Chamari Singh vs Public Prosecutor of Gaya

Mullick, J.—[After stating the facts as set out above, his Lordship proceeded:]

There is certainly a prima facie case that the documents are forgeries: for the former Raja of Tikari, who is alleged to have given the mukarrari and also the Raja in favour of whom the usufructuary mortgage is alleged to have been executed, were not alive on the dates on which the documents were executed. As regards the adult mukarraridars, i.e., appellants 1 to 14, it is clear that the District Judge was of opinion that they know that they had not a shadow of a title and that they filed or instigated the filing of the documents knowing that they ware forged. In the circumstances he was justified in taking proceedings against them u/s 476, Criminal Procedure Code. The law does not compel him to make a detailed inquiry, and as he has considered the case of each of these appellants he has, in my opinion, complied with the orders of the Division Bench. The grant of a right of appeal has, in my opinion not conferred any new right upon the accused and the extent of the preliminary inquiry is still left to the discretion of the Court. If a prima facie case has been made out the appeal Court ought not to interfere. In this case the Court has made an inquiry as regards those 14 accused and has made a complaint to a 1st Class Magistrate in order that the Magistrate may follow the procedure of Section 202 or proceed otherwise according to law. The learned Judge evidently intended that the Magistrate, if satisfied that process should issue, should call upon the Public Prosecutor to produce his evidence before him and then either dispose of the case himself or commit it for trial.

We think, however, that some revision of the learned Judge''s order is required as regards appellants Nos. 15, 16, 17, 18 and 19. Mt. Nageshwar Kuer, appellant No. 16, being a pardanashin lady, cannot be expected to have had any knowledge of the nature of the documents or to have taken any part in filing them in Court, and therefore we do not think that there is at this stage a sufficient prima facie case against her.

It also appears that appellant No. 15 is a minor and his name also should be excluded.

With regard to the appellant No. 17, who is the husband of Mt. Nageshwar Kuer, and appellants Nos. 18 and 19, who are her two sons, the learned Judge does not state what evidence there is of their complicity. The learned Assistant Government Advocate has informed us that it is proposed to lay a charge of conspiracy against them u/s 120-B of the Indian Penal Code and also of abetment; but there is nothing on the record to indicate whether there is any prima facie evidence against them. An application has been shown to us, which was made by the Public Prosecutor in the Court of the District Judge on the 11th of February 1924, asking the District Judge to examine certain witnesses and documents in order to connect appellants Nos. 17, 18 and 19 with the other accused. The learned Judge declined to take that evidence. The decision was unfortunate, and as there has been also no further inquiry in regard to these accused since the Division Bench remanded the case, we direct that the inquiry before the Magistrate be confined for the present to petitioners Nos. 1 to 14. If the Public Prosecutor considers it necessary to proceed against appellants Nos. 17, 18 and 19, he is at liberty to make a fresh application to the District Judge, who, after making such further inquiry as he may consider necessary, will decide whether or not their case also should be referred u/s 476 to the Magistrate for trial along with the other petitioners.

Bucknill, J.

I agree.