Case Note & Summary
The case arises from a complaint filed by Pawankumar Sarraiya (later prosecuted by his widow Sudha Sarraiya) alleging forgery of a will by the accused, including Omprakash Khemchandani and Ashok Jain. The Magistrate issued process against the accused for offences under Sections 463, 468, 471 read with 34 IPC. The accused challenged the process before the Sessions Court, which discharged them on the ground that sanction under Section 197 CrPC was required as one of the accused was an advocate. The complainant filed revisions against the discharge, and the accused also filed an application under Section 482 CrPC to quash the process. The High Court examined the legality of the discharge order and the correctness of the process. The Court held that the Sessions Judge erred in discharging the accused because the act of preparing a will by an advocate is not in discharge of official duty, and thus no sanction under Section 197 CrPC was required. The Court also noted that the Magistrate had mistakenly issued process for Section 463 IPC, which is not a punishable offence, but this did not vitiate the entire process. The Court allowed the revisions, set aside the discharge order, and restored the proceedings before the Magistrate. The criminal application filed by the accused was dismissed.
Headnote
A) Criminal Procedure Code - Revision - Maintainability - Section 397 CrPC - Revision against order of discharge is maintainable as it is an interlocutory order? - Held that order of discharge is not an interlocutory order but a final order, hence revision is maintainable (Paras 1-5). B) Indian Penal Code - Forgery - Definition vs Punishment - Section 463 IPC - Section 463 IPC only defines forgery; punishment is under Sections 468/471 IPC - Magistrate erred in issuing process for offence punishable under Section 463 IPC as it is not a penal provision (Para 2). C) Criminal Procedure Code - Sanction for Prosecution - Section 197 CrPC - Sanction required only for acts done in discharge of official duty - Accused advocate preparing a will is not acting in discharge of official duty as an advocate; hence no sanction required (Paras 6-10). D) Criminal Procedure Code - Discharge - Validity - Section 245 CrPC - Discharge can be ordered only if no prima facie case exists - In the present case, there was sufficient material to proceed against the accused for forgery; discharge was erroneous (Paras 11-15).
Issue of Consideration
Whether the order of discharge passed by the learned Sessions Judge in favour of the accused was correct in law, and whether the Magistrate's order issuing process for offence under Section 463 IPC was sustainable.
Final Decision
The High Court allowed the criminal revisions, set aside the order of discharge passed by the Sessions Judge, and restored the proceedings before the Magistrate. The criminal application filed by the accused under Section 482 CrPC was dismissed.
Law Points
- Section 463 IPC defines forgery but is not a punishable offence
- Section 197 CrPC sanction requirement applies only to acts in discharge of official duty
- Magistrate must apply judicial mind while issuing process
- Revision lies against order of discharge under Section 397 CrPC
