Bachu Behari Lal vs Emperor

The petitioner in this application seeks to have the order of the learned Sessions Judge of Saran, dated the 7th May 1919, get aside.

The learned Judge by his order directed the petitioner to be prosecuted for en offence u/s 466 of the Indian Penal Code.

The facts upon which this application is founded may be briefly stated.

A suit was instituted in the year 1915 bearing No. 21. It was a title suit between one Gokal Singh as plaintiff and Balaram Sahay as defendant.

By this suit Gokal Singh sought to enforce his right to a sale of certain property under a sale-deed executed in the year 1914.

The defence filed by Balaram Sahay to resist the suit was based upon a compromise effected in a previous mortgage suit; and by the defence in Suit No. 21 of 1915 it was pleaded that the sale-deed of 1914 bad been annulled by virtue of the compromise. The compromise so referred to in the proceedings is Exhibit 2, and the compromise bore date 21st November 1916. The compromise was filed in Court in the original mortgage suit and in effect operated as a decree in that suit.

When Gokal Singh ascertained the nature of the defence, which had been asserted by Balaram Sahay in Suit No. 21 of 1915, he immediately observed that the compromise referred to purported to annual and cancel the sale-deed. But on examination it was obvious that the compromise had been altered so as to make it appear that the sale-deed was annulled, which was never intended between the parties in the prior mortgage suit in which the compromise had been arrived at.

Accordingly Gokal Singh applied to the Subordinate Judge in Suit No. 21 of 1915 to direct the prosecution of Balaram for forgery.

The learned Subordinate Judge granted sanction and accordingly Balaram was prosecuted.

The prosecution of Balaram Sahay came before the Deputy Magistrate on the 10th March 1919 for trial, and he directed that the accused should be acquitted of the offence with which he was charged u/s 209 of the Indian Penal Code, inasmuch as there was no reliable evidence against him in respect of the charge on which he had teen tried.

From the order of acquittal pronounced in favour of Balaram made by the Deputy Magistrate, Gokal Singh applied to the Sessions Judge in appeal to reverse the order passed by the Deputy Magistrate, and in the course of this appeal at the suit of Gokal Singh against the order of the Deputy Magistrate, Mr. Monahan as Sessions Judge of the district of Saran directed that the petitioner Bachu Behari Lal should be prosecuted for an offence u/s 466, Indian Penal Code.

The learned Sessions Judge in directing the prosecution of the petitioner purported to exercise the powers vested in him u/s 476 of the Code of Criminal Procedure.

It is contended before me that the order of the learned Sessions Judge is erroneous and made without jurisdiction.

Three contentions were put forward for the purpose of impeaching the order of the 7th May passed by the learned Sessions Judge.

First, it is contended that Section 476 of the Code of Criminal Procedure incorporates within its terms all the provisions, limitations and qualifications specified in Section 195 of the Code of Criminal Procedure. That is to say, that the reference by in-corporation to Section 195 in Section 476, Criminal Procedure Code, is not merely confined to an enumeration of the sections of offence in respect of which a Court may direct a person to be prosecuted; but it also applies with regard to the qualifications as to the persons against whom proceedings may be taken. Therefore, it is contended that inasmuch as the petitioner was not a party to the Suit No. 21 of 1915 instituted by Gokal Singh that, therefore, the Court had no power u/s 476 to direct his prosecution for an offence u/s 466, Indian Penal Code.

Two authorities are cited in support of this contention, viz., the rulings reported as Jadunandan Singh v. Emperor 4 Ind. Cas. 710 : 37 C. 250 : 14 C.W.N. 380 : 10 C.L.T. 564 : 11 Cri.L.J. 37 and In Re: Kallaru Ramalingam 31 Ind. Cas. 653 : 40 M. 100 : 18 M.L.T. 488 : 2 L.W. 1135 : 16 Cri. L.J. 797. It is perfectly true that these two decisions are authorities in favour of the contention put forward ton behalf of the petitioner. Mr, Justice Mukerjee in the case reported as Jadunandan Singh v. Emperor 4 Ind. Cas. 710 : 37 C. 250 : 14 C.W.N. 380 : 10 C.L.T. 564 : 11 Cri.L.J. 37 gave an elaborate judgment, in which he enunciated the principle that in construing Section 476 a Court in exercising the powers conferred on it by that section must have regard to all the provisions and qualifications specified in Section 195 of the Code of Criminal Procedure.

If the ruling referred to was the governing authority determining the law in this Province, no doubt the petitioner would be entitled to succeed in the application which he has made before me.

However, the ruling of Mr. Justice Mukerjee reported as Jadunandan Singh v. Emperor 4 Ind. Cas. 710 : 37 C. 250 : 14 C.W.N. 380 : 10 C.L.T. 564 : 11 Cri.L.J. 37 has been dissented from in this Court. My learned brother Mr. Justice Mullick, as a member of a Division Bench of this Court, has distinctly laid down in the case reported as Abdul Sattar v. Emperor 48 lnd. Cas. 894 : (1918) Pat. 352 : 20 Cri.L.J. 94 that Section 476 merely for the sake of abbreviation incorporates Section 195 of the Criminal Procedure Code within its terms qua the enumeration of offences only specifically mentioned in that section as offences under the Indian Penal Code in respect of which the persons authorised by Section 476 of the Criminal Procedure Code may direct the prosecution of a person guilty of any such offences.

Apart from the two decisions to which I have referred reported as Jadunandan Singh v. Emperor 4 Ind. Cas. 710 : 37 C. 250 : 14 C.W.N. 380 : 10 C.L.T. 564 : 11 Cri.L.J. 37 and In Re: Kallaru Ramalingam 31 Ind. Cas. 653 : 40 M. 100 : 18 M.L.T. 488 : 2 L.W. 1135 : 16 Cri. L.J. 797, the weight of judicial authority seems to be in favour of the view of the ruling of the Division Bench of this Court. It is quite erroneous for learned Counsel on behalf of the petitioner to state or argue, as he has done before me, that Mr. Justice Mullick failed to consider the importance and value of the judgments in the two reported cases which I have mentioned. Mr. Justice Mullick was emphatically of opinion that the rulings in In Re: Kallaru Ramalingam 31 Ind. Cas. 653 : 40 M. 100 : 18 M.L.T. 488 : 2 L.W. 1135 : 16 Cri. L.J. 797 and Jadu-nandan Singh v. Emperor 4 Ind. Cas. 710 : 37 C. 250 : 14 C.W.N. 380 : 10 C.L.T. 564 : 11 Cri.L.J. 37 were not accept-able or binding as a correct interpretation of the law in this Province; and ample authority will be found in support of the view of my learned brothers in the following reported cases, viz., Rajkumar Singh v. Emperor 37 Ind. Cas. 487 : 1 P.L.J. 298 : 18 Cri.L.J. 135 : 3 P.L.W. 33, Akhil Chandra Sen v. Queen-Empress 22 C. 1004 : 11 Ind. Dec. 667, Ganga Ram v. Emperor 42 Ind. Cas. 927 : 40 A. 24 : 15 A.L.J. 817 : 19 Cri.L.J. 15, In Re: Devji 18 B. 581 : 9 Ind. Dec. 896 and In Re: Keshav Narayan Manolkar 17 Ind. Cas. 720 : 13 Cri.L.J. 848 : 14 Bom L.R. 968.

Therefore, I hold that the first contention put forward by the petitioner is unmaintainable and that the learned Judge was entitled to direct his prosecution for forgery u/s 476 irrespective of the fact that he was not a party to the proceedings in Suit No. 21 of 1915 instituted by Gokal Singh against Balaram.

The second argument addressed to me by Mr. Varma is clear. His argument was that the learned Judge had no power u/s 476 to direct the petitioner''s prosecution for an offence u/s 466 of the Indian Penal Code, inasmuch as Section 466 is not specifically mentioned in Section 195 of the Criminal Procedure Code.

This point was suggested by the Court when petition of admission in this matter was made to a Division Bench of this Court, and we allowed this point to be taken as an additional ground in revision by the petitioner''s petition.

I am satisfied, however, after careful consideration of the matter that there is no substance in this objection.

Section 195 confers jurisdiction upon a Court to grant sanction to prosecute for an offence u/s 463 of the Indian Penal Code. Section 463 is the general section which defines what forgery is, and that section is couched in wide and com-prehensive terms and is intended, in my opinion, to apply to all classes and kinds of forgeries, howsoever committed.

No doubt the offence charged u/s 466 against the petitioner is an offence of forgery of a Court record, a heinous and grave crime. This section deals only with a particular kind of the general species of forgery specified in Section 463. It would be almost absurd to hold that Section 463, which embraces all forgeries, is limited and restricted in its application so as to be inapplicable to the act of forgery committed within the meaning of Section 466. The point, however, is not without authority, and I express my concurrence with the view of the law stated in the case reported as Queen-Empress v. Tulja 12 B. 36 : 6 Ind. Dec. 509. The Calcutta High Court has also taken the came view in the case reported as Teni Shah v. Bolahi Shah 6 Ind. Cas. 879 : 14 C.W.N. 479 : 11 Cri. L.J. 280, and in both these cases it. has been held that Section 463 in its comprehensive and general terms covers an act of a particular kind of forgery which may constitute a separate offence under the specific enumeration of crimes provided for by the Indian Penal Code.

Therefore, I hold that on the second contention submitted the argument of the petitioner must fail.

The third and last contention submitted for my consideration was that Mr. Monahan had no right to exercise the powers vested in him u/s 476 of the Code of Criminal Procedure, inasmuch as the matter out of which this prosecution has arisen did not come before him in the course of a judicial proceeding.

This contention is, in my opinion, absolutely unsustainable.

Gokal Singh preferred an appeal from the order of the Deputy Magistrate discharging Balaram Sahay of the offence with which he was charged u/s 209. In the course of that proceeding there was an appeal lawfully preferred to a proper Court; that Court was of opinion, in the course of that proceeding, that Balaram was not the person to be prosecuted, but that Bachu Behari Lal was. It would be impossible to hold in point of law or fact'' that the learned Judge did not become acquainted with the facts as to petitioner''s participation in the act of forgery relied on to justify his prosecution in the course of a judicial proceeding.

Accordingly I hold that the third argument submitted on behalf of the petitioner is unsustainable in point of law, and I accordingly reject this application and direct the prosecution of the petitioner do proceed forthwith.

The learned Government Advocate asks for costs; this application is refused.