K.A.M. Mahamad Abubacker Sahib (alias) Shawakatali vs K.A.M. S. Mahammad Mohideen and others

Mack, J.—This is a revision petition filed by the plaintiff in O.S. No. 19 of 1946 in which the learned Subordinate Judge of

Ramanathapuram Sri imamuddin in his judgment dated 14th August 1947 found a wakfnama dated 1st April 1945 purporting to be executed by

the plaintiff''s deceased brother, Imar Sahib, to be a forgery. This finding was confirmed in appeal by Subba Rao, J. and Somasundaram, J. in

App. No. 124 of 1948. More than three months after the disposal of the suit, the petitioner filed M. P. No. 159 of 1947 on 19th November 1947

under S. 476, Crl.P.C., for a complaint being laid against his brother''s son, Mahammad, second defendant and eight others including the writer

and five attestors. This petition appears to have been filed after Mr. Imamuddin was transferred from the Sub Court, Ramnad, on 12th September

1947, and to have remained there in cold storage till after the disposal of the appeal by the High Court, after which it was taken up for hearing by

Sri M.V. Harihara Aiyar, the then Subordinate Judge, who on 13th December 1950 directed a complaint to be laid against seven persons, namely,

the second defendant, and the writer and the attesters who had given evidence for offences of forgery and per. jury. In appeal the learned District

Judge of Ramanathapuram, now Ramaswami, J. in a very elaborate judgment covering 17 printed pages did not consider it expedient in the

interests of justice that a complaint should be launched. This revision petition against that judgment filed in 1951 regrettably comes up for hearing

now, more than seven years after the disposal of the suit in relation to the trial of which forgery and perjury are alleged to have been committed. I

certainly see no grounds for interfering in revision. The petition however raises for consideration the legality of the procedure adopted in the present

case and the scope of S. 476, Crl.P.C. in its application to complaints of this kind. There appears to be a notion prevalent that at any time after

judgment is pronounced in a suit, a party may move the Court to lay complaints under S. 476 and that a Court irrespective of the fact whether the

presiding officer is the Judge who actually disposed of the suit, should go again into the merits and come to the finding required by this section as to

whether it is expedient in the interests of justice that an enquiry should be made into offences of perjury or forgery, which came to notice during the

trial of the suit. This is, in my view, an entirely erroneous conception of the scope of S. 476, Crl.P.C. which in relation to offences, such as perjury

or forgery on which the trial Court has given its finding requires the Judge who has tried the case to record the finding required under S. 476 and to

lay the complaint. As I read S. 476 (1) the responsibility in this category of cases primarily rests on the Court though it may also be moved to do

so by an application. S. 476 (1) is very wide in its scope and includes offences not actually committed such as perjury in the presence of the Court

during trial but also offences committed in relation to Court proceedings outside the Court, for instance that considered by a Full Bench of the

Calcutta High Court in Bahadur v. Eradatullah Mallaick 87 Cal. 642 (F.B.). That was a case in which a judgment creditor brought to the notice of

the Munsif on 23rd December 1908 the fact of resistance to the attachment of moveables in execution of his decree, and the Munsif called upon

the opposite party to show cause. But his successor after holding a preliminary enquiry under S. 476 of the Code, ordered prosecution on 6th

October 1909 for offences under Ss. 183, 186 and 353 of the Penal Code. It was held that the order was not without jurisdiction and that the

word ""Court"" in S. 476, Crl.P.C. included the successor of the Judge to whose notice the commission of it was brought in the course of a judicial

proceeding. It is clear that in canes under S. 476, Crl.P.C. the Judge who passed the final order under S. 476 Crl.P.C. sometimes cannot and also

need not in strict law be the Judge in office at the time the offence appeared to have been committed in relation to a Court proceeding. When

however the offence contemplated by S. 476 is committed in the course of or in relation to the trial of a suit and brought to the notice of a Judge

who gives his finding in his judgment as to whether a document is a forgery and whether the testimony given by witnesses before him is false, it is

not only desirable but expedient from all stand points that it is the Judge who disposed of the case who should ordinarily decide whether it is

expedient in the interests of justice to lay a complaint under S. 476, Crl.P.C.

In Rahimatullah Sahib v. Emperor 31 Mad. 140 (F.B.), a Full Bench of this Court, Sir Arnold White C.J. and Wallis J. with Miller J. dissenting

took the view

that it was the intention of the legislature in enacting S. 476 that an order under this section should be made either at the close of the proceedings or

so shortly thereafter that it may reasonably be said that the order is part of the proceedings.

In that case a Magistrate acting suo motu ordered the prosecution of the petitioner under S. 211, I.P.C. on the 3rd November 1906 for filing a

false complaint after the District Magistrate refused in revision to set aside the Magistrate''s order discharging the accused. Miller J. in his dissenting

judgment found himself unable to agree to the broad proposition the Full Bench laid down who quoted with approval a ruling by Davies and

Boddam JJ. that a Magistrate has no power to act Suo motu under S. 476 after the case before his predecessor has been closed without any

action being taken under that section. A similar view was indicated in Re Subbaraya Vathiar 13 M.L.J. 439, to the effect that the language of S.

476, Crl.P.C. warranted and provides for immediate action. Miller J. while indicating his agreement with in Re Subbaraya Vathiar 13 M.L.J. 439,

expressed his inability to go further and to hold that the section either expressly or impliedly excluded action taken after the close of the

proceedings in the course of which the offence was committed or brought to notice. He took the view that there was nothing in this section to

indicate that the opinion in all cases had to be formed as soon as the offence was committed. An illustration he gave was of a Court some days or

weeks after trying and deciding a suit before it discovering perhaps in the trial of another suit, that the plaintiff or a witness in the former suit has

been guilty of gross perjury or of using as genuine a forged document. He posed the pertinent query :

Is the Court to be helpless in such a case? Must the offender go unpunished unless the opposite party (who it may be has obtained a decree in his

favour on a point of law and is satisfied therewith) chooses to apply for sanction to institute proceedings, or unless the Judge himself goes down to

the Magistrate''s Court and makes and swears to a complaint.

That decision was however confined to a Court taking suo motu action some time after the proceedings had been closed. In a Fuller Bench of five

Judges in Aiyakannu Pillai v. Emperor 32 Mad. 49, Miller J. again dissenting, the same view was taken that the power conferred by S. 476 can be

exercised by the Court only in the course of the judicial proceeding, or at its conclusion or so shortly thereafter as to make it really the continuation

of the same proceeding in the course of which the offence is committed. This view, by which I am bound, appears to curtail the powers of a Court

acting suo motu under S. 476, Crl.P.C. and although material may come to its notice in subsequent judicial proceedings which show that either

perjury or forgery has been committed by a party in relation to earlier proceedings which have been closed, the Court which has this material both

past and present in its possession appears to be precluded from filing any complaint suo motu under S. 476, Crl.P.C.

The category of cases however with which this revision petition is concerned, one of frequent occurrence, is confined to material placed before

the trying Judge himself in the trial of the suit. As I see it. it primarily his duty and responsibility to decide suo motu at the time of judgment whether

it is a fit case in which it is expedient in the interests of justice to lay a complaint. I need scarcely say that it is always in the interests of justice for a

Court to lay such a complaint if the nature of the evidence is prima facie sufficient to warrant a criminal conviction, as otherwise a premium would

be put on these offences being committed with impunity in relation to civil justice. The point arises whether in such cases it is open to a party to file

petitions for action under S. 476, Crl.P. C. several weeks or months after the suit has been terminated, sometimes as in the present case after the

Judge who tried the suit no longer presides over the Court. The view that I have no hesitation in taking is that the principle laid down in Rahimatulla

Sahib v. Emperor 31 Mad. 140, and Aiyakannu Pillai v. Emperor 32 Mad. 49, should be applied to cases of this type and such petitions when

made under S. 476, Crl.P.C., must be deemed to be within the scope of the suit itself. Sri Gopalaswami Aiyangar for the petitioner has urged that

it is not possible for a decision to be taken whether to file such a petition or not under S. 476, Crl.P.C., in anticipation if the finding of the trial

Judge and that it is necessary for a copy of the judgment to be obtained and studied before such a decision can be taken. I can see no substance in

this contention. Presumably during the trial of the suit and in the course of arguments thereon, the document, in question has been vigorously

challenged as a forgery and also evidence given sought to be made the subject of a complaint for perjury vigorously attacked as false at the trial.

Mr. Ethiraj who appears for the respondents and also the learned Public Prosecutor, Mr. V.T. Rangaswami Aiyangar, who was given notice on

this petition both agree that in cases of this type coming within the broader scope of S. 476 Crl.P.C., there is no legal impediment whatsoever to

Counsel at the time of arguments asking the Court in the event of its finding the document to be a forgery or the evidence of certain witnesses to be

perjured to take action under S. 476, Crl.P.C., or even to their filing petitions for such action to be taken before judgment in the suit. The

defendant may ask in his written statement for judgment in his favour on the basis of the suit document being a forgery. He can also ask for penal

costs under S. 35-A. There is so far as I can see nothing to prevent him from asking the Court to sanction the prosecution of those responsible for

the forgery in anticipation of judgment. What must be strongly deprecated and discouraged is the filing of these petitions several months after

judgment. It is bad enough for the trial Judge to go back into the facts of a case he has closed. Nor is such a petition complimentary to the trial

Judge himself, suggestive as it is that he has not done his duty in laying a complaint for forgery or perjury suomotti at the time of judgment, which he

was obviously competent to do. That a Judge who has not tried the suit should deal with an application in cases such as this under S. 476 Crl.

P.C., is one when should if possible be avoided at all costs. The party to the suit has every opportunity on the material in the suit itself during the

trial or immediately after judgment to move the Court that is the Judge, who disposed of the suit, to take immediate action under S. 476 Crl. P.C.

There is another aspect of the matter from the standpoint of the appellate Court. It is absolutely necessary that the trial Court should make up its

mind and dispose of an application under S. 476 Crl.P.C., as a continuation of the suit itself so that when the matter comes up in appeal there can

be a final adjudication both of the suit, and the laying of a complaint under S. 476, the trial of which is invariably stayed pending disposal of the

appeal. I cannot deprecate too strongly the procedure in the present case which has resulted in this application under S. 476 Crl.P.C., being kept

in cold storage pending the disposal of the appeal with, it would appear, the appellate Court being in complete ignorance as to such an application

having been made. The result has been a third cycle of litigation in appeal and revision in the matter of the application under S. 476 Crl.P.C.

I think that in this category of cases within the wider scope of S. 476 Crl.P.C., the principle laid down in Rahimatulla Sahib v. Emperor 31 Mad.

140 and Aiyakannu Pillai v. Emperor 32 Mad. 49, should be applied not only to Judges arid Magistrates acting suo motu after proceedings have

been closed, but also to applications by parties under S. 476 Crl.P.C., which must be moved by a party to the suit before or immediately after

judgment. The petition is dismissed, without in the circumstances any order as to costs.