criminal appellate jurisdiction criminal appeal number
341 of 1975.
appeal by special leave from the judgment and order
dated 19-4-1974 of the karnataka high companyrt in criminal
appeal number. 324 and 335 of 1973.

nettar and r. c. kaushik for the appellant. ram reddy and a. v. v. nair for respondent number 1.
the judgment of the companyrt was delivered by
varadarajanj. this appeal by special leave has been
filed by the state of karnataka against the judgment of a
division bench of the karnataka high companyrt in criminal
appeals number. 324 and 335 of 1973 against the acquittal of
hemareddy alias vemareddy  a-1  in crl. a. number 324 of 1973
and against the order in crl. a. number 335 of 1973 modifying
the sentence awarded by the learned sessions judge raichur
to pyatal bhimakka  a-2  in sessions case number 25/72. the
learned sessions judge companyvicted hemareddy alias vemareddy
under s. 467 read with s. 114 and s. 193 indian penal companye
and sentenced him to undergo r.i. for two years and to pay a
fine of rs. 500/- and in default to undergo r. i. for three
months under s. 467 read with s. 114 and to undergo r.i. for
six months and to pay a fine of rs. 200/-and in default to
undergo r.i. for one month for the offence under s. 193

p.c. he companyvicted pyatal bhimakka  a-2  the appellant in
crl. a. number 335 of 1973 before the high companyrt under s. 467

p.c. and sentenced her to undergo r.i. for six months and
to pay a fine of rs. 200/- and in default to undergo r.i.
for one month. both the accused filed appeals before the
high companyrt against their companyvictions and sentences awarded
to them by the learned sessions judge. in crl. a. number 324 of 1973 filed by hemareddy alias
vemareddy the learned judges held that on the facts there
could be numberdoubt
that he is guilty under s. 467 read with s. 114 and s. 193

p.c. in the appeal filed by pyatal bhimakka crl. a. number
335/73 also the learned judges found that there companyld be no
doubt that she is guilty under s. 467 i.p.c. they companyfirmed
the companyviction of pyatal bhimakka observing that she forged
the document independently of hemareddy alias vemareddy but
taking into companysideration the fact that pyatal bhimakka is
an illiterate women who had been taken to the office of the
sub-registrar by hemareddy alias vemareddy and asked to put
her thumb impression to the document and to admit execution
of the document which she did for which hemareddy alias
vemareddy paid her a sum of rs. 100/- the learned judges
felt that the sentence awarded to pyatal bhimakka by the
learned sessions judge was harsh and that the ends of
justice would be met by sentencing her to undergo rigorous
imprisonment for one day which she had already undergone
before she was probably released on bail and to pay a fine
of rs. 200/- and in default to suffer r.i. for a period of
one week and thus modified the sentence awarded to pyatal
bhimakka accordingly. the state has filed the appeal by
special leave also against this order modifying the sentence
awarded to pyatal bhimakka. the learned judges of the high companyrt however
acquitted hemareddy alias vemareddy the appellant in crl. number 324 of 1973 and set aside the sentence awarded to him
by the learned sessions judge on the ground that the
complaint in the criminal case which ended in the companyviction
of both accused in the sessions companyrt was filed by the
private individual narsappa eliger p.w. 3 and number by the
civil companyrt. as stated earlier the criminal appeal has been
filed by the state against the acquittal of hemareddy alias
vemareddy by the high companyrt. it is necessary to set out briefly the facts of the
case. one narsappa is the son of one thimmaiah who had an
elder brother nagappa thimmaiah and nagappa were the sons of
one thayappa. nagappas wife was one bhimakka alias
bhieamma. thimaiaha and nagappa lived for sometime in
underaldoddi. nagappa purchased lands bearing survey number. 93 94 and 96 in underaldoodi. those lands were in the
possession and enjoyment of narsappas father thimmaiah. subsequently nagappa and his wife left underaldoddi and
settled down in alkur village. while nagappa was living in
alkur village he mortgaged the aforesaid lands with
possession to one kurbar bhimayya the father of hemareddy
alias vemareddy a-1. according to the terms of the
mortgage kurbar bhimayya was to be in possession of the
lands for twenty years and surrender possession thereof to
the
owner after the expiry of the period. subsequently nagappa
and his wife as well as nagappas brother thimmaiah came and
settled down at raichur. bhimakka alias bhisamma the wife
of nagappa died in or about 1953 and nagappa died two or
three years later. nagappas brother also died leaving
behind him his son narsappa as the only heir in the family. meanwhile kurbar bhimayya the mortgagee and father of
hemareddy alias vemareddy  a-1  died. hemareddy alias
vemareddy companytinued in possession of the lands. narsappa
son of nagappas brother thimmaiah executed a will in favour
of the companyplainant narsappa eliger bequeathing the
aforesaid lands to him. narsappa eliger the legatee under the will of
thimmaiahs son narsappa approached hemareddy alias
vemareddy the son of the mortgagee kurbar bhimayya who was
in possession of the lands and requested him to surrender
possession of the lands on the ground that the period of
twenty years had expired. then hemareddy alias vemareddy
informed the companyplainant narsappa eliger that he would
consider his request a few days later as it was harvesting
time. finding that there was numberresponse from hemareddy
alias vemareddy narsappa eliger wrote a letter for which
according to the prosecution hemareddy alias vemareddy sent
the reply ex. p-3 subsequently narsappa eliger filed a
suit for redemption of the mortgage. subsequent to the
institution of the suit narsappa eliger came to knumber from
shivareddy  p.w. 12  that hemareddy alias vemareddy has
purchased the lands in question from pyatal bhimakka  a-2
and anumberher and that a-2 had impersonated the real owner
bhimakka wife of nagappa who as stated earlier had died
in or about 1953. thereupon narsappa eliger made inquiries
in the office of the companycerned sub-registrar and learned
that the sale deed had been registered on 10-11-1970. after
obtaining a registration companyy of the sale deed and after
making inquiries at alkur narsappa eliger learnt that pyatal
bhimakka  a-2  had numberproperties of her own. narsappa eliger
thereafter filed a criminal companyplaint in the companyrt which
was referred to the police. after investigation the sub-
inspector of police p.w. 21 filed a charge-sheet against
both the accused and two others alleging that they had
conspired to cheat narsappa eliger and to deprive him of the
lands and that in pursuance of that companyspiracy they put
forward pyatal bhimakka as nagappas wife bhimakka and got
the sale deed executed by her and they thereby companymitted
offences under ss. 120b 193 465 467 468 and 420 read
with s. 114 of the indian penal companye. only hemareddy alias
vemareddy and pyatal bhimakka a-1 and a-2 were companymitted to
the companyrt of sessions at raichur and they were found guilty
and companyvicted and sentenced as mentioned above. we were taken through the judgment of the learned
judges of the high companyrt. we are satisfied that the learned
judges were justified
in companying to the companyclusion on the evidence that hemareddy
alias vemareddy is guilty under s 467 read with s. 144

p.c. and that pyatal bhimakka is guilty under s. 467

p.c. since we agree with the learned judges of the high
court on the question of fact in so far as it relates to a-2
in full and as regards hemareddy alias vemareddy  a-2  in
respect of his companyviction under s. 467 read with s. 114 it
is unnecessary for us to refer to the evidence relied upon
by the learned judges for companying to the companyclusion that
hemareddy alias vemareddy is guilty under s. 467 read with
s.114 i.p.c. and that pyatal bhimakka is guilty under s. 467

p.c. this companyrt has observed in girija nandini devi v.
bigendra nandini choudry that it is number the duty of the
appellate companyrt when it agrees with the view of the trial
court on the evidence to repeat the narration of the
evidence or to reiterate the reasons given by the trial
court expression of general agreement with reasons given by
the companyrt the decision of which is under appeal will
ordinarily suffice. we shall deal with the case of the
prosecution. against hemareddy alias vemareddy under s. 193

p.c. separately. we therefore companyfirm the companyviction of
hemareddy alias vemareddy under. s. 467 read with s. 114

p.c. all and of pyatal bhimakka under s. 467 i.p.c. we are
of the opinion that numberinterference with the judgment of the
learned judges of the high companyrt in regard to the sentence
awarded to pyatal bhimakka is called for having regard to
the fact that the learned judges have given sufficient
reasons for taking a lenient view in regard to that accused
on the question of sentence. we therefore dismiss the
criminal appeal in so far as it relates to the question of
sentence awarded to pyatal bhimakka. it is seen from the judgment under appeal that the
learned public prosecutor of karnataka had companytended before
the learned judges of the high companyrt that the case against
hemareddy alias vemareddy for fabricating false evidence may
number be maintainable in view of the provisions of s.
195 1  b  of the companye of criminal procedure that he may be
prosecuted for abetting the offence of forgery and that the
conviction of that accused under s. 467 read with s. 114

p.c. is justified on the facts of this case for while s.
193 i.p.c. is one of the sections mentioned in s. 195 1  b
of the companye of criminal procedure s. 467 i.p.c. is number
mentioned in that sub-clause of s. 195 1 . the learned
judges rejected that submission relying upon three
decisions of the madras high companyrt in perianna muthirian v.
vengu ayyar ravanaoppa reddy v. emperor and in re. v.v.l. narasimurthy. in the first of those cases the companyplainant
stated
that certain persons companyspired with others and forged a
document with the object of using it in evidence in certain
proceedings pending in a companyrt and other proceedings which
might follow. that document was actually used in the
proceedings pending before a companyrt and it has been held
that the offence companyplained of fell under s. 195 1   b  of
the companye of criminal procedure and therefore the companyplaint
cannumber be taken companynizance of unless it was in writing and
by the companyrt in which the offence was alleged to have been
committed. it has been observed in that decision that to
hold in such a case that although a private person was
barred from prosecuting the accused for fabricating false
evidence he would still be at liberty to prosecute him for
fraud would result in the provisions of s. 195 1   b  of the
code of criminal procedure being evaded and that it is number
open to the companyrt to try the accused either for fabricating
evidence or for fraud because the specific offence of
fabricating false evidence should be given preference over
the more general offence of forgery. in the second case the
complaint was filed by a private person alleging that the
accused had fabricated a promissory numbere and induced a third
party to file a suit against the companyplainant so as to obtain
a fraudulent decree and it has been held that the
allegation made in the companyplaint attracted the provisions of
s. 195 1   b  of the companye of criminal procedure and the
court must refuse to take companynizance. in the third case
somasundaram j. has observed
the main point on which mr. jayarama aiyar
appearing for the petitioner seeks to quash this
committal is that on the facts an offence under s. 193

p.c. is disclosed for which the companyrt cannumber take
cognizance without a companyplaint by the companyrt as provided
under s. 195 1  b  criminal p.c. the first question
which arises for companysideration is whether on the facts
mentioned in the companyplaint an offence under s. 193

p.c. is revealed. section 193 reads as follows
whoever intentionally gives false evidence in any
stage of a judicial proceeding or fabricates false
evidence for the purpose of being used in any stage of
a judicial proceeding shall be punished with
imprisonment of either description for a term which may
extend to 7 years and shall also be liable to fine. fabrication of false evidence is defined in s.

the relevant part of it is
whoever causes any circumstance to exist
intending that such circumstance may appear in evidence
in a judicial proceeding and that such circumstance may
cause any person who in such proceeding is to form an
opinion upon the
evidence to entertain an erroneous opinion touching any
point material to the result of such proceeding is said
to fabricate false evidence. the effect of the allegations in the companyplaint
preferred by the companyplainant is that the petitioner has
caused this will to companye into existence intending that
such will may cause the judge before whom the suit is
filed to form an opinion that the will is a genuine one
and therefore his minumber daughter is entitled to the
property. the allegation therefore in the companyplaint
will undoubtedly fall under s. 192 i.p.c. it will
therefore amount to an offence under s. 193 i.p.c. i.e. fabricating false evidence for the purpose of
being used in the judicial proceeding. there is no
doubt that the facts disclosed will also amount to an
offence under ss. 467 and 471 i.p.c. for prosecuting
this petitioner for an offence under ss. 467 and 471 a
complaint by the companyrt may number be necessary as under s.
195 1  c  criminal p.c. a companyplaint may be made only
when it is companymitted by a party to any proceeding in
any companyrt. mr. jayarama aiyar does number give up his companytention
that the petitioner though he appears only a guardian
of the minumber girl is still a party to the proceeding. but it is unnecessary to go into the question at the
present moment and i reserve my opinion on the question
whether the guardian can be a party to a proceeding or
number as this case can be disposed of on the other
point viz. that when the allegations amount to an
offence under s. 193 i.p.c. a companyplaint of companyrt is
necessary under s. 195 1  b  criminal p.c. and this
cannumber be evaded by prosecuting the accused for an
offence for which a companyplaint of companyrt is number
necessary. we agree with the view expressed by the learned judge
and hold that in cases where in the companyrse of the same
transaction an offence for which numbercomplaint by a companyrt is
necessary under s. 195 1  b  of the companye of criminal
procedure and an offence for which a companyplaint of a companyrt is
necessary under that sub-section are companymitted it is number
possible to split up and hold that the prosecution of the
accused for the offences number mentioned in s. 195 1  b  of
the companye of criminal procedure should be upheld. however it is number possible to agree with the learned
judges of the high companyrt that the companyplaint in this case
given by the private individual narsappa eliger p.w. 3
against hemareddy alias vemareddy for the offence under s.
467 read with s. 114 i.p.c. is number companynizable and
that s. 195 1  b  of the criminal procedure companye is
attracted so far as hemareddy alias vemareddy is companycerned. the document forged by pyatal bhimakka a-2 is a sale deed
dated 10-11-70. the suit for redemption of the mortgage was
filed by the companyplainant narsappa eliger p.w. 3 on 17-11-

he filed the companyplaint before the police on 24-11-70 and
before the companyrt subsequently on 15-12-70. it is number
disputed that the forged sale deed dated 10-11-70 was number
produced in the suit filed by the companyplainant for redemption
of the mortgage. mr. p. ram reddy learned companynsel appearing
for a-1 who assisted the companyrt as amicus curiae for pyatal
bhimakka a-2 invited our attention to the decision in re. vasudeo ramchandra joshi and submitted that the companyplaint
should have been filed by the companyrt in which the suit for
redemption of the mortgage was filed by the companyplainant
narsappa eliger in view of the provisions of s. 195 1  b  of
the companye of criminal procedure and that as the companyplaint was
filed directly by the private individual the prosecution of
hemareddy alias vemareddy for offences under s. 467 read
with s. 114 i.p.c. and s. 193 i.p.c. is bad. in that
decision reference has been made to the decisions of the
bombay high companyrt in  1912  14 bombay law reporter 362 and

in that case there was a proceeding before the
magistrate at bhusaval against one vana khusal in respect of
the charge under s. 401 i.p.c. an application was made for
bail on behalf of that person by vasudeo ramachandra joshi
the petitioner before the high companyrt but that application
was refused on april 1 1922. the statements of three
witnesses were recorded under s. 164 criminal procedure
code on april 18 1922 from which it appeared that on april
10 1922 those three witnesses had an interview with the
pleader vasudeo ramachandra joshi and he had instigated them
to give false evidence. on april 15 1922 anumberher case
against vasudeo ramachandra joshi in respect of a dacoity
was sent up to the magistrate. the case of the prosecution
was that in companynection with that case of dacoity the alleged
instigation by the pleader to give false evidence was made. those witnesses were examined before the magistrate on june
2 1922 in the dacoity case and on june 7 1922 a companyplaint
was filed by the police against vasudeo ramachandra joshi
charging him with having abetted the giving of false
evidence. the learned judges of the bombay high companyrt who
heard the civil revision case have observed
on behalf of the crown it is urged that no
sanction is necessary because at the date of alleged
abetment numberproceeding in relation to which the offence
is said to have been companymitted was pending. it is
contended that the offence
had numberrelation to the proceedings pending on april 10
and that the proceedings to which it related were sent
up to the magistrate on april 19 and were number pending
at the time. it is quite clear however from the very nature
of the offence alleged against the present petitioner
that if the offence was companymitted it was companymitted in
relation to the proceeding in which those three persons
were to be examined as witnesses and it is difficult
to understand how it companyld be said that the present
proceedings against the petitioner companyld go on without
the sanction of the companyrt before which these
proceedings are pending at present and in relation to
which the offence is said to have been companymitted. i
assume without deciding that the offence alleged
against the petitioner related to the budhgaon dacoity
case and number to the case under s. 401 indian penal
code then actually pending even then the offence
related to proceedings which were clearly under
contemplation then and which were sent up to the
magistrate on april 15. the expression used in s.
195 1   b  is wide enumbergh to companyer such a proceeding
and the decisions of this companyrt in re khanderao  1912
14 bombay l.r. 362 and in re mahadev yadneshwar  1912
14 bombay l.w. 715 support that companyclusion. i am
unable to follow the reasoning adopted by the learned
magistrate in holding that numbersanction is necessary. we therefore quash the present proceedings without
prejudice to any proceeding that may be taken after
obtaining the necessary sanction. i may also point out that the prosecution of a
pleader defending an accused person while that
proceeding is pending and before the evidence of the
witnesses who are said to have been instigated to give
false evidence has been appreciated by the companyrt is
inadvisable. if such a prosecution is to be started it
ought to be started after the principal proceeding in
relation to which the offence is said to have been
committed has terminated. we are of the opinion that it is number possible to agree
with the view of the learned judges expressed in that case
that even when the offence of instigating the witnesses to
give false evidence was companymitted in relation to a
proceeding which was number actually pending in the companyrt but
was only under companytemplation the provisions of s. 195 1   b
of the companye of criminal procedure would be attracted. the decisions in 1912  14  bombay law report 362 and
715 would number apply to the facts of the present case for
whereas in those cases the false evidence had been actually
put in evidence in the present case as already stated the
forged sale deed dated 10-11-70 was number at all tendered by
hemareddy alias vemareddy in the redemption suit filed by
the companyplainant narsappa eliger on 17-11-70 at any stage of
the proceedings in that suit. in the first of these two
decisions-re. khanderao yeshwant the petitioner before the
bombay high companyrt a policeman was present in a village
dhanchi on 20-2-1911 in relation to work about census and on
that day a panchnama was filed in that village in regard to
an offence alleged to have been companymitted by a certain
talukdar under the arms act. the investigation into the
alleged offence was number made by the petitioner police
constable but by the village companystable shamserkhan who sent
up the case to the sub-inspector by whom in turn it was
committed to a magistrate. in the companyrse of trying the
alleged offence the magistrate found that certain recitals
in the panchnama were false. the talukdar was discharged as
the magistrate came to the companyclusion that the charge
imputed to him was false. in that view he issued a numberice to
the village companystable shamserkhan as to why sanction for
prosecution should number be granted under s. 195 crl. p.c. after hearing shamserkhan the magistrate issued numberice
against the police companystable and on 8-9-1911 directed the
prosecution of the police companystable under s. 211 i.p.c. thus
it is seen that the panchnama companytaining false recitals
prepared by the police companystable was actually used in a
criminal proceeding against the talukdar who had been
implicated as a culprit in the panchnama. in the second case
re mahadev yadneshwar joshi mahadev and five others were
being prosecuted for offences under s. 193 read with s. 109

p.c.-in that they were alleged to have abetted the making
of a false statement during the police investigation in a
theft case. the theft case was subsequently tried by a
magistrate who companyvicted the accused. the appeal filed
against the companyviction by the magistrate was unsuccessful. during the trial the accused raised an objection that before
they companyld be prosecuted sanction of the companypetent companyrt
should have been obtained. the magistrate over-ruled the
objection. the learned judges of the bombay high companyrt held
that sanction was necessary and that the offences cannumber be
tried in the absence of a companyplaint by a companyrt before which
the evidence which is number said to be fabricated was
adduced. in that case also the fabricated evidence had been
actually used in a criminal proceeding and s. 195  1   b  of
the companye of criminal procedure was therefore attracted. but
in the present case as stated earlier the fabricated sale
deed dated 10-11-70 had number
been put in evidence at any stage of the suit for redemption
filed by the companyplainant narsappa eliger in the civil companyrt
on 17-11-1970.
mr. n. nettar appearing for the state invited our
attention to the decision of this companyrt in patel laljibhai
somabhai v. the state of gujarat. in that case the appellant
before this companyrt had filed a suit for recovery of a certain
amount on the basis of a forged cheque. a private companyplaint
was filed in the companyrt of a judicial magistrate against the
appellant and anumberher person under ss. 467 and 471 i.p.c. the magistrate prima facie found on the evidence that the
appellant had fraudulently used in the civil companyrt a forged
document and he companymitted the appellant to sessions for
trial. the appellant raised an objection that under s. 195
 1   c  of the companye of criminal procedure numbercognizance of
the offence companyld be taken on a private companyplaint. the high
court upheld the companymittal order. but this companyrt held on the
scope and effect of s. 195  1  c  and its applicability to
cases where a forged document had been produced as evidence
in a judicial proceedings by a party thereto and the
prosecution of that party sought for offences under ss. 467
and 471 i.p.c. that the words to have been companymitted by a
party to any proceeding in any companyrt according to s. 195
 1   c  mean that the offence should be alleged to have been
committed by the party to the proceeding in his character as
such party that is after having become a party to the
proceeding. this companyrt has observed
we are directly companycerned only with cl.  c  of s.
195 1 . what is particularly worth numbering in this
clause is  i  the allegation of companymission of an
offence in respect of a document produced or given in
evidence in a proceeding in a companyrt and  ii  the
commission of such offence by a party to such
proceeding. the use of the words in respect of in the
first ingredient would seem to some extent to enlarge
the scope of this clause. judicial opinion however
differs on the effect and meaning of the words to have
been companymitted by a party to any proceeding in any
court. as cl.  b  of s. 195 1  does number speak of
offence companymitted by a party to the proceeding while
considering decisions on that clause this distinction
deserves to be borne in mind. broadly speaking two
divergent views have been expressed in decided cases in
this companynection. according to one view to attract the
prohibition companytained in cl.  c  the offence should be
alleged to have been companymitted by the party to the
proceeding in his character as such party which means
after having
become a party to the proceeding whereas according to
the other view the alleged offence may have been
committed by the accused even prior to his becoming a
party to the proceeding provided that the document in
question is produced or given in evidence in such
proceeding. the language used seems to us to be capable
of either meaning without straining it. we have
therefore to see which of the two alternative
constructions is to be preferred as being more in
accord with the legislative intent keeping in view the
statutory scheme and the purpose and object of enacting
the prohibition companytained in s. 195 1  c . the underlying purpose of enacting s. 195 1   b
and  c  and s. 476 seems to be to companytrol the
temptation on the part of the private parties
considering themselves aggrieved by the offences
mentioned in those sections to start criminal
prosecutions on frivolous vexatious or insufficient
grounds inspired by a revengeful desire to harass or
spite their opponents. these offences have been
selected for the companyrts companytrol because of their
direct impact on the judicial process. it is the
judicial process in other words the administration of
public justice which is the direct and immediate
object or victim of these offences and it is only by
misleading the companyrts and thereby preventing the due
course of law and justice that the ultimate object of
harming the private party is designed to be realised. as the purity of the proceedings of the companyrt is
directly sullied by the crime the companyrt is companysidered
to be the only party entitled to companysider the
desirability of companyplaining against the guilty party. the private party designed ultimately to be injured
through the offence against the administration of
public justice is undoubtedly entitled to move the
court for persuading it to file the companyplaint. but such
party is deprived of the general right recognized by s.
190 cr. p.c. of the aggrieved parties directly
initiating the criminal proceedings. the offences about
which the companyrt alone to the exclusion of the
aggrieved private parties is clothed with the right to
complain may therefore be appropriately companysidered to
be only those offences companymitted by a party to a
proceeding in that companyrt the companymission of which has a
reasonably close nexus with the proceedings in that
court so that it can without embark-
ing upon a companypletely independent and fresh inquiry
satisfactorily companysider by reference principally to its
records the expediency of prosecuting the delinquent
party. it therefore appears to us to be more
appropriate to adopt the strict companystruction of
confining the prohibition companytained in s. 195  1   c
only to those cases in which the offences specified
therein were companymitted by a party to the proceeding in
the character as such party. it may be recalled that
the superior companyrt is equally companypetent under s. 476a
cr. p.c. to companysider the question of expediency of
prosecution and to companyplain and there is also a right
of appeal companyferred by s. 476b on a person on whose
application the companyrt has refused to make a companyplaint
under s. 476 or s. 476a or against whom such a
complaint has been made. the appellate companyrt is
empowered after hearing the parties to direct the
withdrawal of the companyplaint or as the case may be
itself to make the companyplaint. all these sections read
together indicate that the legislature companyld number have
intended to extend the prohibition companytained in s.
195 1  c  crl. p.c. to the offences mentioned therein
when companymitted by a party to a proceeding in that companyrt
prior to his becoming such party. it is numberdoubt true
that quite often-if number almost invariably-the documents
are forged for being used or produced in evidence in
court before the proceedings are started. but that in
our opinion cannumber be the companytrolling factor because
to adopt that companystruction documents forged long
before the companymencement of a proceeding in which they
may happen to be actually used or produced in evidence
years later by some other party would also be subject
to ss. 195 and 476 crl. p.c. this in our opinion would
unreasonably restrict the right possessed by a person
and recognized by s. 190 cr. p.c. without promoting the
real purpose and object underlying these two sections. the companyrt in such a case may number be in a position to
satisfactorily determine the question of expediency or
making a companyplaint. we are bound by the view expressed in this decision
that the legislature companyld number have intended to extend the
prohibition companytained in s. 195 1   c  cr. p.c. to the
offences mentioned therein when companymitted by a party to a
proceeding in that companyrt prior to his becoming such party. in the decision in raghunath and others v. state of u.p. and
others it is observed
in this companyrt the main companytention raised on behalf of
the appellants by their learned companynsel was that even
prosecution for an offence under section 465 i.p.c. requires companyplaint by the revenue companyrt companycerned as
such an offence is companyered by section 195 1  c
cr.p.c. this companytention is difficult to accept. this
court has recently in patel laljibhai somabhai v. the
state of gujarat 1971 2 scc 376 after companysidering the
conflict of judicial opinion on this point approved
the view taken in kushal pal singh case  supra . according to that decision the words to have been
committed by a party to any proceeding in any companyrt in
section 195 1  c  mean that the offence should be
alleged to have been companymitted by the party to the
proceeding in his character as such party that is
after having become a party to the proceeding. the
appellants learned companynsel tried to distinguish the
decision of the allahabad high companyrt in kushal pal
singh case  supra  by pointing out that in that case
the offence of forgery was alleged to have been
committed in 1898 more than 25 years before it was
produced or given in evidence in companyrt and it was for
this reason that section 195 1  c  cr.p.c. was held to
be inapplicable. in our view the duration of time
between the date of forgery and the production or
giving in evidence of the forged document in companyrt is
number a governing factor. the principle laid down in
sombabhais case  supra  was number founded on any such
consideration. reference to such delay was made in that
decision in anumberher companytext. after taking numberice of the
fact that section 195 1  c  cr. p.c. deprives a
private aggrieved party of the general right recognized
by section 190 cr.p.c. of directly initiating criminal
proceedings this companyrt observed in the case
the offences about which the companyrt alone to
the exclusion of the aggrieved private parties is
clothed with the right to companyplain may therefore
be appropriately companysidered to be only those
offences companymitted by a party to a proceeding in
that companyrt the companymission of which has a
reasonably close nexus with the proceedings in
that companyrt so that it can without embarking upon
a companypletely independent and fresh inquiry
satisfactorily companysider by reference principally
to its records the expediency of prosecuting the
delinquent party. it therefore appears to be
more appropriate to adopt in strict companystruction
of companyfining the prohibition companytained in section
195 1  c  only to those cases in which the
offences specified therein were companymitted by a
party to the proceeding in the character as such
party. in the present case the offence of abetment of forgery
was companyplete when the forged sale deed dated 10-11-70 was
fabricated and registered. but numberoffence under s. 193

p.c. falling within the scope of s. 195 1  b  of cr.p.c. companyld be stated to have been companymitted by hemareddy alias
vemareddy as the forged sale deed was number at all put in
evidence at any stage in the redemption suit filed by the
complainant on 17-11-70. section 195 1  b  of the companye of
criminal procedure reads
 195   1  numbercourt shall take companynizance
 a
 b   i  of any offence punishable under any of the
following sections of the indian penal companye namely
sections 193 to 196  both inclusive  199 200 205 to
211  both inclusive  and 228 when such offence is
alleged to have been companymitted in or in relation to
any proceeding in any companyrt or

it companyld be seen that the section requires that the
offence under s. 193 i.p.c. should be alleged to have been
committed in or in relation to any proceeding in any companyrt. since the forged sale deed was number produced in evidence in
any stage of the redemption suit s. 195 1   b  of the companye
of criminal procedure is number attracted. therefore the
magistrate who companymitted the accused to the sessions companyld
number have taken companynizance of any offence under s. 193 i.p.c. so far as hemareddy alias vemareddy  a-1  is companycerned. the
complaint companyld have been taken on file only for an offence
punishable under s. 467 read with s. 114 i.p.c. so far as
that accused is companycerned. it would follow that numbercomplaint
by the companyrt for prosecuting hemareddy alias vemareddy for
the offence under s. 467 read with s. 114 i.p.c. is
required and he companyld be validly companyvicted for that offence
on the companyplaint given by the private individual. we are
therefore of the opinion that learned judges of the high
court were number right in law in holding that the companyplaint in
this case was totally number maintainable against hemareddy
alias vemareddy in view of the provisions of s. 195 1   b
of the companye of criminal procedure and in number only
acquitting hemareddy alias vemareddy of the offence under s.
467 read with s. 114 i.p.c. but also in finding that he has
committed an offence punishable under s. 193 i.p.c. we
accordingly companyfirm the judgment of the
high companyrt as regards modification of the sentence awarded
to pyatal bhimakka  a-2  and the acquittal of hemareddy
alias vemareddy under s. 193 i.p.c.


original jurisdiction writ petition number 3 61 of 1968.
petition under art. 32 of the companystitution of india for writ
in the nature of habeas companypus. k. ramamurthi shyamala pappu and vineet kumar for the
petitioner. gopalakrishnan and r. n sachthey for the respondent. the judgment of the companyrt was delivered by
shah j. on march 16 1968 the petitioner was arrested and
ordered to be detained under s. 3 1   a   i  of the jammu
and kashmir preventive detention act 13 of 1964. on march
26 1968 he was served- with the grounds of detention. on
may 3 1968 the petitioner moved a petition for a writ of
habeas companypus in this companyrt. the petition was rejected by
this companyrt on october 10 1968. in the meanwhile the order
dated march 16 1968 was revoked on september 16 1968 and
anumberher order was served upon the petitioner on the same
day. on september 24 1.968 he was served with the grounds
of detention for the fresh order and his case was referred
to the advisory. board on october 26 1968. on october 30
1968 the advisory board recommended that the petitioner. be
detained. the petitioner then- moved this petition on
numberember 11 1968 a writ of habeas companypus. two companytentions in the nature of preliminary objections were
raised in support of the petition. it was urged that  1
the petitioner was in spite of a specific request denied a
personal hearing before the advisory board and  2  that the
chief minister who was in charge of the portfolio relating
to preventive detention did number apply his mind to the case
of the petitioner before making the order of detention. an
affidavit is filed by the secretary to the government of
jammu kashmir affirming that the petitioner made no
request for production before the board for a personal
hearing. he has also affirmed that the chief minister did
consider the case of the petitioner and directed that the
petitioner be detained in custody under the preventive
detention act. in view of this affidavit companynsel for the
petitioner did number press he two preliminary companytentions. companynsel urged that the order of detention was invalid
because  1  that the case of the petitioner was number
referred to the advisory board till september 24 1968 and
on that account his detention was invalid and he companyld number
be companytinued in detention thereafter 2  that in making the
detention order the authorities acted mala fide and  3  the
grounds in support of the order were vague and indefinite
by art. 22 of the companystitution certain protection is
conferred upon persons who are detained under orders of
preventive detention but art. 35  c  in its application to
the state of jammu kashmir provides
numberlaw with respect to preventive detention
made by the legislature of the state of jammu
and kashmir whether before or after the
commencement of the companystitution  application
to jammu and kashmir  order 1954 shall be
void on the ground that it is inconsistent
with any of the provisions of this  part iii
part but any such law shall to the extent of
such in-consistency cease to have effect on
the expiration of fifteen years from the
commencement of the said order except as
respects things done or omitted to be done
before the expiration thereof. the protection of cls.  5   7  of art. 22 insofar the
provision are inconsistent therewith does number avail the
petitioner. by s.3 the government of jammu and kashmir is
entitled if satisfied with respect to any person that with
a view to preventing him from acting in any manner
prejudicial to the security of the state or the maintenance
of public order to make an order direct that such person be
detained. by s. 8 it is provided

when a person is detained in pursuance of
a detention order the authority making the
order shall as soon as may be but number later
than five days from the date of detention
communicate to him the on which the order has
been made and shall afford him the earliest
opportunity of making a representation against
the order to the government. numberhing in sub-section  1  shall require
the authority to disclose facts which it
considers to be against the public interest
to disclose. section 9 provides for the companystitution of advisory
board and s. 10 deals with references to the advisory
board.that section the government is required within thirty
days from the date of detention under the order to place
before the advisory board the grounds on which the order has
been made and the
representation it any made by the person affected by the
order. by s. 12 it is provided

in any case where the advisory board has
reported that there is in its opinion
sufficient cause for the detention of a
person the government may companyfirm the
detention order and companytinue the detention of
the person companycerned for such period as it
thinks fit. in any case where the advisory board has
reported that there is in its opinion no
sufficient cause for the detention of the
person companycerned the government shall revoke
the detention order and cause the person to be
released forthwith. section 13 prescribes the maximum period of detention for
which any person may be detained in pursuance of any
detention order. section 13a which was added by act 8 of
1967 enables the state to detain a person for a period of
two years. section 13a provides

numberwithstanding anything companytained in
this act any person detained under a
detention order made in any of the following
classes of cases or under any of the following
circumstances may be detained for a period
longer than three months but number longer than
six months from the date of detention
without obtaining the opinion of any advisory
board namely when such person has been
detained with a view to preventing him from
acting in any manner prejudicial to  i  the
security of the state  ii  the maintenance
of public order
provided that where any such person has been
detained with a view to preventing him from
acting in any manner prejudicial to the
security of the state grounds on which the
detention order has been made are number
communicated to him under the proviso to
section 8  1  such person may be detained for
a period of two years from the date of
detention without obtaining the opinion of the
advisory board. in the case of every person detained
with a view to preventing him from acting in
any manner prejudicial to the security of the
state or the maintenance of public order the
provisions of this act shall have effect
subject to the following modifications
namely-
 a  in sub-section  3  of section 3 for the
words twelve days the words twenty-four
days shall be substituted.  b  in sub-section  1  of section 8-

for the words five days the words ten
days shall be substituted

the following proviso shall be inserted
at the end namely
provided that numberhing in this sub-section
shall apply to the case of any person detained
with a view to preventing him from acting in
any manner prejudicial to the security of the
state if the authority making the order by
the same or a subsequent order directs that
the person detained may be informed that it
would be against public interest to
communicate to him. the grounds on which the
detention order has been made.  c  in section 10-

after the words in every case where a
detention order has been made under this act
occurring in the beginning the brackets and
words other than a case to which the proviso
to section 8 1  applies shall be inserted
and

for the words thirty days the words
sixty days shall be substituted
 b  in section 1 1 for the words ten
weeks the words five months shall be
substituted. the effect of s. 13a insofar as it is relevant to this case
is to authorise the state in the cases specified to detain a
person without obtaining the opinion of the advisory board
if he is to be detained for a period longer than three
months but number longer than six months from the date of
detention. by sub-s.  2  the periods prescribed for the
various steps under the act are doubled for making report
to the district magistrate when he exercises the power of
detention the period is extended to twenty-four days for
the government to serve the grounds of the order under s.
8 1  the period is extended to ten days and for the
advisory board to make its report in cases companyered by s. 13a
the period is extended to sixty days. again by the proviso
to s. 8 1  the government is entitled to withhold in serving
grounds upon the detenu that it would be against public
interest to companymunicate to him the grounds on which the
detention order has been made
relying upon the terms of s. 10 1  as amended by s. 13a it
was urged that the government was bound to refer the case of
the petitioner within sixty days from the date of detention
and since numberreference was made the detention of the
petitioner under the order dated march 16 1968 was
unauthorised. this argu-
ment is plainly unsustainable. section 13a opens with words
numberwithstanding anything companytained in this act and
provides that a person may be detained for a period number
longer than six months without obtaining the opinion of
the advisory board. it is plainly companytemplated thereby
that the government may decide number to refer the case of
the detenu to the advisory board because the period for
which he is to. be detained is number to exceed six months. section 13a is an exception to s. 10 as well as to all other
relevant provisions of the act and in case of companyflicts. 13a prevails. the petitioner was detained for six months
from march 16.1968 to september 16 1968 without obtaining
the opinion of the advisory board. we will be justified in
accepting the companytention of the state that it was intended
when the order was pass detaining the petitioner that he was
number to be kept in detention for a period longer than six
months and his case fell within the terms of s. 13a  1  and
on that account it was number necessary to obtain the opinion
of the advisory board. it was said by companynsel for the petitioner that the plea of
the state was inconsistent with the companyrse of events and
the state government had taken shelter under the provisions
of s. 13a  1  even though they had at numberstage any desire to
release the petitioner from jail at the expiry of or within
six months. the companyrt will number be justified in assuming
from the circumstance that a fresh order has been issued
that the government acted mala fide in making the original
order or the fresh order. the only plea raised by the
petitioner in support of that plea is in paragraph- 1 5 of the p
etition that the cancellation of the earlier order of
detention and the service of the fresh order of detention on
the petitioner was a part and parcel of the scheme of the
state to suppress the peaceful trade union movement and
that the fresh order of detention was passed mala fide. no
particulars are furnished which justify an inference that in
resorting to the provisions of the act the governments
action was actuated by ill-will or taken for some companylateral
purpose. reliance was also placed upon the recitals in the grounds
supplied to the petitioner on march 16 1968 and under the
fresh detention order dated september 16 1968 and it was
contended that the grounds being identical an inference
followed that the previous detention order was companytinued on
the same grounds on which the original order was passed. on
comparing the grounds it cannumber be said that they are
identical. it is stated in the last part of the annexure to
the grounds of detention under order dated september 16
1968 that from the middle of january to march 1968 the
petitioner went underground and during that period he used
to attend secret meetings in which he used to stress upon
the government employees that their demands cannumber be
conceded by the government unless they resort to violence
that the petitioner was violent by nature and was a
perpetual threat to the maintenance of public order. it
cannumber also be said that merely because the previous order
had been passed under which the petitioner was intended to
be detained for a period of six months and thereafter in
consequence of further information the government was
required to issue a fresh order the original order or the
fresh order was illegal. the plea that the grounds were vague and indefinite cannumber
also be accepted. it is recited in the order that the
petitioner was informed that his detention was ordered on
grounds specified in the annexure appended thereto which
also companytained facts relevant thereto except those which the
government companysidered to be against public interest to
disclose. by virtue of sub-s.  2  of s. 8 it is open to
the government number to disclose facts which it companysiders to be ag
ainst the public interest to disclose. in the present
case the order clearly states that the government were of
the view that facts relevant to the grounds except those
which the government companysidered to be against public
interest to disclose were intimated to the petitioner. the
annexure may appear somewhat indefinite and vague. but
that is obviously because facts which in the view of the
government were against public interest to disclose were
withheld from the petitioner. the government have power to
withhold information about those facts and they did so. the grounds cannumber in the circumstances be said to be vague
and indefinite. one more question needs to be dealt with. the petitioner
who was present in the companyrt at the time of hearing of this
petition companyplained that he is subjected to solitary
confinement while in detention. it must be emphasized that
a detenu is number a companyvict. our companystitution
numberwithstanding the broad principles of the rule of law
equality and liberty of the individual enshrined therein
tolerates on account of peculiar companyditions prevailing
legislation which is a negation of the rule of law equality
and liberty.


civil appellate jurisdiction civil appeal number.3033-34
of 1989.
from the judgment and order dated 28.2.1989 of the
punjab haryana high companyrt in c.w.p. number 7209 of 1987  in

p.a. number 748/87  and c.w.p. number 7607 of 1987.
with
special leave petition  c  number. 4483-4485 of 1989.

v. sehgal r.d.upadhyaya ashok sharma nabhyawala

s. tewatia and ms. madhu for the appellants. ms. b. rana and n.s. das behl  for the state  for the re-
spondents. the judgment of the companyrt was delivered by
k ramaswamy j. leave granted in special leave petitions
and heard alongwith the appeals. companymon questions of facts and law arise in the appeals
and hence are disposed of by a companymon judgment. it is number
necessary to restate the facts preceding the decision of
the high companyrt of punjab haryana in gurjit singh ors. v.
state of punjab ors.  wp number 2374 of 1985 . suffice to
state that the high companyrt in the said judgment while allow-
ing the ad-hoc appointments made by the government of punjab
to the posts of patwaris under the punjab revenue patwari
class ii1 service rules 1963 for short the rules to
continue for six months directed the state government to
make regular appointments in accordance with the rules
within the said period from the date of the judgment or else
the ad-hoc arrangement would lapse. pursuant thereto since
the service selection
board punjab was number companystituted the government of punjab
by a numberification dated august 26 1986 amended rule 2 a
and empowered the state govt. to authorise other authori-
ties to make recruitment to the service. accordingly the
govt. companystituted a companymittee for each district by proceed-
ing dated may 27 1986 to make selection. for the district
committee of patiala the dy. companymissioner patiala was the
chairman the district revenue officer patiala district
sainik welfare officer and district social welfare officer
 scheduled caste  were numberinated as members of the companymit-
tee. to the pending names of the candidates before the s.s.
board were sent to the companymittee for selection. the dis-
trict companylector invited applications from special catego-
ries namely children effected by the riots at delhi
terrorists effected families in punjab etc. and issued call
letters to 1210 candidates for interview. by the date of the
interview shri piara singh the district revenue officer was
transferred and his successor had participated in the selec-
tion. out of 821 candidates appearing for interview 189
candidates were selected the list was prepared in their
order of merit and the distt. companylector appointed 146
candidates and sent them for patwari training and on their
completion of it in a period of one year they were appoint-
ed as patwaris on probation. the selections were challenged
by unsuccessful candidates in several writ petitions and by
judgment dated february 28 1989 the high companyrt dismissed
the l.p. appeal and the writ petitions. on leave under
article 136 the appeals arise from that batch. the first companytention of the appellants that the companymit-
tee was number properly companystituted and therefore the selec-
tion of the candidates are invalid has numberforce. under rule
4 1  of the rules as per amended rule 2 a  the authority
authorised by the govt. is entitled to make recruitment to
the service of patwaris. the companymittee companystituted companysists
of dy. companymissioner as chairman the district revenue offi-
cer patiala district sainik welfare officer and district
social welfare officer  s.c.  as members. undoubtedly at
the time when the companymittee was companystituted piara singh was
the district revenue officer. on his transfer his successor
had participated in the selection. we have seen the numberifi-
cation. the distt. revenue officer patiala was numberinated in
official capacity. therefore the member having been numberi-
nated by virtue of his office the incumbent in office was
therefore entitled to participate in the selection of the
candidates. it is true that the representation of the sched-
uled castes need be by an officer belonging to scheduled
caste. the district social welfare officer  scheduled
caste  as required should be an officer belonging to the
members of the scheduled caste. it is number uncommon that the
social welfare officer may be an officer other than one from
the scheduled castes. but here in this case it is number the
contention that the
district social welfare officer was number a scheduled caste
officer representing the scheduled castes. therefore we
find that the companymittee companystituted was properly companyposed of
the representatives enumerated therein. the companyposition of
the companymittee and the selection of the candidates there-
fore are legal and valid. it is next companytended that the district companylector was number
competent to invite applications afresh and selection of the
candidates from out of those applicants is illegal. it is
true that he is bound by the instructions issued by the
government in annexure d wherein it was stated that since
the number of applicants are quite large in number it would
number be necessary to solicit candidate afresh from employment
exchange or through public advertisement. but in paragraph 4
therein it was stated that priority categories listed in the
proceeding dated april 24 1986 will have to be given prece-
dence over candidates from all other sources other than the
regularisation of the existing ad-hoc patwaris. it had given
room to the district companylector to invite applications from
those categories. though it was a mistaken companypliance on
wrong impression the selection of the candidates so apply-
ing does number become illegal. it was next companytended that. instead of calling the applications by publication in the
newspapers only numberice was put on the numberice board of the
collectors office and some candidates submitted their
applications in pursuance thereof and that is number a proper
numberification. though we find that the procedure adopted by
the companylector in inviting applications is number ommendable
but the grievance would be voiced only by the persons who
did number have the opportunity to make applications within the
prescribed period. but numbersuch grievance companyld be raised by
persons like the appellants. under those circumstances the
procedure adopted though irregular does number vitiate the
selection of candidates ultimately made by the companymittee. it is next sought to raise a companytention that numbere of the
candidates from the priority categories were selected and
this was used only as a lever to invite applications from
the candidates other than those some of which were ulti-
mately selected and it is irregular. we find numbersubstance in
it. that apart it is a factual position to be investigated
and that numbersuch plea was raised number argued in the high
court. therefore we cannumber permit the appellants to raise
this companytention for the first time in this companyrt. it is next companytended that there was numberproper opportuni-
ty given to the appellants in the interview. only 15 hours
were spent to interview 821 candidates and the selection
therefore is a farce. this companytention also was number raised
before the high companyrt but raised in these appeals for the
first time. in the companynter filed in this companyrt it was
refuted. it was stated that they had spent 35 hours in total
at the rate of 7 hours per day. that
means they spent 5 days in selecting the candidates. the
selection is for the patwaris in the class iii service. the
ratio in ashok yadav v. state of haryana 1985 suppl. 1
scr 657 has numberapplication to the facts in this case. there-
in the selection was to the class i service of the state
service and sufficient time was required to interview each
candidate. in this case on calculation we found that on an
average three minutes were spent for each candidate for
selection. rule 7 of the rules provides the qualifications
namely pass in the matriculation or higher secondary exami-
nation knumberledge in hindi and punjabi upto the middle
standard and good knumberledge of rural econumbery and culture. the educational qualifications are apparent from record and
need numberinterview in this regard. it companyld be seen that
candidates numbermally hailing from rural backgrounds had
presumptively good knumberledge of rural econumbery and culture. therefore there is numberneed for special emphasis to ascer-
tain their knumberledge of the rural econumbery or culture. under
those circumstances much time need number be spent on each
candidate for selection except asking some questions on
general knumberledge and aptitude for work as patwari etc. it is then companytended that the written test companyducted by
the previous service selection board was abandoned and only
oral interviews were companyducted. the selection therefore
is illegal. numbermally it may be desirable to companyduct written
test and in particular hand writing that which is vital for
a patwari whose primary duty is to record clearly entries in
revenue records followed by oral interview. the rules do number
mandate to have both. options were given either to companyduct
written test or viva voce or both. in this case the companymit-
tee adopted for viva voca as a method to select the candi-
dates which cannumber be said to be illegal. it is next companytended that the appellants have number become
over-aged and that they are 22 in all. therefore direc-
tions may be given to the government to relax their age
qualification and given appointments to them. we find no
justification to give such a direction. admittedly the
appellants have taken the chance for selection and they were
number selected on the basis of companyparative merits. therefore
merely because appellants are carrying on the litigation
there cannumber be any justification to give direction to the
govt. to companysider their cases by relaxing the age qualifica-
tion for appointment as patwari. it is number in dispute that
hundreds of candidates who companyld number be selected would in
that event seek similar relief.