CHHOHADI DEVI Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Phaujdar, J. Through the present application the powers of this Court under Section 482, Cr. P. C. have been invoked to set aside an order dated 23-4-96 recorded by the Vth Addl. Ses sions Judge, Gorakhpur, in Crl. Revision No. 158 of 1995, with a further prayer to stay the proceedings in Complaint Case. No. 692. 0 of 1993, State v. Umesh and others, now pending before the court of the CJM, Gorakhpur. On presentation of the instant application, an interim order was recorded suspending the operation of the impugned order dated 23-4-96 recorded by the Addl. Sessions Judge, Gorakhpur. The respondents were noticed. A counter-af fidavit was filed on behalf of respondent No. 3, Smt. Subhagi. A rejoinder affidavit was also placed on record on behalf of the applicants.

(2.) RESPONDENT No. 3 filed Case No. 6920 of 1993 for offences under Sections 419,420,467,468 and 120- B, IPC, relating to P. S. Cantt. District Gorakhpur on the ground that in Case No. 2 of 1993 pending before the SDM, Bansgaon, Gorakhpur, the present two applicants had produced another woman as the present respondent No. 3 posing her to be Subhagi Devi and placed a compromise application with her signature and tried to get hold of the lands of the respondent No. 3 through illegal means. When this fact was brought to the notice of the said SDM, the latter was of the view that the action of the present respondent No. 3 was suspicious and hence he forwarded the matter to the CJM for further action. This order was passed by the SDM on 23-8-93. On receipt of the matter from the SDM, the CJM opened the records of the Case No. 6920 of 1993, State v. Umesh and others, and recorded an order dated 12-7-95 to the effect that there should have been a proper complaint under Section 195, Cr. P. C. and a mere forwarding of the materials to the CJM by the SDM was not contemplated under the law. Accordingly, he was of the view that no cognizance could be taken and the entire matter was not maintainable.

(3.) SECTION 195, Cr. P. C. speaks of prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence. It requires that no court shall take cog nizance of any offence described in Sec tion 463 or punishable under SECTIONs 471, 475 or 476 of the IPC 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 except on the complaint in writing of that court or of some other court to which that court is subordinate. The plain read ing of the complaint of Smt. Subhagi indi cates that the forgery and cheating, if any, was committed in respect of certain Vakalatnama and compromise petition filed before the SDM, Bansgaon, in a case that was being heard by him. Prima facie , therefore, it was an offence described in SECTION 463, IPC, that is of forgery and making a false document, in respect of a document produced in a proceeding in a court and cognizance could have been taken only on the complaint in writing of that court, i. e. the SDM or some other court to which the SDM was subordinate. SECTION 340, Cr. P. C. finds place in Chapter XXVI of the Cr. P. C. which makes provisions as to offences affecting the ad ministration of justice and SECTION 340 lays down the procedure in cases of offen ces mentioned in SECTION 195, Cr. P. C. Under this section when upon an applica tion made to a court it is of opinion that it is in the interest of justice that a enquiry should be made into an offence referred in clause (b) of sub-section (1) of SECTION 195, Cr. P. C. which appears to have been committed in relation to a proceeding in that court, the court may make a prelimi nary enquiry and record a finding to that effect and then make a complaint thereof in writing and only thereafter send it to a Magistrate of 1st Class having jurisdiction. In the instant case, the alleged forgery, as stated above, was committed in respect of a Vakalatnama and a compromise petition before the SDM, and this fact was brought to the notice of the SDM. He should have, under SECTION 340, Cr. P. C. made a preliminary enquiry to satisfy himself that the offence was committed and, there after, he should have made a complaint. There has been, however, no preliminary enquiry nor has there been any complaint by he SDM. Taere was only a reference by him to the CJM. It is worth to note that there was no complaint to the CJM by Smt. Subhagi Devi.