Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. MMO No.81 of 2003. Dated of Decision: July 10, 2008. --------------------------------------------------------------------------------------------------- Munshi Ram …… Petitioner. Versus Shyam Lal and others. ……. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Petitioner : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. R.K. Gautam, Sr. Advocate with Mr. Nimish Gupta, Advocate. Surinder Singh,J (oral) : The learned Sessions Judge vide his order passed in Criminal Revision Petition No.21 of 2002, decided on 12.8.2003 has affirmed the order passed by the learned Judicial Magistrate Ist Class, Bilaspur dated 25.3.2002 in Criminal Case No.75/2 of 2001 and the instant petition has been filed for quashing the orders passed by both the courts below, on the ground that the complaint filed by the petitioner herein was wrongly dismissed by applying the provisions of Section 195 of the Code of Criminal Procedure. The brief facts giving rise to the present petition are that Shyam Lal is the real brother of the present petitioner. It is alleged in the complaint filed before the learned trial court that respondent No.1 Shyam Lal fabricated a Will dated 18.6.1985 of his father Ram Dass in his favour in collusion with respondents No.2 to 4 claiming the entire property to the exclusion of the petitioner. The petitioner had - 2 - filed the suit before learned Sub Judge challenging the Will, his suit was decreed holding the Will to be not valid. The respondent filed the appeal which was dismissed, even Regular Second Appeal filed by him was also dismissed on 25th June, 1999 by the High Court. On 20.2.2001, Shri Munshi Ram, the brother of Shyam Lal filed a complaint in the court of learned Chief Judicial Magistrate, BIlaspur against the respondents under Sections 467, 471, 474 and 120-B of the Indian Penal Code alleging therein that the said Will was a forged document and was prepared by the respondents with an intention to use it as a genuine document, knowing-fully well that Ram Dass had never executed any such document, whereas he has reasons to believe that the Will aforesaid was a forged document. The learned Judicial Magistrate Ist Class, Bilaspur vide his order dated 25.3.2002 held that in view of provisions of Sections 195 (1)(b) of the Code of Criminal Procedure, the complaint was not maintainable at the instance of the petitioner and there was no request made to the court to make the complaint, as such the complaint was dismissed even before recording the preliminary evidence. This order was assailed by the petitioner in Criminal Revision No.21 of 2002, the learned Sessions Judge vide his detailed order dated 12th August, 2003 upheld the aforesaid order, which has now been assailed in this petition, it being wrong and illegal. I have heard the learned counsel for the parties and have gone through the record in meticulous details. In para 4 of the complaint, it is alleged by the petitioner that the Will was forged and fabricated before the filing of the civil suit before the civil court whereas the courts below held that this petition - 3 - was not maintainable in relation to the document, which was filed in the court and it was the court alone which could have initiated the proceeding against the respondents. Further the civil court held the Will as not valid and there was no finding that it was a forged and fabricated document, therefore, complaint filed by the petitioner was hit by the provisions of Section 195 of the Code. Section 195 (1)(b)(ii) Cr.PC, 1973, says that no court shall take cognizance of an offence relating to forgery of a document, 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, except on the complaint in writing of that court, or of some other court to which that court is subordinate. But this bar is not applicable to a case where forgery of the document was committed, before the document was produced in the court. In fact, Section 195 (1) Cr.P.C. contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or given in evidence in a proceeding in any court. In Iqbal Singh Marwah and another vs. Meenakshi Marwah and another. [(2005)4 Supreme Court Cases 370] the Constitution Bench of the Supreme Court has elaborately dealt the matter. The Apex Court observed that the scheme of clauses (a) and (b) (i) of Section 195(1) being that the offence described therein 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 and held that 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 - 4 - 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 in this clause has already been committed earlier and later on the document is produced or is given in evidence in court or when the document is in custodia legis, 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. In the present case, the forgery is alleged to have been committed with respect to the Will in question prior to the filing of the suit in the civil court, therefore, the view taken by the Courts below is wrong, accordingly the petition is allowed. Consequently, both the orders passed by the learned Judicial Magistrate and the learned Sessions Judge dated 05.03.2002 and 12.8.2003 respectively are set-aside. The complaint No: Cr. Case No.75/2 of 2001 titled Munshi Ram v. Shyma Lal and others is remanded back to the learned Chief Judicial Magistrate, Bilaspur, for recording preliminary evidence on a date to be fixed by him and thereafter decide the matter in accordance with law. The petitioner is hereby directed to be present before the learned trial court on 18th August, 2008. Record of the courts below be returned forthwith. The petition is accordingly disposed of. July 10, 2008. (Surinder Singh) (Pds) Judge.