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Criminal Reference No. 110 of 1973, decided on 17th May 1974.

Ss. 195 & 476‑Complaint by Court‑Accused alleged to have forged documents obtained from him and utilised same during judicial proceedings in civil Court for obtaining a decree in favour of co‑accus ed‑Connection that documents having been forged earlier than time of actual use, provisions of S. 195 not applicable‑Held: Documents, even though forged before institution of suit, bar contained in S. 195(1)(c) operative with equal force if documents subsequently used in judicial proceedings.

The allegation in the complaint is that earlier to the institution of the suit by accused the complainant had been made to sign some documents under such circumstances as render the documents forged within the meaning of the provisions of Penal Code in regard to forgery of documents. However, even though the documents were forged before the institution of the suit, the bar under section 195(1)(c) will operate with equal force if the same documents are subsequently used in judicial proceedings.

The question of applicability of section 195(1)(c), Cr. P. C. has to be considered not in relation to the time of preparation of the forged document but to the time of its use. In case the document is used in a Court for any purpose the avenues for private prosecution get for bidden and only the Court before which the document was produced and used or sought to be used can prosecute the maker ‑of such forged document or the person using such document.

On a conjoint reading of sections 195(1)(c) and 476. Cr. P. C. the conclusion is inescapable that when documents are forged for use in judicial proceedings a complaint at the instance of a private party would be barred in case the documents are used.

In re: K. Parameswara Nambudri A I R 1916 Mad. 72; Superintendent and Remembrancer of Legal Affairs v. Biswambhar Brahmin and another A I R 1929 Cal. 633; Indrachand Bachray v. Emperor A I R 1932 Dom. 185; Emperor v. Nabibux Khairmahomed Kolachi A I R 1940 Sind 209; Hariram Onkar and others v. Mst. Radha A I R 1943 Nag. 327 and Hrishikesh Dutta v. The State 1969 P Cr. L J 241 rel.

Assistant Advocate‑General for the State.

Diwan Bashir Ahmad for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 14th May 1974.

The present reference has been made by the V Additional Sessions Judge, Karachi, whereby he has made a recommendation that a complaint filed by Muhammad Akram (hereinafter referred to as the complainant) against S. Ali Hussain and Taufiq Ahmad Khan (hereinafter referred to as the accused) may be quashed. Mr. Usman Ghani Rashid has appeared before me in support of the reference and while accused S. Ali Hussain has been represented by Mr. Diwan Bashir Ahmad, complainant Muhammad Akram and accused Taufiq Ahmad Khan have remained absent.

2. Briefly stated the facts of the case are that complainant Muhammad Akram filed a complaint against the two accused S. Ali Hussain and Taufiq Ahmad Khan in the Court of the Additional City Magistrate, Karachi, under sections 468 and 471 read with sections 34 and 120‑B, P. P. C. alleging that the complainant was the joint owner of a house in Federal "B" Area, Karachi, a portion whereof was let out on rent to accused Ali Hussain. The Karachi Development Authority had given a notice to the complainant asking him to demolish the un-authorised construction in the house and accused S. Ali Hussain approached him stating that he had influence with the said Authority and would get the same notice vacated. It is then stated that accused S. Ali Hussain obtained the copies of allotment order, Excise and Taxation Department papers and approved plans from the complainant. After obtaining the said papers accused S. Ali Hussain made the complainant to sign some applications, affidavits, a letter of authority and a vakalatnama. The allegation of the complainant is that he was asked to deliver or sign the papers for the purpose of engaging an Advocate to contest the notice issued by Karachi Development Authority in like manner some documents are alleged to have been obtained from a sister of the complainant who is also a co‑owner of the house in question. The complainant further states that accused Ali Hussain then filed a suit against the complainant in the Court of the IX Civil Judge, First Class, Karachi. Although a copy of the plaint is not on the record, the other documents indicate that the suit was filed on the basis of the said documents seeking a declaration that accused S. Ali Hussain was the owner of the house in question. The grievance of the complainant was that on the basis of the documents fraudulently obtained by the accused a compromise decree was obtained by accused S. Ali Hussain from the civil Court and in such proceedings accused Taufiq Ahmad not only personated as complainant but even signed the compromise application.

3. The complainant on coming to know of the decree moved the Court of the Civil Judge for setting aside the ex parte decree and the order of reference by the Additional Sessions Judge further indicates that a comp lainant had made an application before the Civil Judge under section 476, Cr. P. C. Such applications are stated to be pending.

In the meantime the complaint which is sought to be quashed was filed to the Court of the Magistrate.

4. Accused Ali Hussain made an application before the Magistrate purporting to be one under section 253, Cr. P. C. seeking discharge on the ground that the documents alleged to have been forged having been used in judicial proceedings in the Court of Civil Judge, complaint could be filed only by the civil Court by reason of the bar contained in section 195(1)(c) of the Code of Criminal Procedure. This application was dismissed by the Magistrate on 16‑2‑1973 by the following order:

"From the evidence so far brought on record it appears that the accused pare responsible for committing forgery. The accused were issued notice at the time of holding the P. E. and allowed chance to suggest the questions to the Court. The accused could raise the point shown in that application at the time of holding the P. E. However, the accused can cross‑examine the P. Ws. and disprove the allegations when the case proceeds regularly. For the present the objections filed by the accused are overruled. The case should proceed accordingly."

Accused Ali Hussain filed a revision application before the Court of Sessions at Karachi, which was heard by the V Additional Sessions Judge, Karachi, who has made the present reference recommending quashment of the proceedings.

5. On a perusal of the complaint it is abundantly clear that the allega tion of the complainant is that the accused forged the documents in question and utilized the same during judicial proceedings in the civil Court for obtaining a decree in favour of accused Ali Hussain. The question that then arises is whether the present complaint instituted by the complainant is maintainable in view of the provisions of section 195(1)(c), in spite of the documents having been forged at a time earlier than the time of actual use of such documents.

6. Section 195(1)(c) of the Criminal Procedure Code states as follows:

"Section 195.‑(1) No Court shall take cognizance‑

(c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any pro ceeding 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."

It will be of benefit to keep in mind the provisions of section 476, Cr. P. C. which are corresponding procedural provisions governing the pro ceedings anterior to the filing of the complaint under section 476, Cr. P. C. any Civil, Revenue or Criminal Court on an application being made to it or otherwise, coming to the conclusion that it is expedient in the interests of justice to file a complaint in respect of offence enumerated in sec tion 195(1)(b) or (c) may record a finding that an offence appears to have been committed in or m relation to a proceeding in that Court and file or cause to be filed a complaint in a competent Court.

On a consideration of the provisions of sections 395 and 476 of the Code of Criminal Procedure it would appear that if any offence stated in section 195(1)(c), Cr. P. C. appears to have been committed "in or in relation to" a proceeding in a Court, such Court can act under section 476, Cr. P. C. and after recording a finding that an offence appears to have been committed file a complaint or direct the filing of a complaint. On the other hand section 195, Cr. P. C. clearly bars the entertain ment of a complaint except at the instance of the Court, in proceedings before which Court the offence is committed. The bar, it would thus seem, is complete.

7. In the present case the allegation in the complaint is that earlier, to the institution of the suit by accused Ali Hussain, the complainant had been made to sign some documents under such circumstances as render' the documents forged within the meaning of the provisions of Penal Code in regard to forgery of documents. However, even though the documents were forged before the institution of the suit, the bar under section 195 (1)(c) will operate with equal force if the same documents are subsequently used in judicial proceedings. To such extent the position in law is well settled and it would be of benefit to refer to a few reported cases.

In the case In re: K. Parameswara Nambudri (A I R 1916 Mad. 72), an endorsement had been made on a promote executed in favour of the complainant denoting repayment. The learned Judges of the Division Bench were dealing with the effect of section 195 (1)(b), Cr. P. Code which is the parallel provision to section 195 (1)(c), Cr. P. C. but the principles underlying both the sub sections being the same, it is safe to rely on the judgment. The point canvassed before the learned Judges was that since the document had been fabricated before the institution of proceedings the protection under section 195 (1)(b), Cr. P. Code was not available. Ayling, J. repelled such a contention in the following words:

"Object of this clause of the section seems to be to save the time of criminal Courts being wasted, and accused persons being needlessly harassed, by erecting a safeguard against rash, baseless, or vexatious prosecution for the offences specified. It aims at doing so by pro viding that where, prior to the institution of the criminal prosecu tion, a properly constituted judicial Tribunal has placed itself in a position to determine whether the facts constituting the offence really exist, the criminal Court should decline cognizance unless that Tribunal has in effect, certified that, in its opinion, the complaint, is one worthy of investigation. I see no reason why this safeguard should be limited to cases where the offence is committed pendente lite; and should not extend to cases of fabrication of false evidence in advance. Its desirability is just as great in the one case as in the other."

In this same case Tyabji, J. while agreeing with Ayling, J. drew a distinction between such cases where complaint was filed by private party before the institution of the proceedings in or in relation to which the fabricated evidence was used, and stated that such earlier pro ceedings, if pending, would not be hit by the provisions of section 195, Cr. P. C.

In the case of Superintendent and Remembrancer of Legal A fairs v. Biswambhar Brahmin and another (A I R 1929 Cal. 633) a Division Bench of Suhrwardy and Graham, JJ. dealt with the situation where the private complainant had filed a complaint before the institution of the suit in relation to the proceedings in which the forged document was intended to be used. The complaint being anterior to the time of use of the forged document, the learned Judges came to the conclusion that the complaint was not barred by section 195, Cr. P. C. It would seem that the principle enunciated in this case was at par with the statement of law by Tyabji, J. in the 'case reported in A I R 1916 Mad. 73.

In the case of Indrachand Bachray v. Emperor (A I R 1932 Bom. 185) Beaumont, C. J. also considered the position in regard to fabrication having been made before the institution of proceedings on the basis of fabricated evidence. The learned Chief Justice held the view that for attracting the provisions of section 195, Cr. P. C. the crucial point of time is not the date of fabrication but the date of the taking of cognizance by the Court. It would be of benefit to reproduce a passage from the judgment, which runs as follows:

"Although for the purpose of determining whether an offence has been committed under section 193, I. P. C., the crucial date is the date on which the offence was committed, yet, for the purpose of seeing whether complaint by the Court is necessary under section 195, Criminal P. C., the crucial date is not the date when the offence is committed, but the date when the Court takes cognizance of the offence."

A Division Bench of Lobo and O' Sullivan, JJ. in the case of Emperor v. Nabi Bux Khair Muhammad Kolachi (A I R 1940 Sind 209), relied on the Bombay case and observed that the words "in relation to" as used in section 195(1)(6), Cr. P. C. are sufficiently wide to cover cases where the offence alleged was committed in relation to a proceeding subsequently instituted in Court. No doubt this too was a case under section 195(1)(6), Cr. P. C. which refers to acts "in or in relation to" any proceedings but as stated above the principle in section 195(1)(c) is also the same because the latter provision also speaks of use of the document in the proceedings and preparation of such document has as of necessity to precede its use in Court.

Bose, J. in the case of Hartram Onkar and others v. Mst. Radha (A I R 1943 Nag. 327) relying on the case of Parameswara Nambudri considered the point of use of forged documents and observed as follows:

"All the High Courts are now agreed that once a forged document 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."

A Division Bench of the Dacca High Court in the case of Hrishikesh Dutta v. The State (1969 P Cr. L J 241), quoted the above passage from the judgment of Bose, J. with approval and came to the conclusion that in cases of use of forged documents in proceedings before a Court, it is immaterial that forgery was committed before the actual use of the document in Court; but if the document is used in a Court a complaint in regard to such forgery can be filed only by the Court before which the forged document was produced and used or sought to be used.

8. The upshot of the argument then is that the question of appli cability of section 195(1)(c), Cr. P. C. has to be considered not in relation to the time of preparation of the forged document but to the time of its use. In case the document is used in a Court for any purpose the avenues for private prosecution get forbidden and only the Court before which the document was produced and used or sought to be used can prosecute the maker of such forged document or the person using such document. Although the words "in or in relation to proceedings" as appearing in section 195(1)(6), Cr. P. C. do not find a place in section 195(1)(c), Cr. P. C. the omission is almost inconsequential. In any case section 476, Cr. P. C. clearly states that in cases where offences enumerated in clauses (b) and (c) of section 195(1), Cr. P. C. appear to have been committed "in or in relation to" a proceeding a complaint would be maintainable at the instance o the Court concerned. On a conjoint reading of sections 195(1)(c) and 476, Cr. P. C. the conclusion is inescapable that when documents are forged for use in a judicial proceedings a complaint at the instance of a private party would be barred in case the documents are used.

9. In the present case although the documents in question were prepared earlier than the institution of the suit: in proceedings whereof the documents were used, nevertheless complaint could be filed only by the Court concerned. In the result the reference is accepted and the proceedings in the complaint pending before the Additional City Magistrate, Karachi, are quashed. It is made clear that the present order will not bar any action that may be taken by the IX Civil Judge First Class, Karachi, before whom the suit was filed and documents in question are alleged to have been used. The order of reference states that an applica tion under section 476, Cr. P. C. is pending before the Civil Judge and if that is so, it shall be satisfactory if the same is disposed of on merits at an early date.

S. A. H.

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