SRI KRISHNAPADA SAHA Vs. THE STATE OF TRIPURA

JUDGEMENT

(1.) This criminal revision is directed against the order dated 25-2-2014 passed by the learned Judicial Magistrate 1st Class, Court No. 5, Agartala, West Tripura ("learned Magistrate" for short) in C.R. No. 192 of 2013 U/s 258 Cr.P.C stopping the criminal proceeding against the respondents No. 2 and 3, who were sought to be prosecuted for commission of the offences punishable U/s 181/182/193/199/ 419/420/34 IPC on the ground that such prosecution is barred by Section 195 Cr.P.C.

(2.) The case of the petitioner is that on 12-9-2012, the petitioner filed Title Suit No. 141/2012 before the learned Civil Judge (Sr. Division), Court No. 1, Agartala over property dispute. On 26-3-2013, the respondents 2 and 3 filed a counter-claim in T.S. (CC) No. 34 of 2013, for which the respondent 2 filed a sworn affidavit dated 23-3-2013 before the Notary Public, Agartala falsely declaring his profession to be a businessman even though he is a Government servant; he is in fact, presently holding the post of Superintendent (EIRET) in the Office of the District Industries Centre, Gomati. In their written statement by the respondents in T.S. No. 141/12 filed on 12-4-2013, the respondent 2 filed a sworn affidavit dated 23-3- 2013 falsely declaring himself to be a businessman. Again, on 22-6-2013, in their written objection filed in connection with Misc. Case No. 62(Inj)/2013 against the application for injunction filed by the petitioner, the respondent no. 2 prepared another affidavit before the Notary Public falsely claiming that his profession was a businessman instead of a Government employee. Contending that these false declarations constitute the offences punishable U/s 181/182/193/419/420 r/w Section 34 IPC and the provisions of Oaths Act, 1969, the petitioner filed a complaint petition before the learned Chief Judicial Magistrate, West Tripura against the respondent No. 2 and 3 for proceeding against in accordance with law. The learned Chief Judicial Magistrate took cognizance of the offences and made over the case to the learned Magistrate for disposal according to law. On 3-1-2014, the petitioner was examined U/s 200 Cr.P.C and the learned Magistrate, having found sufficient grounds for proceeding, issued summons to the respondents 2 and 3 and fixed 5-2-2014 for further proceeding. On 5-2-2014, the respondents appeared before the learned Magistrate and were released on bail and fixed another date for explanation of the substance of the accusations. One thing led to another till 22-2-2014, when the learned Magistrate instead of proceeding U/s 251, Cr.P.C fixed another. According to the petitioner, without the application of the respondents, the learned Magistrate proceeded to hear the question of maintainability of the complaint, which was barred by Section 195(1) Cr.P.C. After hearing the parties, the impugned order was passed by the learned Magistrate whereupon this revision has been preferred by the petitioner

(3.) Mr. N. Das, the learned counsel for the petitioner, makes two-fold contentions, namely, (i) the learned Magistrate acted illegally in dropping the proceeding when cognizance of the offences had already been taken by the learned Chief Judicial Magistrate by issuing process and (ii) the learned Magistrate has also grossly erred in law in holding that the offences charged against the respondent 2 and 3 could not be tried without a complaint in writing to that effect lodged by the Court U/s 195(1)(a)(i) and 195(1)(b)(ii), Cr.P.C. According to the learned counsel, when the documents were already alleged to have been forged before the Notary Public prior to their production in the trial court, the embargo placed by Section 195 against prosecution without the complaint in writing of the authority/court concerned does not apply, and the decision to the contrary rendered by the trial court is an improper exercise of jurisdiction by the trial court and is, therefore, not sustainable in law. To buttress his contentions, he places reliance on the decision of the Apex Court in Igbal SinghMarwah v. Meenakshi Marwah, 2005 4 SCC 370 . On the other hand, both Mr. A. Ghosh, the learned Public Prosecutor and Mr. A. Sengupta, the learned counsel for the private respondents, support the impugned order and submit that the trial court is right in holding that the offence alleged by the petitioner fell U/s 181 IPC i.e. of giving false statement under oath before a Notary Public, who is a public servant, and no cognizance of offences punishable U/s 172 to 188 (both inclusive) IPC could be taken except on a complaint in writing of the public servant and did not commit any illegality in holding that the case could not proceeded any further since the proceeding was based on wrong cognizance.: Clause (b)(ii) of Section 195(1) Cr.P.C also 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 and, as such, the trial against the private respondents could not proceed further without a complaint in writing is lodged by the court in that behalf. As there is no merit in this criminal revision, the learned counsel submit that no case for revision is made out by the petitioner, and the impugned order does not call for the interference of this Court.