Chamari Singh and Others vs Public Prosecutor of Gaya

Adami, J.—This application is directed against an order of the Sessions Judge of Gaya, dated March 6th, 1924, forwarding to the District Magistrate proceedings taken against the 40 petitioners u/s 476, Cr. P. Code, and requesting him to hold an inquiry with a view to the prosecution of the petitioners u/s 471 read with Section 467 of the Indian Penal Code.

On May 25th 1923, the petitioners 1-37 filed before the Subordinate Judge, Second Court, Gaya, a petition u/s 83 of the Transfer of Property Act 1882, for permission to deposit the sum of Rs. 5,350 on account of the amount due under a Usufructuary mortgage deed, dated 13th February, 1833, executed by the predecessor-in-interest of the petitioners in favour of Raja Modh Narain Singh of Tikari, the predecessor-in-interest of Rani Bhubneswari Koer, the present proprietress of the 7 annas Tikari Raj, and they also prayed for recovery of possession of the mokarrari properties mortgaged under the said deed consisting of about 26 villages. Together with the petition they filed three documents, (1) a Mokarrari Patta alleged to have been executed by Maharaja Sunder Singh on January 5th, 1811, in favour of Khirodhar Singh, ancestor of petitioners 25 to 36 and Deyali Singh ancestor of petitioners 1 to 24(1) a Usufructuary mortgage deed dated February 13th, 1833, alleged to have been executed by the sons of Khirodhar and Deyali in favour of Raja Modh Narain Singh, son of Raja Miterjit Singh, in respect of the same properties at an annual Jama of Rs. 1,900 in consideration of a loan of Rs. 5,000 sicca rupees, (3) a Darmokarrari patta of a 12 annas share of the same property, dated April 30th 1923, in favour of Mt. Nageswar Koer, petitioner No. 37, in consideration of a payment of Rs. 7,000, out of which Rs. 5,350, said to be the equivalent of Rs. 5,000 sicca rupees, was to be paid to the present holder of the 7 annas Tikari Estate in redemption of the mortgage of 1833, On the same date the petitioners asked that the documents they had filed might be returned to them and their request was granted. Notices were issued to Rani Bhubneswari Koer u/s 83 and on May 29th a chalan was filed showing deposit of Rs. 5,350 by the petitioners.

On June 11th, the opposite party, Rani Bhubneswari Koer filed a petition denying that she held the property under mortgage from the petitioners. At her request the petitioners filed again the documents of 1811 and 1833.

On June 13th Amrit Singh on behalf of Rani Bhubneswari Koer prayed for an inquiry u/s 476, alleging that the documents filed by the petitioners were forgeries. In the alternative he prayed for sanction u/s 195 for the prosecution of the petitioners.

On June 15th the Subordinate Judge held that, since the deposit had been made and had been refused by the opposite party, his functions u/s 88 were ended and there was no occasion for him to enter into the question whether the petitioners were in fact in the position of mortgagor''s and had title to the property, nor could he put the petitioners into possession of the property under that section. He then considered whether he should take action u/s 476, Cr. P. Code, and decided that it was not open to him to do so, since he held that proceedings taken u/s 83 of the Transfer of Property Act were not judicial proceedings.

With regard to the accord of sanction u/s 195, Cr. P. Code, he ordered that an inquiry should be held, and called upon the petitioners to show cause why they should not be prosecuted for using forged documents.

It may be well to state here the grounds on which it was alleged that the two documents were forged. The Patta, dated January 5th 1811, purported to be the grant of a mokarrari lease by Maharaja Sundar Singh in 1811, whereas Maharaja Sundar Singh had been murdered in 1759. The deed of 1833 purported to grant a mortgage to Raja Modh Narayan Singh in 1833, though the latter cannot have ascended the gadi till 1840, when his father Raja Mitarjit Singh died. Also the consideration for the mortgage was exceedingly low and threw the greatest doubt on the genuineness of the transaction.

On July 13th the Public Prosecutor appeared to watch the proceedings under the direction of the District Magistrate, since, as explained by the District Magistrate, the petitioners on the basis of their claim under the documents, were stirring up the tenancy of the 26 villages against Rani Bhubneswari Koer, and there was likelihood of a serious breach of the peace which would not be allayed until the genuineness of the claim could be established.

No further progress was made in the case till September 29th, except that the petitioners put in certain documents to support the genuineness of the two documents in question. On September 29th, 1923, the Subordinate Judge recorded the order "Heard Parties." "The Criminal Procedure Code, Section 195 has now been amended. Under the amended section no sanction can be granted to a private party. Hence this proceeding cannot go on, and it is dropped." Then, considering a petition for the return of the documents, the Subordinate Judge remarked that it was the Vakil of the applicant for sanction who had suggested that under the amended Code the proceedings must be dropped and he was unwilling to proceed with the case then, wanting time. The Subordinate Judge refused to grant time and so the case was dropped. He thought, however, that as Section 476 had been amended it might be intended to make a fresh application under that section, or the Public Prosecutor might want to take steps, so he refused to return the documents to the petitioners till October 5th. On October 5th the Public Prosecutor notified the Court that he was going to move the District and Sessions Judge on behalf of the Crown, so the documents were kept in custody. On that day the Public Prosecutor presented an appeal to the District and Sessions Judge against the orders of the Subordinate Judge refusing action u/s 476 or Section 195. He asked the District and Sessions Judge to take action under either Section 476-A or 476-B.

After hearing the parties, the Sessions Judge drew up proceedings against all the 40 petitioners and requested the District Magistrate to inquire into the case with a view to prosecution; and it is against that order that the present application is made.

Mr. Manohar Lal on behalf of the petitioners has attacked the jurisdiction of the learned Sessions Judge and the procedure followed on several grounds.

In the first place he argues that the Subordinate Judge, when he received and dealt with the petition u/s 83 of the Transfer of Property Act, 1882 was not a Court within the meaning of Section 476, Cr. P. Code and therefore action could not be taken against the petitioners u/s 476 as there was no proceeding before a Court, His argument is based on the fact that the Subordinate Judge u/s 83 was required merely to accept the petition and deposit and to issue notices to the alleged mortgagees. There was no lis pending and he was not required to decide any point under the Section; therefore he cannot be held to be a Court. If this contention were right Section 83 would be meaningless, for it states that the deposit must be made in the Court in which the mortgagor might have instituted a redemption suit; the Subordinate Judge must be a Court for the purpose of the deposit. The authorities on which Mr. Manohar Lal relies do not really help him. The decision in Tattayya v. Pichayya (1890) 13 Mad. 316 lays down merely that proceedings u/s 83 are not proceedings in a regular suit, while the cases of Mathura Prasad v. King-Emperor (1919) 4 P.L.J. 475 and Vijiaraghavalu Pillai v. Theagaroya Chetti (1915) 38 Mad. 581 decide that certain officers in performing certain functions are not acting judicially. In the present case it is only a Court that can perform the function; it would be absurd to hold that it is not a Court when performing it.

Whether the proceeding before the Court u/s 83 is or is not a judicial proceeding need not be decided here; nor whether the Subordinate Judge was right in finding in June, 1923, that he could not proceed u/s 476, Cr. P. Code; under the amended section it is not essential that the proceeding in respect of which action is taken should be of a judicial character.

It is contended that u/s 83 of the Transfer of Property Act it is unnecessary to adduce any evidence oral or documentary; a mere petition on the part of a mortgagor, without any affidavit is sufficient, and the Court is not required to inquire whether the person filing the petition is in fact a mortgagor as he alleges; therefore the documents filed by the petitioners with their petition, were filed absolutely gratuitously and the Court was not called upon even to look at them. On this ground it is argued that the documents in question were not really before the Court, and cannot be treated as being used for the purpose of evidence. Seeing that there was no fact in issue in the proceeding u/s 83, there was nothing to which they could be held to be relevant evidence. Now it is quite clear that the documents were filed by the petitioners to prove that they were in fact mortgagors of the property and to support their action in making the deposit It may be that it was unnecessary to file them and it might be held that they were not used for the purposes of evidence, but the fact remains that the documents came to the notice of the Court in relation to a proceeding before it, and it appeared to the Court that they were not genuine, and that an offence had been committed''. Under the circumstances I hold that the Court was competent to take action u/s 476 in relation to them.

It is next argued that, so far as the proceedings u/s 476, Cr. P. Code are concerned, the Subordinate Judge had on June 15th refused to take action under that Section, and no appeal was made against his order, and so, that order still stands and it was not competent to the Court to pass an order directly contrary to the previous one. As a matter of fact no appeal was made and the decision that action could not be taken because there was no judicial proceeding stands so far as the old Section 476 is concerned. The Court merely refused to take action under the section. The amendment of the Code has removed the obstacle to action u/s 476 in this case which existed under the old Code, and the fact that no action could be taken in June and so the proceeding had to be dropped before inquiry was made, will not preclude action being taken under the section as amended. "What the Public Prosecutor and the opposite party have now done is to approach the Sessions Judge with a prayer to take action now under the new law which could not be taken before under the old law

With regard to Section 195, Mr. Manohar Lal urges that the Subordinate Judge was wrong in dropping the proceedings, since under Clause (e) of Section 6 of the General Clauses Act, 1897 (X of 1897) the inquiry u/s 195 ought to have been continued under the old law. That clause has to do with substantive rights and not with matters of procedure. Even if Mr. Manohar Lal''s argument is correct, the fact remains that the proceedings were merely dropped as incompetent; that would not prevent fresh action being taken under the amended law. It is urged that, as no appeal was made against the order dropping the proceedings within 30 days, an appeal now is incompetent. I do not consider that the action taken by the Public Prosecutor in moving the Sessions Judge was an appeal against the order dropping proceedings u/s 195. He may have called his petition an appeal; it was really an application that action should be taken in accordance with the change in the law, the change having rendered previous proceedings abortive and in such case the period of limitation need not be noticed so long as there was no unreasonable delay in taking action.

The next question that arises is the question of the section under which the Sessions Judge proceeded. In my mind his proceeding was covered by Section 476 A. That section permits a superior Court to take action similar to that described in Section 476 in any case in which the Subordinate Court has neither made a complaint u/s 476 in respect of the offence nor rejected an application for the making of such complaint. The present Sections 476, 476A and 476B have taken the place of the old Sections 195 and 476, and it is argued that Section 476A cannot apply to the present case because the Subordinate Judge did not grant the application for action under Sections 195 and 476, and must therefore be said to have rejected the applications for making complaint. I cannot find that the Subordinate Judge can be said to have rejected applications for the making of complaints in the sense of Section 476A. An application for action u/s 476 was found to be incompetent because the alleged offence had not come before the Court in the course of judicial proceedings. The application was not considered, on its merits and rejected. The previous application if it was to be entertained had to be a complaint of an offence which had come to the notice of the Court in the course of judicial proceedings; the present complaint is different, and can be entertained u/s 476 as now amended. The complaint u/s 195 cannot be said to have been rejected; further proceedings under the section were merely dropped, or it may be said, withdrawn by the applicants. The petitioners are trying to take advantage of the change of the law in both ways; they claim that before the change they were safe against proceedings u/s 476, and that after the change they should escape the provisions of Section 195 altogether, because the Court dropped the proceedings under the impression that Section 195 no longer could operate against them.

Instructed by the District Magistrate it was quite open to the Public Prosecutor to move the Sessions Court to take action u/s 476A, in view of the fact that the Subordinate Judge had allowed the proceedings u/s 195, to be dropped without passing any order of rejection. The fact that the Public Prosecutor called his petition an appeal and mentioned both Sections 476A and 476B does not make much difference.

Mr. Manohar Lal contends that the Sessions Judge had no jurisdiction to interfere, because the amount of deposit was over Rs. 5,000, and therefore any appeal from the Subordinate Judge''s decision lay to this Court and not to the District or Sessions Judge. Section 195, Sub-section (3) read with Section 476B would dispose of this objection, even if it were held that the matter came up to the Sessions Judge by way of appeal u/s 476B.

Mr. Manohar Lal has discussed before us the documents alleged to be forgeries and certain other documents filed in support of them. It is not my intention to consider these here further than to say that, unless such well-known authorities as "Hunter''s Statistical Account of Bengal," the "Fifth Report". Boddam''s "Account of Zamindars in Bengal", and other historians are mistaken in their dates, the two documents of 1811 and 1833 are on the face of them open to grave suspicion.

With regard to the other documents produced by the petitioners, Mr. Manohar Lal has pointed out that the learned Sessions Judge is mistaken in some of his remarks. The copy of the judgment in Case No. 26 of 1826 does in fact give the name of the Judge as Liladhar Pandit and of the Saristadar as Dost Muhammad. The certified copy of a decree gives 1811 and not 1810 as the date of the mokarrari deed. The learned Judge has evidently read the Urdu figures wrongly. The certified copy of an order in Execution case dated August 17th, 1866, bears a stamp dated 1867 and not 1861. The genuineness of these will be considered if the case comes to trial; it is unnecessary to discuss them here.

The last contention put forward on behalf of the petitioners is that the learned Sessions Judge has failed to consider the case of each of the petitioners and to decide whether complaint should be made against each individual, and I think this contention must succeed. There are altogether 40 petitioners. Of these Nos. 6, 7, 9, 11, 15, 17, 21, 22, 24, 32, 34, and 35 are minors, No. 37 is a Pardanashin lady of 85 years of age, and Nos. 38, 39 and 40 were not signatories of the petition u/s 83. As to the minors, we have no information as to their age, some of them may be mere infants, and in any case they would be represented by guardians in the petition. Without some inquiry it would be absolutely impossible to find that they were cognisant that the documents were forged, and that this should be included in the complaint. With regard to petitioners 38, 39, and 40 there is nothing before this Court to show that they were aware that the documents of 1811 and 1833 were forged, though the nazrana demanded in consideration of the darmokarrari patta of 1923 might have raised their suspicions. They were not parties to the filing of the petition u/s 83.

The learned Sessions Judge has, I think misconceived the provisions of Section 476. He states:

Nor is it necessary to hold a preliminary inquiry under the law, if the Court is satisfied on the material before it that an inquiry is necessary. I am satisfied that such an inquiry is necessary on the grounds summarised above in the case of all the 40 persons mentioned in the list, and forward the proceedings to the District Magistrate, Gaya, with the request that an inquiry be made and that the said persons, if the case is established, may be prosecuted u/s 471 read with Section 467 of the Indian Penal Code or any other Section or sections that may be found to apply.

Section 476 contemplates that after making such inquiry as may be necessary, the Court should make a complaint in writing. It is for the Court acting u/s 476 to make any inquiry that is necessary and then to make a complaint against the person or persons who, he is satisfied, have committed an offence. The section does not contemplate that the Court should send the case to a Magistrate for inquiry whether the offence it suspects has been really committed, and for prosecution, if the Magistrate is so satisfied. The Court must be satisfied that there is a prima facie case against each person sent to the Magistrate, and then can lay a complaint u/s 476.

It is not sufficient that the Magistrate to whom the complaint is made u/s 476 is entitled to hold an inquiry u/s 202. Generally he will consider that the fact that the Court has made the complaint is sufficient to justify issue of process against the accused at once. But even if u/s 202 an inquiry is held, the persons complained against have no opportunity to show their innocence till after they have been summoned.

The learned Sessions Judge should have satisfied himself by inquiry that there was a prima facie case against each one of the petitioners before laying a complaint against any one of them.

In the present case there were 37 signatories to the petition u/s 83 it is extremely likely that some of them knew nothing about the petition or the documents.

On the ground that the cases of the individual petitioners have not been considered, it will be necessary to set aside the order passed by the learned Sessions Judge and to direct that further inquiry be made by him as to the complicity and knowledge of the individual petitioners. After such inquiry it will be open to the learned Sessions Judge to make a complaint u/s 476 against such of the petitioners as he believes to have committed an offence.

Sen, J.

I agree.