In Re: Kalluru Ramalingam and Others

Abdur Rahim, J.—These are applications to set aside an order u/s 476, Criminal Procedure Code. The order was passed by the District

Munsif in the course of a certain execution proceeding in his Court. It appears that the property attached in execution of the decree was alleged to

have been sold by the judgment-debtor to a third person and the vendee put in a claim. The consideration for the deed of sale was two promissory

notes which the learned District Munsif had reasons to suspect were forgeries. The claimant did not appear in support of his claim, but the District

Munsif examined the executant of the promissory notes as well as an attestor of one of the promissory notes and he then came to the conclusion

that the petitioners, i.e., the executant of the notes and the attestors should be prosecuted as he was of opinion that the notes were forged

documents. The question before us is whether Section 476 applies at all to this matter. The section says that any Civil, Criminal or Revenue Court

may order prosecution with reference to any offence referred to in Section 195 and committed before it or brought under its notice in the course of

a judicial proceeding. The question we have to decide is whether the terms of this section are satisfied where, as here, one of the offences

mentioned in Section 195 of the Criminal Procedure Code has been committed but not by any party to any proceeding before the Court. The

offences charged fall within Clause (c) to Section 195 which says ""no Court shall take cognizance of any offence described in Section 463 or

punishable u/s 471, 475, or 476 of the same Code when such offence has been committed by a party to any proceeding in any Court in respect of

a document produced or given in evidence in such proceeding except with the previous sanction, etc"". In this case the offence of forgery if one was

committed was not committed by any party to any proceeding before the Court executing the decree and if that qualification is to be imported into

Section 476 the District Munsif had no jurisdiction to make the order in question. The decisions on the point are conflicting. In Calcutta the opinion

is divided. The view laid down in Akhil Chandra De v. Queen Empress ILR (1895) Calc. 1004 is that Section 476 must be construed as being

entirely self-contained and that we are only to refer to the offences mentioned in Section 195 without any of the restrictions or qualifications that

are to be found there as to the circumstances in which the offence is committed. But apparently a different view prevailed in Dharmadas Kawar v..

King-Emperor (1908) 7 C.L.J. 373 and Jadu Nandan Singh v. Hmperor ILR (1910) Calc. 250. I may mention that Akhil Chandra De v. Queen-

Empress ILR (1895) Calc. 1004 was u/s 478, Criminal Procedure Code, and not 476, Criminal Procedure Code; but solar as the question before

us is concerned it does not appear that that would make any difference. Dharmadas Kawar v. King-Emperor (1908) 7 C.L.J. 373, and Jadu

Nandan Singh v. Emperor ILR (1910) Calc. 250 are both u/s 476 and the learned Judges in the latter case seem to have gone rather fully into the

matter and considered the authorities on the point. In this Court there is only one decision which is directly in point, viz., Abdul Khadar v. Meera

Saheb ILR (1892) Mad. 224 where the learned Judges expressly lay down that Section 476 applies only to the offences mentioned in Section 195

if they are committed by the person or in the circumstances mentioned therein. There is however a dictum of Sankaran Nair, J., in a Full Bench

case--Aiydkannu Pillai v. Emperor ILR (1909) Mad. 49 There the learned Judge observes that the operation of Section 476 is not confined by the

restrictions mentioned in Section 195. That was a mere obiter dictum unnecessary for the decision of the question before the learned Judge. Two

decisions of the Bombay High Court have been brought to our notice, viz., In re Devji valad Bhavani ILR (1894) 18 Bom. 581 and In Re: Keshav

Narayan Manolkar, . Both support the view in favour of the wider interpretation of Section 476. We have also been referred to Girwar Prasad v.

King-Emperor (1909) 6 A.L.J. 392, but that case is not a clear authority in support of either the one or the other position. The question is certainly

not free from difficulty, but we thought we could dispose of it at once as it was fully argued before us. On the whole, I am inclined to follow the

view taken in Abdul Khader v. Meera Sahib I.L.R 15 (1892) Mad. 224. One circumstance which does not appear to have been noticed in any of

the reported decisions is that some guidance as to the scope of Section 476 is afforded by the heading to Chapter XXXV which shows the class

of offences which are intended to be dealt with in the chapter in which Section 476 occurs. The heading of the chapter is, ""Proceedings in case of

certain offences affecting the administration of justice."" If the wider interpretation contended for on behalf of the Crown were to be adopted, then

the section would apply to cases which have no relation whatever to the administration of justice. It might be, for instance, that a forgery was

committed and brought to the notice of a Court and yet the forged document was not intended to be used and was never in fact used in connection

with any proceeding. I may say that if the language of Section 476 was clear, we would be bound to give effect to it apart from the heading of the

chapter. But the language not being clear to show how much of Section 195 is to be imported, I felt myself justified in deriving light from the

description of the chapter which begins with Section 476. I may observe that the learned Judges who decided Akhil Chandra De v. Qneen-

Empress ILR (1895) Calc. 1004 remarked that if the narrower interpretation of Section 478, Criminal Procedure Code were upheld, no meaning

''could be given to the words of that section--the same words occur in Section 476, Criminal Procedure Code as well--""or brought under its notice

in the course of a judicial proceeding."" With all respect to them, it seems to me that they are under some misapprehension as to this. If an offence

of the nature described is committed by a party to a proceeding, the Court before whom the. proceeding lay can give sanction u/s 195, bat

suppose that very matter is brought under the notice of another Court in the course of another judicial proceeding to which the offender is not a

party, then the use of Section 476 comes in and the Court under whose notice it is brought can make an order under that section.

I therefore hold that this order in both the cases must be set aside.

Spencer, J.

The question is full of difficulty. In Re: Keshav Narayan Manolkar, , Batchelor, J. observes, ""All that is required by Section 476 is that such an

offence as is there, i.e., in Section 195 referred to, should be either committed before the Court or brought under its notice in the course of a

judicial proceeding. ""I think that as far as possible we should give effect to the plain wording of the section and not introduce anything that is not

there, but in this case, if we give the fullest scope, to the words ""brought under its notice in the course of a judicial proceeding,"" it will have the

effect of giving Courts a very wide power to arrest and send persons to trial even when the offences have no direct connection with any

proceeding in Court, as for instance, where some statement is elicited in the cross-examination of a witness as to a previous act of forgery

committed by him. In the Indian Penal Code, forgery comes under the class of offences relating to documents and not under the class of offences

against public justice, which includes offences under Sections 191 to 229. In this way, the powers of Courts will be enlarged beyond the scope of

the heading of Chapter XXXV, Criminal Procedure Code, in which Section 476 occurs. There is also considerable force in the observation in

Akhil Chandra De v.Queen-Empress ILR (1895) Calc. 1004 that if Section 476 is to be read as qualified by the circumstances referred to in

Section 195, then it is difficult to give any meaning to the words in Sections 476 and 478 ""or brought under the notice of any Civil, Criminal or

Revenue Courts in the course of a judicial proceeding."" But Girwar Prasad v. King-Emperor (1909) 6 A.L.J. 392 is an instance of an offence

which was brought to the notice of a Civil Court in the course of a judicial proceeding and yet without being an offence committed in relation to any

proceedings in that Court was an offence affecting the administration of justice. It may also be observed that when, as here, a person who is not a

party to any proceeding in any Court is accused of committing forgery in respect of a document, no sanction is required before he is prosecuted.

I therefore agree in the absence of any conflict of decisions of this Court, with my learned brother''s decision which finds support in Abdul

Khader v. Meera Sahib ILR (1892) Mad. 224, the only decision directly on the point in this Court.