Ashok Gulabrao Bondre vs Vilas Madhukarrao Deshmukh

2023 INSC 724 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1931 OF 2011

ASHOK GULABRAO BONDRE …APPELLANT(S)

VERSUS

VILAS MADHUKARRAO DESHMUKH AND OTHERS …RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. The appeal arises on a very narrow canvass.

2. The appellant had filed a complaint against the respondents

alleging that the respondents had committed the offence punishable

under Sections 191, 192, 196, 463, 464, 465, 467, 470 and 471 read

with Section 34 of the Indian Penal Code, 1860 (for short, “IPC”).

3. The main allegation made by the appellant is that respondent

No.2 ­ Ramprasad Pancheshwar had prepared false and forged

documents, namely, personal recognizance bond and surety bond in

Criminal Case No. 19 of 2003 and the rest of the respondents

conspired and actively helped respondent No.2 for forging the said 2

documents.

4. It is the case of the appellant that those documents had been

eventually filed on record in Criminal Case No. 19 of 2003 pending

against the appellant before the Judicial Magistrate First Class,

Ramtek (hereinafter referred to as the “JMFC”).

5. The learned Judicial Magistrate First Class vide order dated 6 th

November 2004 dismissed the complaint. Being aggrieved thereby, the

revision petition came to be filed.

6. Learned Additional Sessions Judge, Nagpur vide order dated 14 th

March 2005 has held that such a complaint could not have been filed

except in writing of the Court concerned or some other Court, that too

a subordinate one.

7. Learned Additional Sessions Judge, however, found that the

allegations made by the revision petitioners were serious in nature,

and therefore, directed that if any application is filed by the appellant

under Section 340 of the Criminal Procedure Code, 1973 (for short,

“Cr.P.C.”), the learned JMFC would make a suitable preliminary

enquiry and thereafter, record his finding to that effect as

contemplated under Section 340 of the Cr.P.C.

8. The said order passed by the Revisional Court came to be

challenged by the appellant before the High Court in an application

filed under Section 482 of the Cr.P.C. The same came to be rejected.

Hence, the present appeal.

9. We have heard Mr. Sachin Patil, learned counsel appearing for 3

the appellant and Mr. Rahul Chitnis and Mr. Aaditya Aniruddha

Pande, learned counsel appearing for the respondents.

10. Mr. Sachin Patil submits that the alleged forgery had not been

committed during the pendency of the proceedings. It is submitted

that it is the contention of the appellant that the respondents had

forged the documents earlier and used them in the proceedings

initiated against the appellant. It is, therefore, submitted that the bar

of Section 195 of the Cr.P.C. would not be applicable.

11. Mr. Sachin Patil has relied on the judgment of the Constitution

Bench of this Court in the case of Iqbal Singh Marwa and Another

v. Meenakshi Marwah and Another1.

12. Mr. Sachin Patil further submits that though the judgment of the

Constitution Bench was cited before the learned Single Judge of the

High Court, it did not consider the same in correct perspective.

13. Mr. Rahul Chitnis, on the contrary, submits that the appellant

has already accepted the order passed by the Revisional Court and

filed an application under Section 340 of the Cr.P.C. before the learned

Magistrate. He further submits that, on account of the interim relief

granted in the present appeal, the said application could not be

proceeded further. He submits that as such, the question that is

involved in the present matter is purely an academic question in which

the Court should not go.

14. Mr. Aaditya Aniruddha Pande, supports the submission made by

1 (2005) 4 SCC 370 4

Mr. Rahul Chitnis.

15. The narrow question that requires to be considered is as to

whether the embargo under Section 195 of the Cr.P.C. would be

applicable when the allegation that the documents which are sought to

be used as evidence were already fabricated and forged prior to filing

in evidence.

16. This Court, in the case of Surjit Singh and Others v. Balbir

Singh2, had taken a view thus:

“10. It would thus be clear that for taking cognizance of an offence, the document, the foundation of forgery, if produced before the court or given in evidence, the bar of taking cognizance under Section 195(1)(b)(ii) gets attracted and the criminal court is prohibited from taking cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under Section 340 of the Code by or on behalf of the Court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offence covered thereunder."

17. Subsequently, this Court, in the case of Sachida Nand Singh

and Another v. State of Bihar and Another3, took the view thus:

“11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed 2 (1996) 3 SCC 533 3 (1998) 2 SCC 493 5

during the time when the document was in custodia legis.

12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records.

* * *

23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court."

18. Finding the two conflicting views taken with regard to the

interpretation of Section 195 of the Cr.P.C., the question was referred

to the Constitution Bench of this Court in the case of Iqbal Singh

Marwa (supra). It will be relevant to refer to paragraph 7 of the said

judgment, which is as under:

“7. On a plain reading clause (b)(ii) of sub­section (1) of Section 195 is capable of two interpretations. One possible interpretation is that when an offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 IPC is alleged to have been committed in respect of a document which is subsequently produced or given in evidence in a proceeding in any Court, a complaint by the Court would be necessary. The other possible interpretation is that when a document has been produced or given in 6

evidence in a proceeding in any Court and thereafter an offence described as aforesaid is committed in respect thereof, a complaint by the Court would be necessary. On this interpretation if the offence as described in the Section is committed prior to production or giving in evidence of the document in Court, no complaint by Court would be necessary and a private complaint would be maintainable. The question which requires consideration is which of the two interpretations should be accepted having regard to the scheme of the Act and object sought to be achieved.”

19. After observing the aforesaid and considering the entire scheme

under Section 195 of the Cr.P.C., so also under Section 340 of the

Cr.P.C., this Court observed thus:

“33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.

34. In the present case, the will has been produced in the Court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge.

Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.” 7

20. It could thus clearly be seen that this Court, on unequal terms,

has held that the view taken in the case of Sachida Nand Singh

(supra) that Section 195(1)(b)(ii) of the Cr.P.C. would be attracted only

when the offence enumerated in the said provision was committed in

respect of a document after it has been produced or filed in evidence

during proceedings before any Court, i.e. during the time when the

document is custodia legis. The Court has clearly held that, insofar as

the Will which is alleged to have been fabricated before it was

produced in the Court, the embargo created by Section 195(1)(b)(ii) of

Cr.P.C. would not come into play.

21. It has been held that in such a case, the Court will be entitled to

take cognizance of the offence only on the basis of the complaint made

by the complainant.

22. In that view of the matter, we find that the view taken by the

Revisional Court as well as the High Court is not sustainable.

23. The impugned judgment and order passed by the Revisional

Court as well as the High Court are quashed and set aside.

24. The matter is remitted back forthwith to the learned JMFC,

Ramtek for considering the complaint of the appellant on its own

merits.

25. Taking into consideration that the litigation is pending for almost

a decade, we request the learned JMFC to decide the complaint of the

appellant on merits as expeditiously as possible and in any case 8

within a period of one year from today.

26. We further make it clear that we may not be understood to have

expressed any opinion on merits and nothing observed herein should

be construed to have bearing on the merits of the matter.

27. The appeal is disposed of in the above terms.

28. Pending application(s), if any, stand(s) disposed of.

….........................J. [B.R. GAVAI]

...........................J. [SANJAY KAROL]

NEW DELHI;

APRIL 12, 2023.

9

ITEM NO.104 COURT NO.8 SECTION II-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1931/2011

ASHOK GULABRAO BONDRE Appellant(s)

VERSUS

VILAS MADHUKARRAO DESHMUKH & ORS. Respondent(s)

Date : 12-04-2023 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE B.R. GAVAI HON'BLE MR. JUSTICE SANJAY KAROL

For Appellant(s) Ms. Anagha S. Desai, AOR Mr. Sachin Patil, Adv.

Mr. Satyajit A Desai, Adv.

Mr. Siddharth Gautam, Adv.

Mr. Gajanan N Tirthkar, Adv.

Mr. Abhinav K. Mutyalwar, Adv.

Mr. Yougant Dhillon, Adv.

For Respondent(s) Mr. Rahul Chitnis, Adv.

Ms. Shwetal Shepal, Adv.

Mr. Aditya Kumar, Adv.

Mr. Chander Shekhar Ashri, AOR

Mr. Aaditya Aniruddha Pande, AOR Mr. Siddharth Dharmadhikari, Adv. Mr. Bharat Bagla, Adv.

Mr. Sourav Singh, Adv.

UPON hearing the counsel the Court made the following O R D E R

1. The appeal is disposed of in terms of the signed order.

2. Pending application(s), if any, stand(s) disposed of.

(DEEPAK SINGH) (ANJU KAPOOR) COURT MASTER (SH) COURT MASTER (NSH)

[Signed reportable judgment is placed on the file]