VIJAY BALASO BHOGAMversusPRASHANT RAJARAM DHANAVADE AND ORS

                                                                     judg. 491-17 j (1).doc

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIRCUIT BENCH AT KOLHAPUR
                 CRIMINAL APPELLATE JURISDICTION

          CRIMINAL REVISION APPLICATION NO. 491 OF 2017

Vijay Balaso Bhogam
Head Master of Susankar High School
Bhosalewadi,
Age:43 years, occup. Service R/o at Kadamwadi,
Bhosalewadi, District Kolhapur                                          Applicant.

Versus

1.       Prashant Rajaram Dhanavade
         Age: Adult, Occup.Rickshaw Driver
2.       Sunita Prashant Dhanavade
         Age: Adult, Occup.Household,
         Both residing at 192 E Ward
         Sadar Bazar, District Kolhapur
3.       State of Maharashtra                                       Non-applicants.

------------------------------------------------------------------------------------------
Mr. Chetan G.Patil a/w Mr. Prathamesh P. Magadum, Counsel for the
Applicant.
Ms.Vanshika Joshiee a/w Mr. Indrajeet Joshiee, Counsel for the non-
applicants Nos.1 and 2.
Mr S.V. Gavand, APP for the Respondent No. 3 - State.
------------------------------------------------------------------------------------------
        CORAM: MRS. VRUSHALI V. JOSHI, J.
        Judgment reserved on: 19.06.2026
        Judgment delivered on: 10.07.2026




Kavita                                                                                 1/11
                                                     judg. 491-17 j (1).doc

JUDGMENT:


1)         Being aggrieved by the Judgment and Order dated

17.07.2017 passed by the learned Additional Sessions Judge,

Kolhapur, in Criminal Revision Application No. 10 of 2015, whereby

the order dated 09.01.2015 passed by the Chief Judicial Magistrate,

Kolhapur, issuing process against Non-Applicant Nos.1 and 2 for the

offences punishable under Sections 465, 468, and 471 read with

Section 34 of the Indian Penal Code was set aside, the applicant–

original complainant has preferred the present Criminal Revision

Application.


2)             The applicant was serving as the Head Master of

Susanskar High School, Bhoslewadi, Kolhapur. Respondent Nos. 1

and 2 were employed in the said school as a temporary clerk and a

teacher, respectively, during the academic years 1999–2000, 2000–

2001, 2001–2002, and 2002–2003. Respondent Nos. 1 and 2

contracted a love marriage. They thereafter remained absent from

duty without obtaining leave and have since then not been in the

service of the said High School. Subsequently, Respondent No. 2 filed

Appeal No. 54 of 2008 before the School Tribunal, Kolhapur. It is


Kavita                                                                 2/11
                                                      judg. 491-17 j (1).doc

alleged that Respondent Nos. 1 and 2 forged the letterhead and

rubber stamp of the High School, prepared a fabricated document,

and forged the signature of the applicant with a view to securing an

undue advantage in the said proceedings. Alleging the commission of

offences of forgery and use of forged documents, the applicant

instituted Regular Criminal Case No. 1122 of 2011 before the Chief

Judicial Magistrate, Kolhapur.


3)          After receipt of the complaint, the learned Chief Judicial

Magistrate (CJM) directed an inquiry under Section 202 of the Code

of Criminal Procedure, 1973. Pursuant thereto, the Investigating

Officer submitted a report opining that the disputed letterhead and

signature were forged. Upon considering the complaint, the

documents placed on record, and the report submitted pursuant to

the inquiry under Section 202 of the Code, the learned CJM, by an

order dated 09.01.2015, found that a prima facie case was made out

and accordingly issued process against Non-Applicant Nos. 1 and 2

for the offences punishable under Sections 465, 468, and 471 read

with Section 34 of the Indian Penal Code. Non-Applicant Nos.1 and 2

challenged the said order, before the learned Additional Sessions



Kavita                                                                  3/11
                                                        judg. 491-17 j (1).doc

Judge, Kolhapur, in Criminal Revision Application No. 10 of 2015. By

judgment and order dated 17.07.2017, the learned Additional

Sessions Judge allowed the revision application and set aside the

order issuing process. The learned counsel for the revision applicant

submitted that the impugned judgment and order dated 17.07.2017

passed by the learned Additional Sessions Judge, Kolhapur, is

contrary to the settled principles governing the issuance of process

and, therefore, deserves to be quashed and set aside.


4)         It is argued that the learned Chief Judicial Magistrate

(CJM) issued process after considering the report submitted by the

police pursuant to the inquiry under Section 202 of the Code of

Criminal Procedure, 1973, wherein it was specifically opined that the

disputed letterhead and the signature appearing thereon were

forged. The learned counsel for the revision applicant further

submitted that the learned Additional Sessions Judge exceeded the

limited scope of revisional jurisdiction by undertaking a detailed

examination of the merits of the allegations and the sufficiency of the

evidence at the pre-trial stage, which was impermissible in law.


5)         It was contended that, at the stage of issuance of process,


Kavita                                                                    4/11
                                                      judg. 491-17 j (1).doc

the Court is only required to ascertain whether the complaint and the

material placed on record disclose a prima facie commission of an

offence and not to adjudicate upon the truthfulness or otherwise of

the allegations. It was submitted that the complainant had

specifically alleged the commission of offences punishable under

Sections 465, 468, and 471 of the Indian Penal Code, and that the

order dated 09.01.2015 issuing process was principally for the

offence punishable under Section 468 of the Indian Penal Code.

Consequently, the embargo contained in Section 195 of the Code of

Criminal Procedure, 1973, was not attracted in the facts and

circumstances of the present case. It was further submitted that the

impugned judgment itself records inconsistent findings since while

holding that Section 195 bars the prosecution. It simultaneously

observes that there is no finding that the disputed document had

been produced before the School Tribunal in Appeal No. 54 of 2008.


6)         Learned counsel submitted that the complaint clearly

discloses that Respondent Nos. 1 and 2, acting in furtherance of their

common intention, prepared a forged letterhead and rubber stamp of

Susanskar High School and fabricated a document by forging the



Kavita                                                                  5/11
                                                       judg. 491-17 j (1).doc

applicant's signature with a view to securing an undue advantage in

the proceedings before the School Tribunal. It was, therefore,

contended that the learned Magistrate had rightly exercised

jurisdiction in issuing process by order dated 09.01.2015, and that

the learned Additional Sessions Judge committed a jurisdictional

error in setting aside the said order by the impugned judgment dated

17.07.2017, despite there being no perversity, illegality, or material

irregularity in the order passed by the learned Magistrate.


7)          The learned counsel for Non-Applicant Nos. 1 and 2

supported the impugned judgment and order passed by the learned

Additional Sessions Judge and prayed for dismissal of the present

Criminal Revision Application.


8)          Heard both the counsel.


9)          Upon considering the judgment and order passed by the

learned Additional Sessions Judge, it is evident that the revision

application was allowed solely on the ground that the bar contained

in Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973,

was attracted. The question that, therefore, arises for consideration is



Kavita                                                                   6/11
                                                      judg. 491-17 j (1).doc

whether the learned Additional Sessions Judge was justified in

invoking the bar under Section 195(1)(b)(ii) of the Code to set aside

the order dated 09.01.2015 issuing process, particularly when the

alleged forgery was committed prior to the production of the

disputed document before the School Tribunal.


10)      Section 195(1)(b)(ii) of the Code of Criminal Procedure,

1973, bars a criminal court from taking cognizance of any offence

described in Section 463 or punishable under Sections 471, 475, and

476 of the Indian Penal Code, which is reproduced as under:-


           “195. Prosecution for contempt of lawful authority of
           public servants, for offences against public justice and for
           offences relating to documents given in evidence –

           (1) No Court shall take cognizance—

           (a) …………

           (b) (i) …………

           (ii) of any offence described in Section 463, or
           punishable under Section 471, Section 475 or Section
           476, of the said Code, when such offence is alleged to
           have been committed in respect of a document produced
           or given in evidence in a proceeding in any Court, or

11)         Except upon a complaint in writing made by the Court

concerned, no prosecution shall lie for such offences where they are


Kavita                                                                  7/11
                                                       judg. 491-17 j (1).doc

alleged to have been committed in respect of a document produced

or given in evidence in proceedings before that Court. This provision

constitutes an exception to the general rule that any person

aggrieved by the commission of an offence may institute criminal

proceedings. Being an exception that restricts the ordinary right to

prosecute, the provision must be construed strictly.


12)        In the present case, the complainant came to know about

the alleged forgery only when the disputed documents were

produced before the School Tribunal. Until then, the complainant

had no knowledge of the forgery and, therefore, the question of

delay does not arise.


13)          The legal position on this issue stands authoritatively

settled by the Constitution Bench of the Hon'ble Supreme Court in

Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another,

(2005) 4 SCC 370, wherein it was held that Section 195(1)(b)(ii) of

the Code of Criminal Procedure, 1973, applies only where the

offence relating to a document is committed after the document has

been produced or given in evidence before a Court, that is, while it is

custodia legis. Where the act of forgery is complete prior to the


Kavita                                                                   8/11
                                                      judg. 491-17 j (1).doc

production of the document before a judicial forum, a private

complaint by the aggrieved person is maintainable, and the

Magistrate is competent to take cognisance of the offence. The

Constitution Bench also approved the earlier decision in Sachida

Nand Singh v. State of Bihar, (1998) 2 SCC 493.


14)        The complainant has also placed reliance on the

judgment of this Court in Vishwambhar Ghanshyam Ban v. State of

Maharashtra and Others, 2007 ALL MR (Cri.) 197, wherein this

Court, while relying upon the Constitution Bench decision in Iqbal

Singh Marwah and Another v. Meenakshi Marwah and Another

(supra), reiterated that the bar contained in Section 195(1)(b)(ii) of

the Code of Criminal Procedure, 1973, is attracted only where the

alleged offence of forgery is committed after the document has been

produced or given in evidence before a Court.


15)        In the present case, the specific allegation of the

applicant is that Non-Applicant Nos. 1 and 2 forged the school

letterhead, fabricated the rubber stamp, and forged the applicant's

signature before using the said document in Appeal No. 54 of 2008

before the School Tribunal. Thereafter, the applicant instituted


Kavita                                                                  9/11
                                                      judg. 491-17 j (1).doc

Regular Criminal Case No.1122 of 2011. Pursuant to an inquiry

under Section 202 of the Code of Criminal Procedure, 1973, the

learned Chief Judicial Magistrate, by an order dated 09.01.2015,

issued process after recording a prima facie satisfaction that offences

punishable under Sections 465, 468, and 471 read with Section 34 of

the Indian Penal Code were made out.


16)        Prima facie, therefore, the alleged act of forgery was

complete prior to the production of the disputed document before

the School Tribunal. Applying the ratio laid down by the Constitution

Bench of the Hon'ble Supreme Court in Iqbal Singh Marwah and

Another v. Meenakshi Marwah and Another (supra), the embargo

contained in Section 195(1)(b)(ii) of the Code of Criminal Procedure

would not be attracted, and the learned Magistrate was competent to

entertain the complaint and issue process. Consequently, the

correctness of the impugned judgment and order dated 17.07.2017,

whereby the learned Additional Sessions Judge set aside the order

issuing process solely by invoking the bar under Section 195(1)(b)

(ii) of the Code, requires examination in the light of the binding law

declared by the Hon'ble Supreme Court.



Kavita                                                                 10/11
                                                          judg. 491-17 j (1).doc

17)        In view of the facts and legal position stated above, the

Revision Application is allowed. The order dated 09/01/2015 passed

by the learned Chief Judicial Magistrate in RCC No.1122 of 2011 is

confirmed, and the order dated 17/07/2017 passed by the learned

Additional Sessions Judge in Criminal Revision Application No.10 of

2015 is hereby quashed and set aside.


18)        RCC No.1122 of 2011 be restored to its original file.


19)        The Non-applicant Nos.1 and 2 are directed to appear

before   the   learned   Chief   Judicial   Magistrate,     Kolhapur        on

24/07/2026.


20)        Criminal Revision Application stands disposed of.




                                        (MRS. VRUSHALI V. JOSHI, J.)




Kavita                                                                     11/11