Case Note & Summary
The case involves three connected matters: Criminal Revision Nos. 49 and 50 of 2016 filed by Smt Sudha Sarraiya, the widow and legal representative of the original complainant Pawankumar Sarraiya, and Criminal Application No. 333 of 2014 filed by two accused persons, Mohd. Kanisodin and Wasudev Kodumal Khemchandani. The original complaint was filed by Pawankumar Sarraiya against four accused persons alleging offences under Sections 463, 468, 471 of the Indian Penal Code (IPC). The complaint pertained to alleged forgery of documents. During the pendency of the complaint, the original complainant died, and his widow Sudha Sarraiya continued the prosecution. The learned Magistrate issued process on 21.5.2011 in Regular Criminal Case No. 64 of 2007, including an erroneous mention of Section 463 IPC as a punishable offence, whereas Section 463 IPC only defines forgery and the punishment is under Sections 468 or 471 IPC. The accused persons challenged the issuance of process, arguing that the Magistrate could not take cognizance of the offences without a complaint in writing from the court as required under Section 195(1)(b)(ii) of the Code of Criminal Procedure (CrPC). The complainant, on the other hand, sought to uphold the process. The court analyzed the provisions of Section 195 CrPC, which bars a court from taking cognizance of certain offences, including those under Sections 463, 468, 471 IPC, when the offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, except upon a complaint in writing by that court. The court found that the allegations in the complaint related to documents that were produced in court proceedings, and therefore, the bar under Section 195 CrPC applied. The court held that the Magistrate's order issuing process was without jurisdiction and liable to be set aside. Consequently, the court allowed Criminal Application No. 333 of 2014 filed by the accused, quashing the process, and dismissed Criminal Revision Nos. 49 and 50 of 2016 filed by the complainant.
Headnote
A) Criminal Procedure Code - Cognizance of Offences - Section 195 CrPC - Bar on Taking Cognizance - The court held that for offences under Sections 463, 468, 471 IPC, which relate to forgery of documents produced in court, the Magistrate cannot take cognizance except upon a complaint in writing by the court concerned. The complaint by a private individual is barred under Section 195(1)(b)(ii) CrPC. (Paras 5-10) B) Indian Penal Code - Forgery - Section 463 IPC - Definition Only - Section 463 IPC only defines forgery and is not a substantive penal provision; the punishment is under Sections 468 or 471 IPC. The Magistrate erred in issuing process under Section 463 IPC as a punishable offence. (Para 2) C) Criminal Procedure Code - Revision - Section 397 CrPC - Maintainability - The revision against the order issuing process is maintainable as the order is interlocutory but the court can examine the legality of the process. (Para 1) D) Criminal Procedure Code - Inherent Powers - Section 482 CrPC - Quashing - The High Court can exercise inherent powers to quash proceedings if the cognizance is barred by law. (Para 10)
Issue of Consideration
Whether the Magistrate could take cognizance of offences under Sections 463, 468, 471 IPC without a complaint in writing from the court as required under Section 195(1)(b)(ii) CrPC
Final Decision
Criminal Application No. 333 of 2014 is allowed. The order dated 21.5.2011 issuing process in Regular Criminal Case No. 64 of 2007 is quashed and set aside. Criminal Revision Nos. 49 and 50 of 2016 are dismissed.
Law Points
- Section 195 CrPC bars cognizance of offences under Sections 463
- 468
- 471 IPC without complaint by court
- Section 397 CrPC revision maintainable
- Section 482 CrPC inherent powers
- Section 463 IPC defines forgery not punishable
- Section 468 IPC forgery for cheating
- Section 471 IPC using forged document
