VISHNU CHANDRU GAONKAR versus N.M. DESSAI
[2018] 3 S.C.R. 103, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Facts
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VISHNU CHANDRU GAONKAR
v.
N.M. DESSAI
(Criminal Appeal No.359 of 2018)
MARCH 06, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Code of Criminal Procedure, 1973: s. 195(1)(b)(ii) –
Prosecution under, for offence alleged to have been committed in
respect of document produced or given in evidence in a proceeding
in any court – On facts, application u/s. 195(1)(b)(ii) by appellant
making allegations against respondent-counsel for the opposite
party, that he committed offence in verifying and forging thumb
impression of dead appellant – Order of District and Sessions Judge
directing for filing a complaint u/s. 195(1)(b)(ii) – Set aside by the
High Court – On appeal, held: Where offences has already been
committed earlier and later on the document is produced or given
in the evidence in Court, the same is neither covered under Clauses
(a), (b)(i) or (b) (ii) – On facts, the High Court rightly held that
instant case is not where any complaint could have been proceeded
u/s. 195(1)(b)(ii).
Dismissing the appeal, the Court
HELD: 1.1 Appeal No. 91 of 2004 was filed by several
appellants, out of which one of the appellants was SMV, who died
on 02.03.2005. The application for withdrawal of the appeal was
filed on 18.07.2006. One of the respondents before the High
Court, took it upon herself to say that the thumb impression,
which was put as of ‘SMV’ was put by her, since her husband
‘SMV’ also used to sign along with her, in good faith, she put her
thumb impression. The
respondent came with the case that he
having been informed that talks of settlement amongst the
Gaonkars is going on and they are intending to withdraw the
execution application filed by them. He, as per instructions of his
client, drafted and handed over the application for withdrawing
the Appeal No. 91 of 2004 to one SK to obtain the signatures of
the remaining respondents. He further came with the case that
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he was not aware of death of SMV or alleged forged thumb
impression of SMV on the application. The facts fairly indicate
that the application when it was presented in the Court in Appeal
No. 91 of 2004 for withdrawal of the appeal, signatures/thumb
impressions of the appellants were already obtained on the said
application, which was handed over to the respondent in this
appeal for filing in the Court. On the same date, i.e., 18.07.2006,
the Court allowed the application permitting withdrawal of the
appeal. A Criminal Misc. Application No. 95 of 2007 for initiating
action under Section 195(1)(b)(ii) of Cr.P.C. was filed by the
appellant after the said withdrawal of the appeal. The application
was allowed by the District Judge where the District Judge had
directed for inquiry to be conducted in terms of Section
195(1)(b)(ii) of Cr.P.C. [Paras 7-9] [109-A-B, D]
1.2 The submission raised by the appellant is rejected due
to the reason that before the Session Court as well as before the
High Court, the appellant has alleged an offence under Section
195(1)(b)(ii). In the Application No. 95 of 2007 prayer was for
complaint to be made as per the provisions contemplated under
Section 195(1)(b)(ii) of Cr.P.C. Even the order of District Judge,
which was the basis in favour of the appellant on 31.07.2008 has
also directed for inquiry and initiating complaint in terms of Section
195(1)(b)(ii) of Cr.P.C. There being specific case
of the appellant
in his complaint as well as in order passed by the District Judge
in his favour, it is not open for the appellant to turn round and
claim that allegations are covered under Section 195(1)(b)(i). The
Constitution Bench in Iqbval Singh Marwah elaborately noticing
the statutory scheme under Section 195 has held that where
offences has already been committed earlier and later on the
document is produced or given in the evidence in Court, the
same is neither covered under Clauses (a), (b)(i) or (b) (ii).
[Para 15] [112-B-E]
1.3 The execution application, which was filed by the decree
holder was also withdrawn. The appeal, which was filed by
judgment debtor was withdrawn by judgment debtor, which in no
manner had impaired the interest of the appellant, who was legal
heir of decree holder. It is also on the record that legal heirs of
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the decree holders have also withdrawn their execution
application, which has attained finality. None of the appellants,
who had filed Appeal No.91 of 2004 before the High Court has
initiated any proceeding against the instant respondent who was
their advocate. It is only the appellant, who was respondent in
Appeal No.91 of 2004 has filed a complaint under Section 195.
The High Court having taken into consideration entire facts and
circumstances have rightly come to the conclusion that present
is not a case where any complaint could have been proceeded
under Section 195(1)(b)(ii) Cr. P.C. [Para 16] [113-F-H]
Iqbal Singh Marwah & Anr. v.. Meenakshi Marwah &
Anr. [2005] 2 SCR 708 : (2005) 4 SCC 370  –followed.
Sachida Nand Singh & Anr. v.. State of Bihar & Anr.
[1998] 1 SCR 492 : (1998) 2 SCC 493 ; Iqbal Singh
Marwah & Anr. v. Meenakshi Marwah & Anr. [2005] 2
SCR 708 : (2005) 4 SCC 370 ; Sachida Nand Singh &
Anr. v.. State of Bihar & Anr., [1998] 1 SCR 492 : (1998)
2 SCC 493 ; Surjit Singh & Ors. v.. Balbir Singh
[1996] 3 SCR 70 : (1996) 3 SCC 533 – referred to.
Case Law Reference
[1998] 1 SCR 492
  referred to
Para 3
[2005] 2 SCR 708
  referred to
Para 3
[1998] 1 SCR 492
  referred to
Para 11
[1996] 3 SCR 70
  referred to
Para 13
[2005] 2 SCR 708
  referred to
Para 13
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 359 of 2018.
From the Judgment and Orders dated 06.08.2009 and 06.10.2009
of the High Court of Judicature, Bombay at Goa in WP No. 1380
of
2009 and Crl. A. No. 22 of 2009.
Ms. Prachi Bajpai, Adv for the Appellant.
VISHNU CHANDRU GAONKAR v. N.M. DESSAI
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The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. This appeal has been filed
questioning the judgment and order dated 06.10.2009 of the High Court
of Bombay at Goa in Criminal Appeal No. 22 of 2009 by which judgment,
the criminal appeal filed by the respondent Shri Narayan M. Dessai has
been allowed setting aside the order of District & Sessions Judge dated
31.07.2008 directing for filing a complaint under Section 195(1)(b)(ii) of
Cr.P.C.
2. The facts which are necessary to be noted for deciding this
appeal are:-
A regular Civil Suit No. 4 of 1993 was filed by two plaintiffs
namely Laximan Rama Gaonkar and Janu Narayan Gaonkar
impleading two defendants namely Kusta Naga Gaonkar and Shri
Suresh Kust Gaonkar. The appellant in this appeal is legal heir of
original plaintiff No. 2, Janu Narayan Gaonkar.  The Suit No. 4 of
1993 was decreed by judgment and decree dated 07.12.2001.  An
application for execution of decree was filed by the legal heirs of
the plaintiffs on 07.12.2003.  Legal heirs of the original defendants
filed a Civil Appeal No. 91 of 2004 questioning the judgment and
decree dated 07.12.2001.  One of the appellants in Civil Appeal
No. 91 of 2004 namely Shaba Manju Velip (one of the legal heirs
of original defendants Kusta Naga Gaonkar) died on 02.03.2005.
No application to bring his legal heirs on record was filed by the
appellants.  The application to withdraw execution case No. 1 of
2003
filed for execution of the decree in Civil Suit No. 4 of 1993
was filed by the plaintiff’s advocate on 20.06.2006.  The application
for withdrawal of Civil Appeal No. 91 of 2004 was filed on
18.07.2006, which was allowed on 18.07.2006 itself.  The
Execution Case No. 01 of 2003 was also allowed to be withdrawn
on 21.07.2006.  On 29.11.2007, the appellant filed an application
under Section 195(1)(b)(ii) Cr.P.C. making allegations against the
respondent, who was counsel for the appellants in Civil Appeal
No. 91 of 2004 that he committed offence in verifying and forging
thumb impression of dead appellant namely Shaba Manju Velip.
By order dated 31.07.2008, learned District & Sessions Judge
found that it is a fit case for inquiry under Section 195(1)(b)(ii)
and directed for inquiry and registering a complaint under Section
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195(1)(b)(ii).  Respondent preferred an appeal before the High
Court against the order of District & Sessions Judge dated
31.07.2008.  The High Court vide its impugned judgment allowed
the appeal and quashed the order of the District Judge dated
31.07.2008 as well as the complaint filed pursuant thereto.
Aggrieved against the judgment of the High Court, the appellant
has filed this appeal.
3. Learned counsel for the appellant submitted that the High Court
relying on the Three Judge Bench judgment of this Court in Sachida
Nand Singh & Anr. Vs. State of Bihar & Anr., (1998) 2 SCC 493,
which has been approved by the Constitution Bench of this Court in
Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., (2005)
4 SCC 370, has allowed the appeal filed by the respondent whereas the
above judgments of this Court, wherein reference was made to Section
195(1)(b)(ii) Cr.P.C., which were not applicable in the facts of the present
case, since allegations made in the complaint filed by the appellant were
referable to Section 195(1)(b)(i).  It is submitted that the District &
Session Judge has rightly considered all facts and circumstances and
directed for filing of complaint against the respondents under Section
195(1)(b).  No one has appeared on behalf of the respondent in spite of
service.
4. We have considered the submissions of the learned counsel for
the parties and perused the records.
5. It is useful to extract Section 195(1) of Cr.P.C., which is to the
following effect:-
“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 Indian Penal Code (45 of 1860 ), or
(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;
VISHNU CHANDRU GAONKAR v. N.M. DESSAI
[ASHOK BHUSHAN, J.]
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(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 authorize in writing in
this behalf, or of some other Court to which that Court is
subordinate].
……………………………………………”
6. From the facts which are on the record, there is no dispute that
the Appeal No. 91 of 2004 was filed by several appellants, out of which
one of the appellants was Shaba Manju Velip, who died on 02.03.2005.
The application for withdrawal of the appeal was filed on 18.07.2006.  It
is further to be noted that one Vimal Shaba Velip, who was one of the
respondents before the High Court, took it upon herself to say that the
thumb impression, which was put as of Shaba Manju Velip was put by
her,
since her husband Shaba Manju Velip also used to sign along with
her, in good faith, she put her thumb impression.  The respondent N.M.
Dessai came with the case that he having been informed that talks of
settlement amongst the Gaonkars is going on and they are intending to
withdraw the execution application filed by them.  He, as per instructions
of his client, drafted and handed over the application for withdrawing
the Appeal No. 91 of 2004 to one Suresh K. Gaonkar to obtain the
signatures of the remaining respondents.  He further came with the
case that he was not aware of death of Shaba Manju Velip or alleged
forged thumb impression of Shaba Manju Velip on the application.
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7. The facts fairly indicate that the application when it was
presented in the Court in Appeal No. 91 of 2004 for withdrawal of the
appeal, signatures/thumb impressions of the appellants were already
obtained on the said application, which was handed over to the respondent
in this appeal for filing in the Court.  On the same date, i.e., 18.07.2006,
the Court allowed the application permitting withdrawal of the appeal.
8. A Criminal Misc. Application No. 95 of 2007 for initiating action
under Section 195(1)(b)(ii) of Cr.P.C. was filed by the appellant after
the said withdrawal of the appeal.  Copy of the Application No. 95 of
2007 has been filed as Annexure P-4.  It is useful to quote prayer in the
application, which is to the following effect:-
“The applicant therefore prays that in view of above an enquiry
may be conducted and the written complaint be made as per the
provision contemplated under Section 195(1)(b)(ii) of Criminal
Procedure Code in order to prosecute and take further action
against the respondents above as per the provision of law.”
9. The application was allowed by the District Judge vide order
dated 31.07.2008 where the District Judge had directed for inquiry to be
conducted in terms of Section 195(1)(b)(ii) of Cr.P.C., it is useful to
quote Paras 18 and 19 of the order of the District Judge, which is to the
following effect:-
“18. Though the respondent No.9 has canvassed that he was totally
unconnected with any of such transaction, such
a plea would not
lie in his mouth when he was representing the said appellants and
one of whom was Shaba, since deceased and instrumental in
seeking the withdrawal of the appeal also at his instance as late
as 18.7.2006 despite Shaba being dead on that day.  Therefore,
on the basis of the material on record, it is apparent that an offence
of forgery under Section 463 I.P.C. has allegedly been committed
to withdraw the appeal mis-representing the deceased as living
and the execution of the Sale Deeds in respect of the very same
property on the following day and a day thereafter.  The application
so filed in Court would be “a document” in the context of the
Evidence Act and evidence.
19. I am therefore satisfied that this is a fit case where inquiry is
required to be conducted in terms of Section 195(1)(b)(ii) of Cr.P.C.
and initiate complaint against the respondents for appropriate action
as per law.”
VISHNU CHANDRU GAONKAR v. N.M. DESSAI
[ASHOK BHUSHAN, J.]
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10. The two judgments of this Court, which has already been
noticed by the High Court needs detailed reference.
11. A Three Judge Bench of this Court in Sachida Nand Singh
& Anr. Vs. State of Bihar & Anr., (1998) 2 SCC 493 had occasion to
consider Section 195(1)(b)(ii) and Section 340(1) Cr.P.C.   Interpreting
Section 195(1)(b)(ii), following was laid down in Paras 8, 11 and 23:-
“8. That apart it is difficult to interpret Section 195(1)(b)(ii) as
containing a bar against initiation of prosecution proceedings merely
because the document concerned was produced in a court albeit
the act of forgery was perpetrated prior to its production in the
Court. Any such construction is likely to ensue unsavoury
consequences. For instance, if rank forgery of a valuable document
is detected and the forgerer is sure that he would imminently be
embroiled in prosecution proceedings he can simply get that
document produced in any long-drawn litigation which was either
instituted by himself or somebody else who can be influenced by
him and thereby pre-empt the prosecution for the entire long period
of pendency of that litigation. It is a settled proposition that if the
language of a legislation is capable of more than one interpretation,
the one which is capable of causing mischievous consequences
should be averted. Quoting from Gill v. Donald Humberstone &
Co. Ltd.5 Maxwell has stated in his treatise (Interpretation of
Statutes, 12th
Edn., p. 105) that “if the language is capable of
more than one interpretation we ought to discard the more natural
meaning if it leads to unreasonable result and adopt that
interpretation which leads to a reasonably practicable result”. The
clause which we are now considering contains enough indication
to show that the more natural meaning is that which leans in favour
of a strict construction, and hence the aforesaid observation is
eminently applicable here.
11. The scope of the preliminary enquiry envisaged in Section
340(1) of the Code is 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.
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23. The sequitur of the above discussion is that the bar contained
in Section 195(1)(b)(ii) of the Code is not applicable to a case
where forgery of the document was committed before the
document was produced in a court. Accordingly we dismiss this
appeal.”
12. It is also relevant to note that observations have been made
by this Court that forgery of a document if committed far outside the
precincts of the Court and long before its production in the Court, the
same cannot be treated as one affecting administration of justice.  In
Para 12, following has been held:-
“12. It would be a strained thinking that any offence involving
forgery of a document if committed far outside the precincts of
the Court and long before its production in the Court, could also
be treated as one affecting administration of justice merely because
that document later reached the court records.”
13. A contrary earlier view having expressed by another Three
Judge Bench in Surjit Singh & Ors. Vs. Balbir Singh, (1996) 3 SCC
533, being not in accord with the view expressed by this Court in Sachida
Nand Singh & Anr. Vs. State of Bihar & Anr. (supra), the same was
referred to a Constitution Bench for resolving the conflict.  The
Constitution Bench vide its judgment in Iqbal Singh Marwah & Anr.
Vs. Meenakshi Marwah & Anr., (2005) 4 SCC 370 has resolved
conflict and approved three Judge Bench judgment in Sachida Nand
Singh & Anr. Vs. State of Bihar & Anr. (supra).  In Para 33, following
was laid down:-
“33. 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) CrPC 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.”
14.  Learned counsel for the appellant before us has pressed only
one submission, i.e., the judgment of Constitution Bench in Iqbal Singh
Marwah (supra) was a case, which interpreted Section 195(1)(b)(ii),
to which there cannot be any dispute but present was a case of offence
VISHNU CHANDRU GAONKAR v. N.M. DESSAI
[ASHOK BHUSHAN, J.]
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under Section 195(1)(b)(i). Hence the Constitution Bench judgment of
this Court was not applicable and the High Court committed error in
relying on the Constitution Bench Judgment in Iqbal Singh Marwah
(supra).
15. The submission which has been raised by learned counsel for
the appellant before us has to be stated to be rejected due to the reason
that before the Session Court as well as before the High Court, the
appellant has alleged an offence under Section 195(1)(b)(ii).  A copy of
the Application No. 95 of 2007 has been annexed as Annexure P-4.
The prayer made therein as extracted above clearly prays for complaint
to be made as per the provisions contemplated under Section 195(1)(b)(ii)
of Cr.P.C.  Even the order of District Judge, which was the basis in
favour of the appellant on 31.07.2008 has also directed for inquiry and
initiating complaint in terms of Section 195(1)(b)(ii) of Cr.P.C., which
has also been extracted above for ready reference.  There being specific
case of the appellant in his complaint as well as in order passed by the
District Judge in his favour, it is not open for the appellant now to turn
round and claim that allegations are covered under Section 195(1)(b)(ii).
There is one more reason due to which the above submission cannot be
accepted.  The Constitution Bench elaborately noticing the statutory
scheme under Section 195 has held that where offences has already
been committed earlier and
later on the document is produced or given
in the evidence in Court, the same is neither covered under Clauses (a),
(b)(i) or (b) (ii).  In Para 10, Constitution Bench made following
observations:-
“10. The scheme of the statutory provision may now be examined.
Broadly, Section 195 CrPC deals with three distinct categories of
offences which have been described 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 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
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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 authorised
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 in this clause has
already been committed 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 CrPC. 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.”
16. It is further to be noted that the execution application, which
was filed by the decree holder was also withdrawn. It is further relevant
to notice that the appeal, which was filed by judgment debtor was
withdrawn by judgment debtor, which in no manner had impaired the
interest of the appellant, who was legal heir of decree holder.  It is also
on the record that legal heirs of the decree holders have also withdrawn
their execution application, which has attained finality.  None of the
appellants, who had filed Appeal No.91 of 2004 before the High Court
has initiated any proceeding against the present respondent N.M. Dessai,
who was their advocate.  It is only the appellant, who was respondent in
Appeal No.91 of 2004 has filed a complaint under Section 195.  The
High Court having taken into consideration entire facts and circumstances
have rightly come to the conclusion that present is not a case where any
complaint could have been proceeded under Section 195(1)(b)(ii) Cr.P.C.
VISHNU CHANDRU GAONKAR v. N.M. DESSAI
[ASHOK BHUSHAN, J.]

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17. We thus fully endorse the view of the High Court that present
is not a case where any complaint could have been proceeded with
under Section 195(1)(b)(ii).  We thus do not find any merit in this appeal
and the same is dismissed.
Nidhi Jain
                              Appeal dismissed.