( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 849 OF 2009 Prabhakar s/o. Ramchandra Patki .. Petitioner Age. 53 years, Occ. Service as Chief Officer, Municipal Council, Vengurla, Tal. Vengurla, Dist. Sindhudurg. Versus 1. The State of Maharashtra .. Respondents 2. Yadavrao s/o. Mukundrao Nemaniwar Age. 66 years, Occ. Business, R/o. Yelmapura, Tal. Kinwat, Dist. Nanded. Shri P.V. Mandlik, Sr. Advocate i/b. Adv. Shri A.S. Gandhi, Advocate for the petitioner. Mrs. B.R. Khekale, A.P.P. for respondent No.1. Shri S.M. Vibhute, Advocate for respondent No.2. CORAM : P.R. BORKAR,J. DATED : 28.01.2010 ORAL JUDGMENT :- 1. This is a writ petition preferred by the original accused/revision petitioner against whom the order of issuance of process was passed by the learned Judicial ( 2 ) Magistrate, First Class, Kinwat in S.C.C. No. 81 of 2008 for committing offences punishable under sections 193 and 199 of the Indian Penal Code (For short “I.P.C.”). Said order dated 01.08.2008 is further confirmed in Criminal Revision No. 163 of 2008 decided on 14.08.2009 by the Sessions Judge, Nanded. 2. Briefly stated facts giving rise to this petition may be stated as below :- . Present respondent No.2 – Yadavrao Nemaniwar was the complainant. It is stated that the complainant/respondent No.2 was Vice President of the Municipal Council, Kinwat; whereas the petitioner/accused was working as a Chief Officer of the Municipal Council, Kinwat between March, 2006 to August, 2007. Thereafter, the petitioner was transferred as Chief Officer to Vengurla, Dist. Sindhudurg. Regular Civil Suit No. 48 of 2007 was filed by Samgayani – daughter of Yadavrao Nemaniwar (complainant/respondent No.2) against the present petitioner seeking perpetual injunction restraining him from demolishing property of said Samgayani. The suit was fixed on 26.07.2007 for filing written statement. However, since the petitioner/defendant in that suit was ( 3 ) absent, an order was passed to proceed the suit without written statement. Thereafter, on 30.07.2007, the petitioner filed application Exh.14 in Regular Civil Suit No. 48 of 2007 along with affidavit dated 30.07.2007 (Exh.15) stating therein that on 26.07.2007, he could not file written statement as he was at Aurangabad to attend High Court and prayed for setting aside the order of proceeding the suit without written statement passed on 26.07.2007. The Court was pleased to set aside the order of proceeding the suit without written statement. It is stated that the statement that on 26.07.2007 the petitioner was at Aurangabad for attending High Court, was a false statement and in the circumstances he committed the offences. 3. The learned Magistrate recorded verification of present respondent No.2 on 01.08.2008 and passed order as follows :- “The complainant has made out prima facie case to issue process u/s 193 and 199 of IPC. Hence issue process against accused u/s 193 & 199 of IPC.” ( 4 ) 4. Present petitioner filed Criminal Revision No. 163 of 2008 in the Sessions Court, Nanded, challenging the order of issuance of process. The main challenge was that respondent No.2 had no locus standi and cognizance could not have been taken of the offence, as the complaint was not filed as required by section 195 (1) (b) (i) of the Code of Criminal Procedure (Cr.P.C). The learned Sessions Judge relying upon case of Iqbal Singh Marwah and anr. V/s. Meenakshi Marwah and ors, AIR 2005, S.C. 2119, rejected the Criminal Revision. Against the same this writ petition is filed. 5. Heard Sr. Advocate Shri P.V. Mandlik i/b. Adv. Shri A.S. Gandhi for the petitioner, A.P.P. Mrs. B.R. Khekale for respondent No.1/State and Adv. Shri S.M. Vibhute for respondent No.2. 6. Rule. Rule made returnable forthwith. With consent of the learned advocates appearing for the parties, the matter is taken up for final hearing immediately. 7. In this case what is alleged is that in the ( 5 ) application Exh.14 and affidavit Exh.15, copies of which are enclosed with the petition, it is falsely mentioned by the petitioner that on 26.07.2007, which was earlier date fixed, he could not file written statement as he was at Aurangabad, to attend High Court. According to respondent No.2, this was false statement and therefore offences under sections 193 and 199 of the I.P.C. are committed. Order on application Exh.14 clearly shows that the Court was pleased to set aside the order of “No W.S.” and written statement was accepted. Section 193 and 199 of the I.P.C. are as follows:- “S.193. Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extent to three years, and shall also be liable to fine. S.199. Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false ( 6 ) or does not believe to be true, touching any point material to the object for which the declaration is made or used shall be punished in the same manner as if he gave false evidence.” 8. It is also argued by Sr. Adv. Shri Mandlik that in this case, the stage was of acceptance of written statement and no evidence was given or recorded. The affidavit was just in support of Exh.14 and in strict sense it was not a part of oral evidence or deposition and therefore section 193 of the I.P.C. is not attracted. It is not said that the affidavit is not signed by the petitioner or the petitioner signed the affidavit or application in the name of some one else. It is not a case of giving false evidence or fabricating false evidence. So, it is argued that section 193 of the I.P.C. is not attracted. I may refer to section 464 of I.P.C. and reproduce it for ready reference to show that what is meant by making false document :- “S.464. Making a false document. - A person is said to make a false document or false electronic record - First.- Who dishonestly or fraudulently - (a) makes, signs, seals or executes a document or part of a document; ( 7 ) (b) makes or transmit any electronic record or part of any electronic record; (c) affixes any electronic signature or any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly – Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly – Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record to affix his electronic signature or any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.” . So, it is argued and I agree that offence under section 193 of I.P.C. is not made out. ( 8 ) 9. The learned advocate for respondent No.2 stated that offence under section 199 of I.P.C. is committed because false declaration was made in the affidavit that the petitioner was at Aurangabad and therefore he could not file written statement on 26.07.2007. As per section 199 of I.P.C. the declaration made or subscribed to the accused is to be received as evidence of any fact and in that angle the affidavit was accepted in as much as the Court believed the statement made by the petitioner that he had been to Aurangabad on 26.07.2009 and as such was unable to file written statement. So, prima facie we can say that there is the material for issuing process for the offence punishable under section 199 of I.P.C., though the petitioner is very much disputing the allegation that it was false affidavit. The main question is whether the Court could have taken cognizance of offence punishable under section 193 or 199 of I.P.C., in view of Section 195 of Cr.P.C.. I quote section 195 (1) of Cr.P.C., which is as under :- “195 (1) No Court shall take cognizance - (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or ( 9 ) (ii) of any abetment of, or 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 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 by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. x x x x x x x x“ 10. The learned advocate for respondent No.2 Shri Vibhute drew my attention to the case of Iqbal Singh Marwah (Supra). In that case as para 2 indicates the Court was called upon to resolve conflict of opinion between two ( 10 ) decisions of the Supreme Court, each rendered by Bench of three Judges in Surjit Singh V/s. Balbir singh, 1996 (3) SCC 533 and Sachida Nand Singh V/s. State of Bihar, 1998 (2) SCC 493, regarding interpretation of section 195 (1) (b) (ii) of Cr.P.C. As stated in para 5 of Iqbal Singh Marwah (Supra) the principal controversy revolves round the interpretation of 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) of sub-section (1) of section 195 Cr.P.C. 11. In the case of Surjit Singh (Supra) it is observed that for taking cognizance of an offence, the document, the foundation of forgery, if produced before the Court or given in evidence, the bar of taking cognizance under section 195 (1) (b) (ii) gets attracted and the criminal court is prohibited from taking cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under section 340 of the Code by or on behalf of the Court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being ( 11 ) compelled or intimidated to proceed with the judicial process. 12. In the case of Sachida Nand Singh (Supra), scope envisaged by section 340 (1) of the Code to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis. In para 6 of the said case following observations are made :- “6. On a plain reading clause (b)(ii) of sub-section (1) of Section 195 is capable of two interpretations. One possible interpretation is that when an offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 IPC is alleged to have been committed in respect of a document which is subsequently produced or given in evidence in a proceeding in any Court, a complaint by the Court would be necessary. The other possible interpretation is that when a document has been produced or given in evidence in a proceeding in any Court and thereafter an offence described as aforesaid is committed in respect thereof, a complaint by the Court would be necessary. On this interpretation if the offence as described in the Section is committed prior to production or giving in evidence of the document in Court, no complaint by Court would be necessary and a private complaint would be ( 12 ) maintainable. The question which requires consideration is which of the two interpretations should be accepted having regard to the scheme of the Act and object sought to be achieved.” 13. After considering the entire position including earlier case-laws, the Supreme Court observed in para 25 of the said case as under:- “25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.” . Thus it is abundantly clear from above said discussion that the Court was discussing and interpreting section 195 (1) (b) (ii), particularly phrase ‘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’. 14. The learned advocate Shri Vibhute argued that in ( 13 ) this case the affidavit was prepared and then filed in the Court and therefore there is no bar in view of law laid down in the case of Iqbal Singh Marwah (Supra). Same line of argument was accepted by the learned Sessions Judge, Nanded in his judgment. If we consider section 195 (1) (b) (i), which is reproduced earlier, we do not find phrase ‘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’. It says that no Court shall take cognizance of any offence punishable under section 193 to 196, 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, except on the complaint in writing of that Court or by such officer of the Court as the Court may authorise in writing in this behalf or of some other Court to which that Court is sub-ordinate. In this case, question is not when the affidavit was signed or completed, question is not when the application was signed, whether it was signed inside the Court or outside the Court. Since the application Exh.14 and affidavit Exh.15 are filed in civil proceedings and it is alleged that the offence is committed in or in relation to making false statement during the course of civil ( 14 ) proceedings, in my considered opinion, bar of section 195 (1) (b) (i) of Cr.P.C. is attracted and therefore this writ petition must succeed. 15. In the result, the order of issuance of process passed by the Judicial Magistrate, First Class, Nanded, on 01.08.2008 in S.C.C. No. 81 of 2008 is hereby quashed and set aside. Similarly, the order passed by the Sessions Court in Criminal Revision No. 163 of 2008 dated 14.08.2009 stands set aside. 16. The Criminal Writ petition is accordingly allowed and rule made absolute. [P.R. BORKAR,J.] snk/2010/JAN10/crwp849.09