PREETAM SINGH Vs. STATE

JUDGEMENT

(1.) This is a petition un der Section 482, Cr. P. C. with a prayer that proceedings pending in the Court of Addi tional Judicial Magistrate III Lakhimpur Kheri, may be quashed. The facts giving rise to this petition were that according to the allegations of the complaint, Harnaik Singh son of Darshan Singh, owned plot No. 1252, measuring 12. 6 Acres in village Bheers Pargana Shhor P. S. Bheers Distt. Kheri. Darshan Singh is said to have owned 2-1/2 Acres of land in the afore said village. Preetam Singh was said to be looking after the aforesaid land. Gurmali Singh, petitioner No. 2, in this case is son of Preetam Singh. Nirmal 'singh is this brother in law of the Preetam Singhi peti tioner No. 1. Nirmal Singh is the brother of Gurmali Singh and son of Preetam Singh and Kapoor Singh is said to be maternal cousin. The complaint was moved by Dharshan Singh against the petitioners with the allegation that Gurmali Singh on Octo ber 7, 1977 proclaiming himself as Harnaik Singh had executed a sale deed of the land, belonging to Harnaik Singh, in hig own favour in favour of his brother, his; brother Nirmal Singh. Gaya Singh and Gurmali Singh in achieving this object. A Mukhtar Nama was said to have been executed on October 7, 1977 by Gurmali Singh, proclaim ing himself as Harnaik Singh in favour of Preetam Singh of which witnesses were Gaya Singh and Kapoor Singhi. On the basis of the aforesaid Mukhtar Nama Preetam Singh moved a mutation petition and mutation were got effected on that basis. Complain ant Darshan Singh and his son Harnaik Singh used to reside in Punjab and they could not know those acts of the accused. Alongwithl this complaint Finger prints affected in the office of the Registrar were actually the thumb im pression of Gurmali Singh. The Magistrate took evidence under Sections 200 and 202, Cr. P. C. and thereafter summoned the ac cused petitioners under Sections 467, 468, 420 and 120, I. P. C. The allegations of the petitioners were that the sale deed was genuine, that against the mutation order an appeal was prefer red but it was dismissed, and thereafter a revision was preferred but that too was dis missed. It was further alleged that the complaint was filed three years after the execption of the sale deed and therefore it was barred by limitation. It was also urg ed that by virtue of Section 195, Cr. P. C. no cognizance could be taken upon a com plaint unless the same had been filed by A. C. O. , S. O C. or D. D. C. I have heard the learned counsel for the parties, First question is whether a cognizance could be taken upon a complaint filed by Darshian Singh father of Harnaik Singh Harnaik Singh himself is not the complain ant. In Garjraj Singh and others v. Emperor A. I. R. 1953 All 938, this very point was canvassed. Ganga Nath J. observed at page 938. "under Section 190, Criminal Proce dure Code a Magistrate may take cogniz ance of any offence (a) upon receiving a complaint of facts which constitutes such offence and (b) upon information received from any person other than police officer, or upon his own knowledge or suspicion that such offence has been committed. A complaint need not necessarily be made by the person injured, but may be made by any person aware of the offence. The rule is that if a general law is taken any person had a right to complain whether he himself has suffered any particular in jury or not. In 18 "all 465 (1) it was held that the complaint upon which a Magis trate may take cognizance of an offence may be made by any member of the pub lic acquainted with the facts of the case not necessarily by the person aggrieved by the offence to which the complaint; re lates. " The same view was held in the case of State of U. P. v. Banta Ram 1966 A. L. J. 7, by Hon'ble M. H. Beg, J. Calcutta High Court in Mouliva Basirulla v. Asadulla and others 30 Cr. L. J. 1929, observed at page 1014 that:- "there can be no question that a com plaint may be made by any person who knows about the commission of an offence and not necessarily by the injured party. The definition of 'complaint' in Section 4 of the Criminal Procedure Code supports the view accepted on several occasions. " Learned counsel relied upon Calcutta de cision in Chamru Sahu v. Emperor Cr. L. J. Vol. 13, to show that complaint could not be filed by any one except one who had personal know ledge of the matter. The facts of that case were however, different. In that case Government pleader had filed a complaint and the observation was that "the proceedings were commenced on the complaint of the Go vernment pleader who had no personal knowledge of the matters contained in the proceedings and that the judicial inquiry that wag made contained nothing substantial aga inst the two petitioners. " That being so that case stand a distinguishable. There can, therefore be no doubt that cognizance of the present complaint could be taken by the Magistrate though filed by Darshan Singh. As regards second point about bar of Section 195, Cr. P. C. it is significant to note that the allegations in the plaint were that the sale deed was executed fictitious in a forged manner showing as if it was executed by Harnaik Singh though actually some one else was the executant. It is true that later on mutation was effected by the consolidation authorities on the basis of the sale deed, but there could be no bar of Section 195, Cr. P. C. in view of the consistent view of the Supreme Court. In the case of Mohjan Lal and others v. The State of Rajasthan and another A. I. R. 1974 S. C. 299. A complaint was filed under Sections 464, 467, 468 and 471, I. P. C. alleging that "the ap pellant forged the will of one Khartu Ram, produced it before the Paywari and used it as a peace of evidence in support of their title to a land. . . . . . . . The parties seem to have proceeded on the basis that the Tahsildar directed that entries be made in the re cord of rights in the names of the appel lants on the strength of the will". The ob jection raised was that there was bar of Sec tion 195 (1) (c), Cr. P. C. their Lordships re lying upon A. I. R. 1971 S. C. 1935 observed at page 300 that:- "the allegation of the complainant is that the appellants forced a will in the, name of the Khartu Ram and thereafter produced it either before the patwari or the Tahsildar in the mutation proceedings commenced by them on the strength of the will. The forgery therefore is alleg ed to have been committed by the appel lants not after they became parties to the mutation. 'proceedings but prior to the commencement of those proceedings'. Sec tion 195 (D (c) can therefore have no application at least in regard to the offences under Section 464, 467 and 468, Penal Code. " In Government of West Bengal v. Hari Das Mundra A. I. R. 1976 S. C. 2225. It was laid down that;- "the words of Section 195 (1) (c) clear ly mean that the offence should be alleged to have been committed by the party to the proceedings in his character as such party, i. e. , after having become a party to the proceeding. Ss. 195 (1) (c), 467 and 468 as read together indicate beyond doubt that the legislature could not have intend ed to extend the prohibition contained in Section 195 (1) (c) to the offences mention ed therein when committed by a party to a proceeding prior to his becoming such party. Thus the scope of Section 195 (1) (c) is restricted to cases where the offence al leged to have been committed by the par ties to proceeding after, he became such s party and not before. In that case the accused was a contrac tor and managing agent of a company. He was prosecuted for offences under Sections 464, 467, 468 and 471, I. P. C. he was said to have used forged bills to defraud the company. The Supreme Court laid down that:- "the forged bills in respect of which offence was alleged to have been com mitted were neither tendered nor produced in evidence before the company judge, and as such the requirements of Section 195 (1) (c) were not satisfied. Further the offence was alleged to have been commit ted prior to commencement. of proceed ings in the petition under Sections 397 and 398 Section 195 (1) (c) did not apply. " In this case reliance was placed upon the decisions of Supreme Court reported in A. I. R. 1974 S. C. 299: A. I. R. 1073 S C. 1100: A. I. R. 1971 S. C. 1935. In the instant case it is note-worthy that forgery, regarding sale deed, is said to have been committed on the day when it is said to have been executed, i. e. to say, much earlier to that document being used in mu tation proceedings. That being so, in my view there can be no bar of Section 195 (1) (c), Cr. P. C. for launching of the prosecution. It was urged before me that a writ pe tition was moved to quash the order of D. D. C. , but that writ petition was dismiss, ed, and, therefore, the criminal court could not be bounded. The contention is not cor rect because the mutation court's order could be no bar to the filing of the complaint. It was urged that at no stage Harnaik Singh himself had appeared but I think it would not be proper to discuss on that as pects at least any observation made in that behalf may tilt the case one way or the other i. e. for the Criminal Court, who is seized of the matter, to consider. Last argument that after the order of D. D. C. the criminal case could not be launched nor it should be allowed to proceed is also not a correct proposition, because the 'privy Council as back in Emperor v. Khuwaja Nazir Ahmad A. I. 'r. 1932: 1945 Privy Council 18, clearly observed that: - "the findings in a civil proceedings are not binding in a subsequent prosecu tion, founded upon the same or similar allegations. It is the duty of a Criminal Court when a prosecution for a crime takes place before it, to' form its own view and not to reach its conclusion by refer ence to any previous decision of the Civil Court, which is not binding upon it. " As a result, I do not think it is open to this court to quash the proceedings about which cognizance has been taken by the Magistrate in as much as the Magistrate had jurisdiction to take cognizance and he has also taken evidence under Sections 200 and 202, Cr. P. C. to arrive at a subjective satis faction that prime facie the evidence war ranted summoning of the accused under vari ous sections altogether, therefore, I see no force in this petition and it is hereby rejected. .