J. M. L. Sinha, J.@mdashThis is an application under Section 482 of the Code of Criminal Procedure of 1973 praying that the entire proceedings in case No. 1212 of 1968 (State of U. P. v. Mohd. Azhar Ullah Khan and others) pending in the court of the Chief Judicial Magistrate, Moradabad, be quashed.
2. The facts of the case, shorn of unnecssary details, are as follows :
Mohammad Azhar Ullah Khan, petitioner no. 1, claims himself to be the owner of House No. 49/D10. KathDarwaza, Moradabad. On 20th of September, 1952, a notice was issued by the Assistant Custodian, Moradabad, treating that house to be evacuee property and calling upon the petitioner to appear before him and to show cause against it. By an order dated 12th August, 1955. the house was declared to be evacuee property. Petitioner No. 1 then filed an appeal against the order of the Assistant Custodian dated 12th August, 1955, which was dismissed by the Deputy Custodian General on 20th of June, 1958. Another appeal was then filed against the same order by Smt. Asadi Begum, sister of petitioner no. 1 and it is suggested on behalf of the opposite party that the said appeal was also filed at the instance of petitioner no. 1. That appeal too was dismissed by the Deputy Custodian General on 1071958. A third appeal was then got filed against the same order viz. the order dated 12th August, 1955, in the name of Najib Ullah Khan. This appeal was allowed by the Deputy Custodian vide his order dated 14th January, 1963 Some further litigation took place in regard to the same property, but it is not necessary for purposes of this case to make a reference to that litigation at any length. On or about 10th of May, 1968 Sri A. N Bhargava, the District Relief and Rehabilitation Officer, Moradabad, acting for District Magistrate, Moradabad, sent a letter to the Superintendent of Police, inter alia, alleging that the memo of appeal filed in the name of Najib Ullah Khan was a forged and fictitious document that the said Najib Ullah Khan was not even present in India at the time of filing thereof that petitioner no. 1, in collusion with one Sri Siddiqui, an Advocate, withdrew the amount of rent which was deposited in the office of Assitant Custodian, Evacuee Property by impersonating as Najib Ullah Khan''s attorney and that petitioner no. 1 had been wrongfully obtaining rent of the house which was evacuee property and in which the share of petitioner no. 1 was very nominal. On this letter a case under Sections 468, 419 and 420 I.P.C. was registered. Formal investigation then followed and a chargesheet was ultimatey submitted by the police for the prosecution of the petitioners for offence u/Secs. 120B, 467, 471, 468, 418, 419 and 420 I.P.C. A copy of that chargesheet is Annexure 12 of the petition under Section 482, Cr.P.C, The case is now pending in the court of Chief Judicial Magistrate, Moradabad. The prayer of the petitioners is that the said case and the entire proceedings thereunder be quashed.
3. It is well settled that for purposes of Section 482, Cr.P.C. (which corresponds to Section 561A of the old Code) the court should proceed on the assumption that the allegations contained in complaint or chargesheet arc correct. The court cannot enter into an investigation of the fact as to whether the allegations contained in the complaint or the chargesheet are correct or not, for, that would amount to usurpingt he role of the trial court. If, however, the court comes to the conclusion that, even if the allegations contained in the complaint be taken to be true, they fail to constitute any offence, jurisdiction can be exercised under Section 482 Cr.P.C. to quash the proceeding Jurisdiction for this purpose can also be exercised. if it transpires that any action which is necessarily to be taken before launching prosecution or taking cognizance of a case by the court has not been taken. The present case has to be examined keeping that legal position in mind.
4. As already stated earlier, a copy of the chargesheet by the police has been annexed with the petition as Annexure 12. It states that petitioner no. 1 himself filed an appeal against the order dated 12th August, 1955 declaring house no. 49/D10 to be an evacuee property. It is further suggested that when that appeal was dismissed, petitioner no. 1 got another appeal filed against the same order through his sister which too ended in dismissal. The allegation contained in the chargesheet thereafter is that the present petitioner entered into a conspiracy with his daughter. Smt. Hajra Sultana and two others to prepare or got prepared a Vakalatnama and a memo of appeal in the name of Najib Ullah Khan, who had migrated to Pakistan, to be able to assail the order of the Assistant Custodian dated 12th of August, 1955, in the name of Najib Ullah Khan. It is also contained in the chargesheet that the signatures of Najib Ullah Khan on the Vakalatnama were forged and, according to the report of the handwriting expert, it was petitioner no. 2 who did that particular act and both the petitioners thereby committed offences, punishable under Sections 120B, 465 and 471, 1PC. It is further the prosecution case that by forging the Vakal itnama and the memo of appeal in the name of Najib Ullah Khan and by further representing that petitioner no. 1 was an attorney of Najib Ullah Khan, the petitioner no. 1 also committed an offence under Section 120B read with Sections 419 and 420, IPC, inasmuch as by doing that act, the petitioners and their associates induced the Deputy Custodian General to accept the memorandum of appeal and release the house in dispute and further, accepting petitioner no. 1 to be the attorney of Najib Ullah Khan, permitted withdrawal of the deposits of rent in the office of the Assistant Custodian.
5. While learned counsel for the petitioners contended before me that the necessary ingredients of cheating as mentioned in Section 415, I.P.C. are not satisfied by the allegations contained in the chargesheet, it could not be seriously disputed that, if the allegations contained in the chargesheet are taken to be correct, they can constitute offences under Sections 120B and 465, I.P.C. Since the proceedings cannot be quashed, even if one offence is made out on the allegations contained in the chargesheet, it is not necessary for me to enter into the controversy whether or not the allegations contained in the chargesheet also constitute the offence of cheating.
6. Learned counsel for the petitioners, however, urged that the alleged forgery having been committed in respect of the documents produced in the court of the Custodian General, cognizance of the said offence could not be taken except on the complaint made by the Custodian General. Reliance for this argument was placed on Section 195 of the Code of Criminal Procedure.
7. It is true that, according to Section 195 of the Code of Criminal Procedure, no court can take cognizance of any offence described in Section 463 or punishable under Section 471, I.P.C when such offence is alleged to have been committed in respect of a document produced in a proceeding in any court. The question however, is what is the meaning of the word ''Court''. Sub section (3) of Section 195 states that the term ''Court'' as used in Section 195 (1) (b) means a civil, revenue or criminal court and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a court for purposes of Section 195.'' There can be no doubt about the fact that the Custodian General, Deputy Custodian General or Assistant Custodian do not constitute either a civil or revenue or a criminal court. They may be Tribunals. But unless the Administration of Evacuee Property Act, 1950, declares the office of the Custodian General, Deputy Custodian General or Assistant Custodian General to be a court for purposes of Section 195 of the Code of Criminal Procedure, the provision contained in that section cannot be attracted. I have looked into the Administration of Evacuee Property Act. The only section therein relevant in this connection is Section 45, which reads as follows :
"45. Powers of the Custodian while holding inquiry : For the purposes of holding any inquiry under this Act the Custodian shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) when trying a suit, in respect of the following matters, namely :
(a) enforcing the attendance of any person and examining him on oath ;
(b) compelling the discovery and production of documents ;
(c) any prescribed matter
and the enquiry by the Custodian shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (Act XLV of 1860) and the Custodian shall be deemed to be a court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure."
From the above it would appear that, while Section 45 of the Administration of Evacuee Property Act states that the Custodian shall be deemed to be a court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure it does not state that it would also be deemed to be a court within the meaning of Section 195 of the Code of Criminal Procedure (of 1973).
8. Since neither the Custodian General, nor any other authority created under the Administration of Evacuee Property Act constitutes a court within the meaning of Section 195 of the Code of Criminal Procedure, it cannot be successfully argued that cognizance of the offence under Sections 465, I.P.C. and 120B read with Section 465, I.P.C. could not be taken except on the complaint by the Custodian General.
9. In the above view of the matter, I find that this is not a fit case for the exercise of extraordinary jurisdiction under Section 482, Cr.P.C.
10. The application accordingly fails and is thereby dismissed.
