In Re: T. Varadarajulu Naidu

Lakshmana Rao, J.—This is a reference by the Chief Presidency Magistrate, Madras, and the questions referred are:

(1) Whether the complaint preferred in pursuance of an order passed by the Officiating Chief Justice on an office note is an order passed by the

Court within the meaning of Section 476, Criminal Procedure Code.

(2) Whether the Officiating Chief Justice could pass an order u/s 476, Criminal Procedure Code, in a case where no orders were passed u/s 476,

Criminal Procedure Code, either by the trial Judge or his successor or the Appellate Bench that decided the Original Side appeal against the

judgment and decree in C.S. No. 542 of 1931.

(3) Whether the Officiating Chief Justice could be deemed to be the successor to the trial Judge who decided C.S. No. 542 of 1931 in the

exercise of Original Civil Jurisdiction.

The facts are set out in the order of reference, and briefly stated, they are ''that during the trial of C. Section No. 542 of 1931 on the file of the

High Court, two documents dated 10th March, 1928 and 10th May, 1928, purporting to be certified copies of orders dated 2nd March, 1928

and 26th April, 1928, alleged to have been passed in O.P. No. 38 of 1928 were filed on behalf of one of the defendants. The trial Judge, the

present Chief Justice, found that the documents were fabricated and used by Varadarajulu Naidu, one of the defendants in the suit, knowing them

to be such, and the matter was, under the directions of the trial Judge, reported to the Police for necessary action. The police filed a charge-sheet

against Varadarajulu Naidu u/s 471 read with Section 466, Indian Penal Code, and he was committed to the High Court Sessions for trial. There

was however no complaint in writing by the High Court as required by Section 195 of the Code of Criminal Procedure, and the order of committal

was quashed by Cornish, J., on the ground that the offence u/s 471, Indian Penal Code, cannot be taken cognisance of except on the complaint of

the Court in which the documents were given in evidence. The Original Side Office then put up a note to the Officiating Chief Justice setting out the

entire facts, and the Officiating Chief Justice passed an order u/s 476 of the Code of Criminal Procedure directing the Registrar to make a

complaint u/s 471 read with Section 466, Indian Penal Code. The complaint was filed accordingly and process was issued to the accused.

Objection was taken by him to the validity of the complaint and hence this reference.

The order was in terms passed tinder Section 476 of the Code of Criminal Procedure and the real question is whether the Officiating Chief

Justice had no jurisdiction to pass the order. The complaint required by Section 195 of the Code of Criminal Procedure is the complaint of the

Court in which the documents were given in evidence and not of the trial Judge, and as pointed out in Bat Kasturbai v. Vanmalidas I.L.R.(1925)

49 Bom. 710 when a suit is tried by a Judge of the High Court, the term ''Court'' occurring in the section must be taken to mean ''the High Court''.

There is nothing to prevent any Judge of the High Court from dealing with the matter though as a matter of convenience this would seldom be

done, and the matter was in this case placed before the Officiating Chief Justice, as the trial Judge was absent at the time. The Court may, u/s 476

of the Code of Criminal Procedure, make the complaint on application made to it or otherwise, and it need not hold a preliminary enquiry. Notice

to the person proceeded against is not essential, and it is apparent from the order itself, that it was passed by the Officiating Chief Justice in the

exercise of Ordinary Original Jurisdiction. There is therefore no substance in the contention that the Officiating Chief Justice had no jurisdiction to

pass the order u/s 476 of the Code of Criminal Procedure, and questions 1 and 3 do not arise. The proper course for the accused was to appeal

against the order u/s 476 of the Code of Criminal Procedure; and it is queer that objection should have been raised and permitted before the

Magistrate. The reference is answered accordingly and the records will be re-transmitted to the Chief Presidency Magistrate for proceeding with

the case according to law.