1987 PLP 1494 (MLD)

Admittedly, the cognizance has been taken by the Court of Session on a police report and not on a complaint lodged by the High Court. It may also be pointed, that offence under sections 205 and 471, PPC are specifically described in these two sub-clauses. Sub-clause 'C' of subsection (1) is also made applicable to offences described in section 463, PPC. Section 463 defines forgery. It is, therefore, contended, that offences under sections 467 and 468, PPC which are also kinds of forgery would also be covered by this sub-clause 'C'. The contentions of the learned counsel, that the offence under sections 467 and 468 would also be covered by clause 'C' of section 195(1), Cr.P.C. appears to be correct. Expression "any offence; described under section 463, PPC" occurring in clause (c) gives al clear indicating, that all kinds of forgery are covered by it. From the perusal of the prosecution story it appears, that the applicant Mst. Rehmat Bibi is alleged to have committed the following acts:-- (i) To have cheated Saudi Arabian Airlines and or the High Court by impersonating as Mst. Ayesha, mother of deceased, Kifayatullah. (ii) To have impersonated as Mst. Ayesha Bibi in proceedings it S.M. No.86/1983 in this Court. (iii) To have forged or used some forged documents in the said proceedings. These acts are alleged to have been committed by said Mst. Rehmat Bibi in furtherance of common intention of applicants, Shafiullah and Ameer Ahmed Khan, who are also alleged to have abetted her in the commission of said acts. The acts of Mst. Rehmat Bibi as described at item Nos.2 and 3, above, if proved, would constitute offences punishable under sections 205, 467, 468 and 471, PPC. Apparently, these offences, if any, were committed in the course of proceedings in the Court. Section 195, Cr.P. C. bars the Court from taking cognizance of offences punishable under the above sections except on a written complaint of the Court concerned. Admittedly, no such complaint has been filed by this Court. As such the learned Sessions Judge could not have taken cognizance of these offences on police report. The first act of Mst. Rehmat Bibi, if proved, would constitute offences punishable under sections 419 and 420, PPC. These offences do not fall within the purview of section 195, Cr. P. C . The question now, is whether the Court could take cognizance of these two offences when the applicants are also charged with offences of which the Court could not have taken the cognizance. It will be pertinant to refer to the relevant case law on the question. In P L D 1966 (W.P.) Kar. 207 a learned Single Judge two observed as under:- "The purpose of such provisions which bar the cognizance of an offence falling under a particular statute without the previous sanction of the authority named therein or without a complaint by such authority as the case may be, is to keep such proceedings within the control of public interest. The purpose cannot be allowed to be defeated by restoring to device and camuflage. It is true that there may be a case where a distinct offence is disclosed falling under the Penal Code by the same facts and which could in a proper case be inquired into upon a private complaint because the bar of the special statute would not apply to it but in all such cases care must be taken to see whether the facts disclose primarily and essentially an offence for which a complaint of the officer concerned has been made a condition precedent before cognizance of it is taken. If such be the case then prosecution upon subsidiary facts falling under another provision of law would not be permitted. " In A I R 1953 S C 293 it is held:- "Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section but the provisions of that section cannot be evaded by restoring to devices or camuflages. The test whether there is evasion of the section or not is whether the facts disclosed primarily and essentially an offence for which complaint of the Court or of the public servant is required." In this case reference is made to the case of Hori Ram Singh v. Emperor A I R 1939 F C

43. In that case the charge was, that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity and wilfully and with intact to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. He was prosecuted under sections 409 and 477-A, PPC. The cognizance of offence under section 477-A, PPC could not be taken without previous consent of the Governor whereas no such consent was required for taking cognizance of offence under section 409, PPC. Their Lordships held as under:- The distinct offences having been committed in the same transaction. One an offence of misappropriation under S.409, and the other an offence under S.477-A, which required the sanction of the Governor the circumstances, that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under S.409." Applying to the principles laid down in the above cases to the facts of the present case, it will be seen, that the prime purpose and intention of the applicants is alleged to commit offences of cheating. They allegedly intended to cheat the Saudi Arabian Airline and/or the High Court of amount in question, and for that purpose the impersonation, forgery and use of forged documents in Court proceedings is alleged to have, been committed by the applicants. Thus, the offences of the impersonation and forgery, in relation to the proceedings in the High Court, were subsidiary to the main offence which was offence of cheating. There can be no doubt, that the offences under Ss.430 and 419, PPC r/w Ss.34, 199 PPC, are distinct offences and not subsidiary to the offences under Ss.205, 467, 468 and 407, FPC which are alleged to have been committed by the applicants and for which the Court could not have taken cognizance except in accordance with provisions of 5.195 Cr.P.C. Considering all the facts and law, discussed above, I partially allow the Revision Application and quash the proceedings against the applicants under Ss.205, 467, 468 and 471, PPC. The case against the applicants under the remaining sections of Penal Code to proceed without prejudice by this order. The Revision Application was partially allowed by short order dated 6-4-1987. The above are the reasons in support of the said order. M . Y . H . /A-96/ K Revision partly allowed.