1984 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)- --Ss. 190, 195 & 476-Penal Code (XLV of 1860), Ss. 467/468 & 471-- Private complaint-Alleged forged documents produced in evidence in civil Court-Provisions of section 195 (1) (c), Cr. P. C. fully attracted-Magistrate, held, had no jurisdiction to take cognisance of offence on a private complaint unless provisions under sec tions 195 (1) (c) and 476 have been complied with-Order of Addi tional Sessions Judge setting aside proceedings before Magistrate started on private complaint upheld. K. G. Sabir for Petitioner. Muhammad Waris Khan for Respondents Nos. 1 and

2. Date of hearing: 7th March, 1984. This Criminal Miscellaneous petition has been filed under sec tion 561-A of the Criminal Procedure Code for quashment of the order of the learned Additional Sessions Judge, Mardan, dated 25th July, 1983 whereby the proceedings pending before the Magistrate, 1st Class, Mardan, on a complaint filed by the petitioner against the respondents, were quashed.

2. The facts of the case are that the petitioner submitted a complaint in the Court of Illaqa Magistrate on 14th June, 1982 wherein the respon dents were charged under sections 419/420/467/468/471 and 500, P. P. C. In the complaint the respondents are alleged to have produced certain forged documents in judicial proceedings. In appears that there was a dispute between the parties regarding shops Nos. 15 and 16 situate in Takht-bhai and the matter went up to the High Court. In the High Court some additional evidence was recorded and on the basis thereof the matter was decided in favour of the respondents. According to the complainant the documents produced in the civil Court were forged by the respondents and, therefore, they were liable to be prosecuted for the aforesaid offences. In response to the process issued by the Magistrate the respondents appeared in Court on 20th March, 1983 and submitted an application under section 249-A, Cr. P. C. on the ground that since the documents in question were considered and acted upon by the High Court, no objection to the genuineness of the documents could be taken at this stage. The contention did not prevail with a Magistrate for the reason that the issue before the High Court was purely of civil nature and the question of forgery of the documents was never raised before the Court. Therefore, there was nothing in law to prevent the complainant from initiating the criminal proceedings against the respondents. In this view of the matter, the application under section 249-A was rejected. The respondents filed an appeal before the Additional Sessions Judge, Mardan, which was treated as revision and accepted on 25th July, 1983. The learned Additional Sessions Judge came to the conclusion that the allegations made in the complaint could make out a case only under sections 467/468 and 471, P. P. C. and hence in view of section 195 (1) (c), Cr. P. C., the complaint was incompetently filed. Taking this view of the matter the proceedings in the complaint case were quashed.

3. In support of the petition it is contended that the learned Addi tional Sessions Judge had acted without jurisdiction in passing the impugned order because the powers of quashment were available only to the High Court under section 561-A, Cr. P. C. No doubt, the learned Additional Sessions Judge ordered the quashment of the proceedings but it is clear that he was exercising the revisional powers under section 439-A, Cr. P. C. whereunder he was competent to alter or reverse the order impugned before him. In view of the fact that the application under sec tion 249-A, Cr. P. C., was not disposed off by the Magistrate in accor dance with law, the learned Additional Sessions Judge, in revision, was competent to pass any appropriate order in the case. It does not appear from the order that the learned Additional Sessions Judge intended to quash the proceedings by reference to section 561-A, Cr. P. C. Since, the proceedings in the complaint were found to be without jurisdiction, the same could be set aside is the exercise of the revisional powers. The learned counsel for the petitioner relied on Abdullah Sheikh v. Amin Sheikh (1979 P Cr. L J 753) to contend that exercise of powers of quashment of proceedings under section 561-A9 Cr. P. C. by the learned Additional Sessions Judge in exercise of revisional jurisdiction was illegal. It may be mentioned that in the cited case the very words used by the learned Additional Sessions Judge showed that he had assumed the inherent powers of the High Court under section 561-A and quashed the proceedings to prevent abuse of the process of Court. In the case in hand no such words have been used in the impugned order and in fact it was intended to set aside the proceedings in the trial Court which were found to be without jurisdic tion. In Wasinda Ram v. Bahadar Khan (A I R 1934 Lah. 434) while accepting Criminal Re vision it was observed that:- "I have no doubt that on the allegations made by the petitioners no offence has been committed, and the proceedings must be set aside as an abuse of the process of the criminal Court. I accept the petition, quash the charges against the petitioners and acquit them." From the perusal of the impugned order; it is clear that the learned Additional Sessions Judge intended to set aside the proceedings in the complaint in the exercise of his revisional jurisdiction. Therefore, the mere fact that it was mentioned that the proceedings of the trial Court were quashed would be of no consequence. Particularly when there is nothing to show that he intended to exercise the inherent powers available to the High Court under section 561-A, Cr. P. C. It is also contended that section 195 (1) (c), Cr. P. C. would not be attracted to some of the offences mentioned in the complaint i. e., offences under sections 419/ 420 and 500, P. P. C. In this regard it may be mentioned that the inclu sion of certain offences in the complaint with a view to avoid the applicability of section 195 (1) (c), Cr. P. C., would not alter the legal position. The allegations in the complaint primarily disclose the commission of the offences under sections 467/468 and 471, P. P. C. and since the offences were allegedly committed during the proceedings before a civil Court, the cognizance thereof could only be taken by a complaint in writing of the Court concerned. In Ram Chand v. The State (P L D 1966 (W P) Kar. 207) a similar question came up for consideration wherein by reference to A I R 1953 S C 293, it is observed that:- Though in our judgment, section 195 does not bar the dial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of. the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an" offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence fails in the category of sections mentioned in section 195, Cr. P. C. Merely by changing the garb or label of an offence, which is essentially an offence covered by the provisions of section 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it." In view of the fact that the alleged forged documents were produced in evidence in the Civil Court, therefore, the provisions of section 195 (1) C (c), Cr. P. C., were fully attracted to the cast and the learned Additional Sessions Judge has rightly come to the conclusion that the complaint was incompetently filed by the petitioner. The Magistrate bad no jurisdiction to take cognizance of the offence on a private complaint unless the pro visions under sections 195 (1) (c) and 476, Cr. P. C. have been complied with.

4. For the aforesaid reasons, no fault can be found with the order of the learned Additional Sessions Judge impugned in this petition. The petition being without any merit is accordingly dismissed. M. Y. H. Petition dismissed.