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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.359 OF 2018 (Arising Out of SLP (Criminal) No. 1395 of 2010)

VISHNU CHANDRU GAONKAR              … APPELLANT

VERSUS

N.M. DESSAI    … RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed questioning the

judgment and order dated 06.10.2009 of the High

Court of Bombay at Goa in Criminal Appeal No. 22

of 2009 by which judgment, the criminal appeal

filed by the respondent Shri Narayan M. Dessai

has  been  allowed  setting  aside  the  order  of

District  &  Sessions  Judge  dated  31.07.2008

directing for filing a complaint under Section

195(1)(b)(ii) of Cr.P.C.  

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2. The facts which are necessary to be noted

for deciding this appeal are:-

A regular Civil Suit No. 4 of 1993 was filed

by  two  plaintiffs  namely  Laximan  Rama

Gaonkar and Janu Narayan Gaonkar impleading

two defendants namely Kusta Naga Gaonkar and

Shri Suresh Kust Gaonkar. The appellant in

this  appeal  is  legal  heir  of  original

plaintiff No. 2, Janu Narayan Gaonkar.  The

Suit No. 4 of 1993 was decreed by judgment

and decree dated 07.12.2001.  An application

for  execution  of  decree  was  filed  by  the

legal heirs of the plaintiffs on 07.12.2003.

Legal heirs of the original defendants filed

a Civil Appeal No. 91 of 2004 questioning

the  judgment  and  decree  dated  07.12.2001.

One of the appellants in Civil Appeal No. 91

of 2004 namely Shaba Manju Velip (one of the

legal  heirs  of  original  defendants  Kusta

Naga  Gaonkar)  died  on  02.03.2005.   No

application  to  bring  his  legal  heirs  on

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record  was  filed  by  the  appellants.   The

application to withdraw execution case No. 1

of 2003 filed for execution of the decree in

Civil Suit No. 4 of 1993 was filed by the

plaintiff’s  advocate  on  20.06.2006.   The

application for withdrawal of Civil Appeal

No.  91  of  2004  was  filed  on  18.07.2006,

which was allowed on 18.07.2006 itself.  The

Execution  Case  No.  01  of  2003  was  also

allowed to be withdrawn on 21.07.2006.  On

29.11.2007,  the  appellant  filed  an

application  under  Section  195(1)(b)(ii)

Cr.P.C.  making  allegations  against  the

respondent,  who  was  counsel  for  the

appellants in Civil Appeal No. 91 of 2004

that he committed offence in verifying and

forging thumb impression of dead appellant

namely Shaba Manju Velip.  By order dated

31.07.2008,  learned  District  &  Sessions

Judge  found  that  it  is  a  fit  case  for

inquiry  under  Section  195(1)(b)(ii)  and

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directed  for  inquiry  and  registering  a

complaint  under  Section  195(1)(b)(ii).

Respondent  preferred  an  appeal  before  the

High Court against the order of District &

Sessions Judge dated 31.07.2008.  The High

Court vide its impugned judgment allowed the

appeal and quashed the order of the District

Judge  dated  31.07.2008  as  well  as  the

complaint filed pursuant thereto.  Aggrieved

against the judgment of the High Court, the

appellant has filed this appeal.

3. Learned counsel for the appellant submitted

that the High Court relying on the Three Judge

Bench  judgment  of  this  Court  in  Sachida  Nand

Singh & Anr. Vs. State of Bihar & Anr., (1998) 2

SCC  493,  which  has  been  approved  by  the

Constitution Bench of this Court in Iqbal Singh

Marwah  &  Anr.  Vs.  Meenakshi  Marwah  &  Anr.,

(2005) 4 SCC 370, has allowed the appeal filed

by the respondent whereas the above judgments of

this  Court,  wherein  reference  was  made  to

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Section  195(1)(b)(ii)  Cr.P.C.,  which  were  not

applicable  in  the  facts  of  the  present  case,

since allegations made in the complaint filed by

the appellant were referable to Section 195(1)

(b)(i).  It is submitted that the District &

Session Judge has rightly considered all facts

and  circumstances  and  directed  for  filing  of

complaint against the respondents under Section

195(1)(b).  No one has appeared on behalf of the

respondent in spite of service.          

4. We have considered the submissions of the

learned counsel for the parties and perused the

records.  

5. It is useful to extract Section 195(1) of

Cr.P.C., which is to the following effect:-

“195. Prosecution  for  contempt  of lawful authority of public servants, for offences against public justice and  for  offences  relating  to  docu- ments  given  in  evidence.  -  (1) No Court shall take cognizance-

(a) (i) of any offence punishable un- der sections 172 to 188 (both in-

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[except on the complaint in writ- ing of that Court, or by such of- ficer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate]. ……………………………………………”

6. From  the  facts  which  are  on  the  record,

there is no dispute that the Appeal No. 91 of

2004  was  filed  by  several  appellants,  out  of

which  one  of  the  appellants  was  Shaba  Manju

Velip, who died on 02.03.2005.  The application

for  withdrawal  of  the  appeal  was  filed  on

18.07.2006.  It is further to be noted that one

Vimal  Shaba  Velip,  who  was  one  of  the

respondents before the High Court, took it upon

herself to say that the thumb impression, which

was put as of Shaba Manju Velip was put by her,

since her husband Shaba Manju Velip also used to

sign along with her, in good faith, she put her

thumb impression.  The respondent N.M. Dessai

came with the case that he having been informed

that talks of settlement amongst the Gaonkars is

going on and they are intending to withdraw the

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execution application filed by them.  He, as per

instructions of his client, drafted and handed

over the application for withdrawing the Appeal

No.  91  of  2004  to  one  Suresh  K.  Gaonkar  to

obtain  the  signatures  of  the  remaining

respondents.  He further came with the case that

he was not aware of death of Shaba Manju Velip

or  alleged  forged  thumb  impression  of  Shaba

Manju Velip on the application.  

7. The  facts  fairly  indicate  that  the

application when it was presented in the Court

in Appeal No. 91 of 2004 for withdrawal of the

appeal,  signatures/thumb  impressions  of  the

appellants  were  already  obtained  on  the  said

application,  which  was  handed  over  to  the

respondent  in  this  appeal  for  filing  in  the

Court.  On the same date, i.e., 18.07.2006, the

Court  allowed  the  application  permitting

withdrawal of the appeal.  

8. A Criminal Misc. Application No. 95 of 2007

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for  initiating  action  under  Section  195(1)(b)

(ii) of Cr.P.C. was filed by the appellant after

the said withdrawal of the appeal.  Copy of the

Application No. 95 of 2007 has been filed as

Annexure P-4.  It is useful to quote prayer in

the  application,  which  is  to  the  following

effect:-

“The applicant therefore prays that in view of above an enquiry may be conducted and the written complaint be  made  as  per  the  provision contemplated under Section 195(1)(b) (ii)  of  Criminal  Procedure  Code  in order to prosecute and take further action against the respondents above as per the provision of law.”

9. The application was allowed by the District

Judge  vide  order  dated  31.07.2008  where  the

District Judge had directed for inquiry to be

conducted in terms of Section 195(1)(b)(ii) of

Cr.P.C., it is useful to quote Paras 18 and 19

of the order of the District Judge, which is to

the following effect:-

“18. Though the respondent No.9 has canvassed  that  he  was  totally unconnected  with  any  of  such transaction,  such  a  plea  would  not

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lie  in  his  mouth  when  he  was representing the said appellants and one of whom was Shaba, since deceased and  instrumental  in  seeking  the withdrawal of the appeal also at his instance as late as 18.7.2006 despite Shaba  being  dead  on  that  day. Therefore,  on  the  basis  of  the material  on  record,  it  is  apparent that  an  offence  of  forgery  under Section 463 I.P.C. has allegedly been committed to withdraw the appeal mis- representing the deceased as living and the execution of the Sale Deeds in respect of the very same property on  the  following  day  and  a  day thereafter.  The application so filed in Court would be “a document” in the context  of  the  Evidence  Act  and evidence.  

19. I am therefore satisfied that this is a fit case where inquiry is required to be conducted in terms of Section 195(1)(b)(ii) of Cr.P.C. and initiate  complaint  against  the respondents for appropriate action as per law.”  

10. The two judgments of this Court, which has

already  been  noticed  by  the  High  Court  needs

detailed reference.   

11. A  Three  Judge  Bench  of  this  Court  in

Sachida Nand Singh & Anr. Vs. State of Bihar &

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Anr., (1998) 2 SCC 493 had occasion to consider

Section 195(1)(b)(ii) and Section 340(1) Cr.P.C.

Interpreting  Section  195(1)(b)(ii),  following

was laid down in Paras 8, 11 and 23:-

“8. That apart it is difficult to in- terpret Section 195(1)(b)(ii) as con- taining a bar against initiation of prosecution  proceedings  merely  be- cause the document concerned was pro- duced in a court albeit the act of forgery was perpetrated prior to its production  in  the  Court.  Any  such construction is likely to ensue un- savoury  consequences.  For  instance, if rank forgery of a valuable docu- ment is detected and the forgerer is sure that he would imminently be em- broiled in prosecution proceedings he can simply get that document produced in  any  long-drawn  litigation  which was either instituted by himself or somebody else who can be influenced by him and thereby pre-empt the pros- ecution for the entire long period of pendency of that litigation. It is a settled proposition that if the lan- guage of a legislation is capable of more than one interpretation, the one which  is  capable  of  causing  mis- chievous  consequences  should  be averted. Quoting from Gill v. Donald Humberstone & Co. Ltd.5 Maxwell has stated in his treatise (Interpreta- tion of Statutes, 12th Edn., p. 105) that “if the language is capable of more than one interpretation we ought to discard the more natural meaning

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if  it  leads  to  unreasonable  result and adopt that interpretation which leads to a reasonably practicable re- sult”. The clause which we are now considering  contains  enough  indica- tion to show that the more natural meaning is that which leans in favour of a strict construction, and hence the  aforesaid  observation  is  emi- nently applicable here.

11. The scope of the preliminary en- quiry 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 of- fence should have been committed dur- ing the time when the document was in custodia legis.

23. The sequitur of the above discus- sion  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.  Accordingly  we  dismiss  this appeal.”

12. It  is  also  relevant  to  note  that

observations have been made by this Court that

forgery of a document if committed far outside

the precincts of the Court and long before its

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production  in  the  Court,  the  same  cannot  be

treated  as  one  affecting  administration  of

justice.  In Para 12, following has been held:-

“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 affect- ing administration of justice merely because that document later reached the court records.”

13.  A contrary earlier view having expressed

by another Three Judge Bench in Surjit Singh &

Ors. Vs. Balbir Singh, (1996) 3 SCC 533,  being

not in accord with the view expressed by this

Court in Sachida Nand Singh & Anr. Vs. State of

Bihar & Anr. (supra), the same was referred to a

Constitution Bench for resolving the conflict.

The  Constitution  Bench  vide  its  judgment  in

Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah &

Anr., (2005) 4 SCC 370 has resolved conflict and

approved three Judge Bench judgment in  Sachida

Nand Singh & Anr. Vs. State of Bihar & Anr.

(supra).  In Para 33, following was laid down:-

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“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)  CrPC  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 evi- dence in a proceeding in any court i.e. during the time when the docu- ment was in custodia legis.”

14.  Learned counsel for the appellant before

us has pressed only one submission, i.e., the

judgment of Constitution Bench in  Iqbal Singh

Marwah  (supra)  was  a  case,  which  interpreted

Section 195(1)(b)(ii), to which there cannot be

any dispute but present was a case of offence

under  Section  195(1)(b)(i).  Hence  the

Constitution Bench judgment of this Court was

not  applicable  and  the  High  Court  committed

error  in  relying  on  the  Constitution  Bench

Judgment in Iqbal Singh Marwah (supra).   

15. The  submission  which  has  been  raised  by

learned counsel for the appellant before us has

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to be stated to be rejected due to the reason

that before the Session Court as well as before

the  High  Court,  the  appellant  has  alleged  an

offence under Section 195(1)(b)(ii).  A copy of

the Application No. 95 of 2007 has been annexed

as Annexure P-4.  The prayer made therein as

extracted above clearly prays for complaint to

be made as per the provisions contemplated under

Section 195(1)(b)(ii) of Cr.P.C.  Even the order

of District Judge, which was the basis in favour

of the appellant on 31.07.2008 has also directed

for inquiry and initiating complaint in terms of

Section 195(1)(b)(ii) of Cr.P.C., which has also

been extracted above for ready reference.  There

being  specific  case  of  the  appellant  in  his

complaint  as  well  as  in  order  passed  by  the

District Judge in his favour, it is not open for

the appellant now to turn round and claim that

allegations are covered under Section 195(1)(b)

(ii).  There is one more reason due to which the

above  submission  cannot  be  accepted.   The

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Constitution  Bench  elaborately  noticing  the

statutory scheme under Section 195 has held that

where  offences  has  already  been  committed

earlier and later on the document is produced or

given  in  the  evidence  in  Court,  the  same  is

neither covered under Clauses (a), (b)(i) or (b)

(ii).   In  Para  10,  Constitution  Bench  made

following observations:-

“10. The scheme of the statutory provi- sion may now be examined. Broadly, Sec- tion 195 CrPC deals with three distinct categories of offences which have been described in  clauses (a),  (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2)  offences  against  public  justice, and (3) offences relating to documents given  in  evidence.  Clause  (a)  deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is — “Of Contempts of the Lawful Authority of Public Servants”. These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences  in  Chapter  XI  IPC  which  is headed as — “Of False Evidence and Of- fences Against Public Justice”. The of- fences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court  of  justice  or  before  a  public

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servant who is bound or authorised by law to  receive such  declaration, and also to some other offences which have a direct correlation with the proceed- ings in a court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195  viz.  that  the  offence  should  be such which has direct bearing or af- fects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the pro- ceedings in a court of justice, the ex- pression “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” occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given  in  evidence  in  the  court.  The situation or contingency where an of- fence as enumerated in this clause has already  been  committed  earlier  and later on the document is produced or is given in evidence in court, does not appear to be in tune with clauses (a) (i) and  (b)(i) and  consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii) contem- plates 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.”

16. It  is  further  to  be  noted  that  the

execution application, which was filed by the

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decree holder was also withdrawn. It is further

relevant to notice that the appeal, which was

filed  by  judgment  debtor  was  withdrawn  by

judgment debtor, which in no manner had impaired

the  interest  of  the  appellant,  who  was  legal

heir of decree holder.  It is also on the record

that legal heirs of the decree holders have also

withdrawn their execution application, which has

attained finality.  None of the appellants, who

had filed Appeal No.91 of 2004 before the High

Court has initiated any proceeding against the

present respondent N.M. Dessai, who was their

advocate.  It is only the appellant, who was

respondent in Appeal No.91 of 2004 has filed a

complaint  under  Section  195.   The  High  Court

having taken into consideration entire facts and

circumstances  have  rightly  come  to  the

conclusion that present is not a case where any

complaint  could  have  been  proceeded  under

Section 195(1)(b)(ii) Cr.P.C.  

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17. We thus fully endorse the view of the High

Court  that  present  is  not  a  case  where  any

complaint could have been proceeded with under

Section 195(1)(b)(ii).  We thus do not find any

merit in this appeal and the same is dismissed.  

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI,     ( ASHOK BHUSHAN ) MARCH 06, 2018.