Present:
Mr. Justice Mirza Hussain Haider
And
Mr. Justice Md. Nuruzzaman
Criminal Miscellaneous Case No. 15503 of 2008
Md. Suruj Sikder and others
… Petitioners
-Versus-
The State and another… opposite parties
Mr. Reaz Uddin Khan with
Mr. Sabbir Hamza Chowdhury, Advocates
… For the petitioners
Mr. Kazi Md. Shafiqul Hasan, Advocate
.. For the opposite party no.2
Mr.Md.Shoeb Khan, A.A.G
… For the state
Heard on : 01.103.11, 06.03.2011
Judgment on : 07.03.2011
Md. Nuruzzaman, J:
The instant Rule was issued calling upon the opposite parties to show cause as to why the proceedings of Shalikha Non-G-R. Case No. 143 of 2006 under sections 467, 468 and 471 of the Penal Code, now pending in the Court of Chief Judicial Magistrate, Magura, should not be quashed.
Facts relevant for disposal of the Rule, in brief, are that, Mir Layek Ali, the opposite party No.2, had some paternal lands, described in the schedule annexed to the complaint petition, being situated within the boundary of a fish farm owned by the accused No.1 Md. Suruj Ali Sikder (herein, the petitioner No.1), who was interested to purchase that land at a cheap price. On 03.09.2005 the accused persons i.e. the present petitioners, in collusion with each other, created a Bainapatra using the forged signature of Mir Layek Ali. On that bainapatra they contended that Mir Layek Ali executed the Bainapatra to sell the said land to Md. Suruj Ali Sikder settling the price of the schedule land at Tk.1,90,000/= out of which Md. Suruj Ali Sikder had paid Tk.80,000/= at the time of singing of the Bainapatra. The terms of alleged bainapatra was that Layek Ali would execute and register the sale deed of the land in favour of Suruj Ali Sikder by 30.12.2005 on receiving the rest of the amount of consideration. It is alleged that actually Mir Layek Ali neither signed any Bainapatra nor took any money from the said Suruj Ali Sikder. The accused persons claiming said forged Bainapatra as genuine one, asked for execution and registration of the sale deed by Layek Ali upon receiving the balance amount and lastly, on 30.12.2005 when Layek Ali denied to have received any money and as such also denied to execute and register the sale deed, Suruj Ali filed a complaint register case before the Upazila Magistrate Court, Salikha, being Petition Case No.4 of 2006. The learned Upzila Magistrate was pleased to send the case to the Shalikha Police Station to treat the same as first information report and take necessary steps for investigation. Accordingly, Shalikha P.S. G.R. Case No.34 of 2006 was started. However, in course of investigation, the investigation officer arranged to verify/examine the signature of Mir Layek Ali on the alleged Bainapatra with one of his admitted signatures by the handwriting expert. After conclusion of the investigation, the investigation officer found that the Bainapatra was not genuine as the handwriting expert opined that the signature of Layek Ali on the Bainapatra does not tally with his admitted one. Alleged Bainapatra is lying with the case record of Shalikha G-R-Case No.34 of 2006. On the above allegations the present opposite party No.1 i.e. Mir Layek Ali, filed a petition of complaint before the Magistrate first class, cognizance court, Shalikh Upazila, Magura under section 467/468/471 of the Penal Code. The learned Magistrate sent the petition of complaint to the Shalikha Police Station for investigation whereupon Non G.R. Case No.143 of 2006 under section 467/468/471 of the Penal Code was started.
Investigation officer, Sub Inspector of Police of the Shalikha Police Station, after investigation, having found the prima-facie case proved against the accused persons submitted police report (charge sheet) under section 467/468/471 of the Penal Code against the accused persons. After submission of the police report the Learned Magistrate accepted the same and transferred the case record to the court of Additional District Magistrate, Magura, for trial.
The learned Additional District Magistrate, Magura on 17.09.2007 fixed the case for charge hearing, on that date the accused persons filed application under section 241 A of the Code of Criminal Procedure for discharging them from the charge. The learned Additional District Magistrate after hearing the parties allowed the application of discharge in part and discharged accused petitioners No.2-5 from the charge by his order dated 17.9.2007 and framed charge only against the accused petitioner No.1, Md. Suruj Ali Sikder, under section 467/468/471 of the Penal Code.
Being aggrieved by the order dated 17.09.2007 passed by the learned Additional District Magistrate, Magura, in Shalikha P.S. Non G.R. Case No.143 of 2006, the informant, Mir Layek Ali filed Criminal Revision No.36 of 2007 under section 435 and 439 A of the Code of Criminal Procedure before the learned Sessions Judge, Magura who, after hearing the parties allowed the revision and set aside the Judgment and order dated 17.09.2007 passed by the learned Additional District Magistrate, Magura, by his Judgment and order 12.02.2008 and directed the Additional District Magistrate, Magura, to re-hear the charge hearing and frame charge in accordance with law.
Challenging the proceeding in Shalikha Non-G-R. Case No.143 of 2006 under section 467/468/471 of the Penal Code the accused petitioners filed the instant Criminal Miscellaneous Case, under section 561 A of the Code of Criminal Procedure, before this court and obtained the present Rule and stay.
Mr. Reazuddin Khan, the learned advocate appearing for the accused petitioners, upon placing the back ground of the case submitted that the accused petitioner Md. Suruj Ali Sikder, as complainant lodged a petition of complaint before the Upazila Magistrate, cognizance court Shalikha, Magura against the present opposite party No.2 Mir Layek Ali, under section 406/420 of the penal code which was registered as Shalikha P.S. Case No.4 dated 05.03.2006 corresponding to G.R. Case No.34 of 2006 wherein police submitted final report which was accepted by the court. But before conclusion of the said proceeding Layek Ali started the proceedings of the Shalikha Police Non-G.R. Case No. 143 of 2006 under section 467/468/471 of the penal code which is barred under sub section (c) (1) of section 195 of the Code of Criminal Procedure as the mandatory provisions of law are to be followed in initiating a case under section 467/468/471 of the Penal Code. Therefore, the initiation and continuation of the proceedings of the Shalikha Non-G.R.-Case No.143 of 2006 under section 467/468/471 of the Penal Code is nothing but an abuse of the process of the court. He further submitted that if the offence disclosed under section 467/468/471 of the Penal Code relates to any document, which has been submitted and used in any proceeding as evidence in any court then before filing of such case against a person the provision of section 195 (1) (c) of the Code of Criminal Procedure is required to be followed. But in the instant case the proceedings has been started without following the provision of section 195 (1) (c) of the Criminal procedure code, which is violation of law, as such the proceedings is liable to be quashed. In support of his submissions he relied on the case of Abdul Hai Khan and other-vs-the state and another reported in 40 D.L.R. (AD) 226; the case of Kamalapati Trivedi-vs-the state of west Bengal A I R 1979 (SC) 777; the case of Abdur Rahman-vs-the state 29 D.L.R. (SC) 256; the case of Seraj Uddoulla-vs-Abdul Kader 45 D.L.R. (AD) 101. He lastly submitted that the initiation and continuation of the proceeding of the instant case is thus being sheer abuse of the process of the court and to secure the ends of Justice the same is liable to be quashed.
Mr. Kazi Md. Shafiqul Hasan the learned Advocate appearing for the opposite party No.2 submitted that initiation and continuation of the proceedings of the Shalikha Police Station Non.G.R. Case No.143 of 2006 is not barred by sub-section (c) of section 195 (1) of the Code of Criminal Procedure because when the case was filed neither any proceeding was pending before any court nor the Bainapatra in question has been used as evidence before any court for which the provision of section 195 (1) (c) has no manner of application in the instant case as such the Rule is liable to be discharged. He further submitted that in the petition of complaint of Non G. R. Case No.143 of 2006 it has been clearly mentioned that they have produced the photocopy of the aforesaid Bainapatra, not the original, therefore, to prove the allegation it requires to examine the witnesses which are the disputed question of fact as such the Rule is not maintainable. He, lastly, submitted that on 04.01.2007 the learned Magistrate accepted the final report in the earlier case living Salikha P.S. G.R. Case No. 34 of 2006 (arising out of petition case No. 4 of 2006) and before that date the case was under investigation which was a police proceeding not a Judicial proceeding before any court. The instant case started on 31.07.2006, after the final report in the earlier case was accepted, thus under no circumstances the proceeding of the instant case attracted the provision of sub section (c) of section 195 (1) of the Code of Criminal Procedure. Therefore, the Rule is liable to be discharged.
In order to appreciate the submissions of the learned Advocates for the respective parties we have gone through the application and the annexures appended thereto and given our anxious consideration to their submissions.
The question is whether the proceeding of Shalikha P.S. Non G.R. Case No.143 of 2006 is an abuse of the process of the court.
Considering the materials on record it transpires that the accused petitioner Md. Suruj Ali Sikder admittedly filed the petition of complaint against the opposite party no.2 and others being Petition Case No.04 of 2006 under section 420/406 of the Penal Code before the Court of Shalikha Upazila Magistrate, cognizance court, on 03.01.2006 on the basis of Bainapatra dated 03.09.05. The learned Magistrate sent the petition of complaint to the officer-in-charge, Shalikha Police Station, to treat the same as first information report and to take necessary steps for investigation which gave rise to Shalikha Police Station Case No.4 dated 06.03.2006 corresponding to G.R. Case No.34 of 2006. During investigation the investigation officer took the opinion of handwriting expert and on the basis of the expert opinion submitted the final report which was accepted on 04.01.2007. But before accepting the final report of the aforesaid case accused Mir Layek Ali as complainant (herein opposite party No.2) on 31.07.2006 filed the petition of complaint before the court of Upazila Magistrate, Cognizance Court, Magura under section 469/468/471 of the Penal Code against the present petitioners which was sent to the Shalikha police station for investigation giving rise to the instant case. After investigation, the investigation officer submitted the charge sheet against the present petitioners. On receipt of the police report the case record was transferred to the court of Additional District Magistrate, who, after hearing the parties, framed charge under section 461/468/471 against the accused petitioner No. 1 and discharged the other accuseds.
Being aggrieved by the order of discharge passed by the Additional District Magistrate, complainant preferred criminal revision before the learned Sessions Judge, Magura.
In revision the learned Sessions Judge, set aside the order of the learned Additional District Magistrate with observation and directed the learned A.D.M. to re-hear the charge hearing and to pass order in accordance with law.
Now the question before us is whether the proceedings of the instant case is barred by sub section (c) of section 195 (1) of the Code of Criminal Procedure and the continuation of the said proceeding is abuse of the process of the court.
For the convenience of discussions and ready reference we feel it necessary to quote section 195 of the Code of Criminal Procedure, which reads as follows:-
Section 195- (1) No Court shall take cognizance-
(a) of any offence punishable under sections 172 to 188 of the Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;
(b) Of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or
(c) Of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) In clauses (b) and (c) of sub-section (1), the term ‘Court’ includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Registration Act, 1908.
(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of aCivil Courtfrom whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction suchCivil Courtis situate:
Provided that:-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and
(b) where appeals lie to a Civil and also toRevenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
(4) The provisions of sub-section (1), with reference to the offence named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.
(5) Where a complaint has been made under sub-section (1), clause (a), by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.
On a plain reading and close scrutiny of section 195 of the Code of Criminal Procedure, as quoted above, it appears that the provision of this section is mandatory and in absence of a complaint lodged accordingly, as required by the section, no court can take cognizance of an offence described therein.
On perusal of the first information report of the Non G. R. Case No.143 of 2006 of Shalikha P. S. it appears that it discloses the offence described in section 463 which is punishable under section 471 of the Penal Code. On further Perusal of the said F.I.R. (annexure-“A”) it appears that informant admitted that the whole basis of his case is the out come of the alleged Bainapatra dated 03.09.2005, which was produced before the court of Upazila Magistrate, Cognizance Court, Shalikha, Magura to start the proceedings of Petition Case No.4 of 2006 which gave rise to Shalikha P.S. G.R. Case No. 34 of 2006 under section 420/406 of the Penal Code and to make it clear we may refer some portions of the petition of complaint as contained in the Shalikha Non G.R. case No. 143 of 2006 which are as follows:-
“Avmvgxiv Avgvi m¦v¶i Rvj Kwiqv GKUv Rvj evqbv bvgv m„wó Kwiqv RvwjqvwZ Kwiqv‡Q Ges †mB Rvj evqbv bvgv (`wjj) LvwU wnmv‡e e¨envi Kwiqv MZ 30/01/06 Zvwi‡L ‡gvKvg kvwjLv Dc‡Rjv †dŠR`vix Av`vj‡Z AvgviI Avgvi KZK m¦v¶x‡`ibv‡g GKU wg_¨v gvgjv `v‡qi Kwiqv‡Qb hvnvi b¤¦i kvwjLv wc 4/06 eZ©gvb b¤¦i kvwjLv wR, Avi 34/06 aviv 406/420 `t wet †h gvgjv AvBbvbyM e¨e¯nv Mªn‡bi Rb¨ kvwjLv _vbvq †cÖwiZ nB‡j kvwjLv _vbv gvgjv †iKW© Kwiqv Z`šZ Kv‡j Rvj evqbv bvgvq Avgvi m¦v¶i I Avgvi bgybv m¦v¶i Mªnb Kwiqv pvKvq n¯Z‡jLv wekvi‡`i (Hand Writing Expert) Øviv cix¶v Rvj evqbv bvgvi m¦v¶i Avgvi m¦v¶i bv g‡g© gZvgZ w`qv cÖgvb Kwiqv‡Qb †h, AÎ gvgjvi Avmvgxiv Avgvi m¦v¶i Rvj Kwiqv GKUv Rvj evqbv bvgv m„wó Kwiqv‡Q| eZ©gv‡b Rvj evqbv bvgvwU kvwjLv wR, Avi 34/06 bs †gvKÏgvi bw_‡Z msiw¶Z Av‡Q| AÎmvr D³Rvj evqbv bvgvi GKUv d‡Uv Kwc `vwLj Kwijvg| m¦v¶xiv NUbv Rv‡b|”
So, from the above statement of the informant it is crystal clear that in the proceeding of G. R. Case No.34 of 2006, under section 406/420 of the Penal Code, the alleged Bainapatra has been produced and used. Thus the said proceeding was not merely a police proceeding but it was clearly a Judicial Proceedings because while such proceedings was so pending the accuseds were enlarged on bail and thereafter the learned Magistrate passed the order to take the opinion of the handwriting expert regarding the genuinety of the signature in the Bainapatra with the admitted signature of Mir Layek Ali, the opposite party No. 2 herein. From the above fact it is clear that the learned Magistrate applied his judicial discretion. It further appears that on 04.01.2007 when the final report was accepted, i.e. before conclusion of that proceeding the opposite party No.2 on 31.7.2006started the instant proceeding being G.R. case No.143 of 2006.
In our jurisdiction it is now well settled that taking cognizance of a case under section 461/468/471 of the Penal Code, without a written complaint filed by the concerned court, where the alleged document was produced or given in evidence is illegal and without jurisdiction and as such filing of such case at the instance of a private party and initiation and continuation of any such proceeding, wherein offence discloses under the definition of section 463 and punishable under section 467/468/471 of the Penal Code, without complying with the provision of section 195 of the Code of Criminal Procedure, is nothing but an abuse of process of the court.
In this regard we may profitably refer to the case of Abdul Hai Khan and others-vs-the state and another reported in 40 D.L.R. (AD) 226, wherein it has been held.
“In the instant case, the Bainapatra appears to have been forged by one of the appellants who thereafter produced it in the proceeding, namely the suit for specific performance of a contract described in it. Both the offences-forgery and use of a forged document are closely linked with each other and as such these offences clearly fall very much within the ambit of section 195 (C). No cognizance thereof can be taken except on a complaint by the court.”
In the present case 1st question is whether the order dated 06.03.2006 passed in Petition Case No.4 of 2006 directing the Shalikha Police to treat the petition of complaint as F.I.R. and during the period of investigation the learned Magistrate passed further orders in the proceeding of the said case are the Judicial function or supervisory/executive function of the Magistrate.
In order to appreciate the above question we need to examine the provision of law and the authorities in Judicial review.
As it appears to us that in earlier case the Bainapatra in question produced in the court of learned Magistrate of cognizance court, who sent the same to the police for treating the same as F.I.R. and investigate the matter and while the case was so pending the learned Magistrate was pleased to enlarged the accused persons on bail and accorded permission to send the alleged bainapatra to the handwriting expert for his openion. After investigation the police submitted final report and prayed for sanction to prosecute the informant under section 211 and 109 of the Penal Code
In this regard we can mention to the case of Seraj Uddowla-vs-Abdul Kader wherein a High Court Division, at Chittagong, Bench, in Criminal Revision No.53 of 1984, relying upon some decisions of Kolkata High Court, namely Haibat Khan, ILR Cal-30, Tayabullah I.L.R. 43 Cal-1152 A.I.R. 1917, Cal 593. Ganga Prasad, A.I.R. 1991 Cal 263, took the view and observed thus:
“It is well settled that a proceeding before a Magistrate within the meaning of section 195 Cr.P.C. commences when a complainant makes a complaint before him alleging facts constituting an offence or when a Magistrate takes cognizance of an offence upon a report in writing of such facts by a police officer or when a magistrate takes cognizance of an offence upon receipt of information from a person other than a Police Officer or when the Magistrate does not accept the final report submitted by the police officer after investigation and continues the proceeding against the accused on the basis of narazi petition or suo-motu ordering enquiry or examining witnesses. Orders passed by a Magistrate in respect of a case initiated on the basis of an FIR lodged by an informant at the Police Station ending in discharge of the accused on acceptance of Final Report are not proceedings in a court within the meaning of section 195 CrPC as it is merely in the category of the “Police Proceedings” under Chapter XIV of the Code of Criminal procedure although such information to the police may come within the ambit of the expression “falsely charges any person” as used in section 211 of the Penal Code.”
Against the said order of the High Court Division in the above case our apex court, after discussing the relevant law in the appeal, reversed the Judgment of the High Court Division in the light of the decision given by the Indian Supreme Court in the case of Kamala Pati Trivedi-vs-the state of west Bengal, reported in A.I.R. 1979 (SC) 777, as decided by their lordships in the case of Serajuddola-vs-Abdul Kader and another reported in 45 D.L.R. (AD) 101 our apex court has held:
“During the pendency of police investigation of a cognizable cases the steps that are taken before the Magistrate in relation to production of the accused, granting of bail, etc have held to be proceeding before a court and the functioning of the Magistrate in his Judicial capacity.”
Thus the decision in 45 DLR(AD) 101 being the latest position of law dictated by the Appellate Division we hold that the decision given by the Magistrate in the earlier proceeding wherein the Bainapatra in question has been produced is decision given under his judicial capacity. The earlier proceeding being pending, at least on 31.7.2006. As such the complaint lodged by a private party, namely, the present opposite party No.2, not by the court concerned, during the pendency of the earlier proceeding is barred under section 195 (1) (c) of the Code of Criminal Procedure.
Further more, if we read sub section (c) of section 195 (1) along with section 195 (4) of the Code of Criminal Procedure, it would be clear that the offences referred to in sub section (c) when committed in pursuance of conspiracy or in the course of the some transaction, the same will fall within the ambit of sub-section (4) of section 195 including their abetments or attempts independent of the dates of their commission. So, clause (c) of section 195 (1) of the Code of Criminal Procedure bars the jurisdiction of a criminal court to take cognizance upon a private complaint of certain offences committed by a party to any proceeding in a court in respect of documents when used or produced in that proceeding which empowers only that court, before which the proceeding is taken, to make such complaint.
So, we have no hesitation to hold that the alleged Bainapatra has been used in the proceeding of the earlier Petition Case No.4 of 2006 corresponding to G.R. Case No.143 of 2006 and on the basis of the Bainapatra in question, the cognizance court has passed the order dated 06.03.2006 and other order regarding granting of bail of the accuseds, and obtaining the handwriting expert’s opinion on the signature in the alleged Bainapatra was a proceeding pending before that court. As such during the pendency of such proceeding a complaint lodged by the present opposite party No.2, a private party, not by the concerned court is completely barred under section 195(1)© of the Code of Criminal Procedure.
For the discussions made above, we are of the view that the orders passed by the learned Magistrate in the earlier proceeding of the G. R. case No.34 of 2006, no doubt, were judicial orders, not administrative or supervisory orders. So, only that court has the jurisdiction to make a complaint not a private party.
Moreover, the facts and circumstances of the case, as has been disclosed in the petition of complaint of the instant case in its entirety, are not well founded. So, the submissions advance by the learned Advocate for the opposite party No.2 are not the correct exposition of facts and law and as such not-tenable in law. On the contrary the grounds urged by the learned Advocate for the petitioners being the correct exposition of the facts and law of the instant case the same prevail and appear to have a good deal of force.
In the light of the discussions made herein above we are of the view that initiation and continuation of the proceeding of Shalikha P.S. Non G.R. Case No.143 of 2006 under section 467/468/471, Penal Code, is barred by section 195 (1) (c) of the Code of Criminal Procedure, as such the continuation of the said proceeding is abuse of the process of the court.
Thus, the Rule having merit, it succeeds.
In the result, the Rule is made absolute. The proceedings of the Shalikha Non-G.R. Case No.143 of 2006, now pending before the Chief Judicial Magistrate, Magura, is hereby quashed.
Office is directed to communicate the order at once.
Mirza Hussain Haider, J:
I agree.