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Criminal Revision No. 492 of 1964, decided on 24th April 1967.

Ss. 195(1)(c) & S. 476‑Document, forgery of‑Offence not cognizable except on complaint in writing by Court concerned‑Will forged produced before District Judge‑Conviction in absence of complaint by such Judge, held bad in law and set aside‑Hariram Onkar and others v. Mst. Radha A I R 1943 Nag. 327 ref.

S. 195(1)(c) Applicability‑Necessary conditions : (i) Offence should be com mitted by party to proceedings in Court and (ii) in respect of document produced in such proceedings.

M. A. Muttalib for Appellant.

B. N. Chowdhury for the State.

This appeal is directed against the convictions of appellant Hrishikesh Dutta under sections 467/109 and 467/471, P. P. C. and sentences of rigorous imprisonment for six years and live years respectively as passed by Mr. A. R. Khan, Assistant Sessions Judge, Pabna.

2. The prosecution case in a nutshell is that Devendra Nath Roy and Nagendra Nath Roy who were two full brothers owned and possessed a pucca residential building with some kutcha huts in Dilalpur area of the Pabna town. In the early part of Aswin, 1366 B. S. Devendra suddenly fell a victim to para lysis of one side of his body and he lost power of speech. Appellant Hrishikesh Dutta who was a shrewd clerk of a pleader came to live in Devendra's house with his family on the pretext of looking after him. One night the appellant took the thumb‑impressions of Devendra in his unconscious state on a blank paper, this was detected and the paper was destroyed. As Devendra's condition deteriorated he went away to India for treatment in Kartick, 1366 B. S. and ultimately died there. The aforesaid house of Devendra was put to auction in execution of a certificate for arrears of rent and was purchased by Mr. Kafiluddin Ahmed, the complainant in this case. Subsequently the complainant learnt to his dismay that the appellant had forged a will in respect of Devendra's house and by fraudulently and dishonestly using it as a genuine document obtained probate of it in the Court of the District Judge in 1961. The complainant submitted a written complaint to the D. S. P., Anti‑Corruption Branch, Pabna on 24‑5‑63. A case was accordingly started against the appellant and he was finally charge‑sheeted. A preliminary inquiry was held by a 1st Class Magistrate who eventually committed the appellant to the Court of Sessions to stand his trial there. In the trial that followed the learned Assistant Sessions Judge, Pabna, convicted and sentenced the appellant as stated at the outset.

3. In view of the order we are going to pass in this appeal, it is not necessary to traverse the evidence and circumstances appearing against the appellant in this case.

4. The learned Advocate for the appellant has raised a preliminary objection and contended that the convictions in the present case are bad in law. He has assailed the convictions on the ground that the trial Court had no jurisdiction to try the appellant inasmuch as it was essential that a complaint should have been lodged by the Court in or in relation to which the offence of forgery was committed.

5. It is that very prosecution case that the appellant forged the will in question and produced it in the Court of the District Judge from which he obtained a probate on the basis of the will. Section 195 (1) (c) runs as follows: -----

"195 (1) No Court shall take cognizance ---

(c) of any offence described in section 463 or punishable under section 471, 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate".

6. Section 476 of the Criminal Procedure Code lays down that when any Civil, Revenue or Criminal Court is of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in section 195 (1) (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make complaint thereof in writing signed by the Presiding Officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction. It is abundantly clear from a close reading of section 195 (1) (c) and section 476 of the Code of Criminal Procedure that where an offence appears to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding no Court shall take a cognizance except on the complaint in writing of the Court concerned or some other Court to which it is subordinate. The conditions necessary for the applicability of section 195 (1) (c) of the Code are: ----

(i) the offence mentioned should be committed by a party to the proceeding in court; and

(ii) such offence should be in respect of a document produced or given in evidence in such proceeding.

7. All the High Courts are unanimous in holding that when a forged document is brought into Court, private complaints subsequent to this are not maintainable. It was held by Bose, J. of the Nagpur High Court in the case of Hariram Onkar and others v. Mtt. Radha (A I R 1943 Nag. 327):

"All the High Courts are now agreed that once forged docu ment is brought into Court, then private complaints subsequent to this are barred by section 195 even in respect of anterior forgeries ‑anterior that is to the litigation".

8. It is the very case of the prosecution that the appellant not only forged the document in question, namely, the will but also produced it before the District Judge of Pabna and as a C matter of fact obtained probate thereon.

9. Mr. B. N. Chowdhury the learned Advocate appearing for the state, was constrained to admit that the convictions in this case are bad in law inasmuch as the trial Court had no jurisdic tion in the absence of a complaint from the Court of the District Judge where the questioned document was produced for obtaining probate.

In view of the above, findings, the appeal is allowed and the convictions and sentences of the appellant are set aside. It is directed that the appellant be set at liberty at once, if not wanted otherwise any other connection.

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