 4 SCC 370 wherein in paragraph 10 the Apex Court has clearly held : “The scheme of the statutory provision may now be examined. Broadly, Section 195 Cr.P.C. deals with three distinct categories of offences which have been descried in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is –„Of contempts of the Lawful Authority of Public Servants‟. These are offences which directly 6 affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as – „Of False Evidence and Offences Against Public Justice‟. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression „ 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‟ occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the court. The situation or contingency where an offence as enumerated earlier and later on the document is produced or is given in evidence in court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the Scheme of Section 195 Cr.P.C. This indicates that Clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court.” 7. Similar view has also been taken by the Apex Court in its subsequent decision in the case of 7 Mahesh Chand Sharma V. State of U.P.; 2009 (4) BBCJ IV-299, wherein in paragraph 29 it is observed: “The law on the point is too well settled in the light of the above said two judgments of this Court that Section 195 (1)(b)(ii) of the Cr.P.C. contemplates a situation where offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court.” 8. In view of the above two decisions of the Apex Court now no confusion remains that in the instant case bar under Section 195 of the Code of Criminal Procedure is not applicable. Thus, finding no merit, this application is hereby dismissed without affecting right of the petitioner, if any, to agitate other factual and legal aspects relating to commission of offences at any appropriate stage of trial. (Akhilesh Chandra, J.) Patna High Court, The 01st September, 2010, AAhmad/(NAFR). 8