Kishanlal Sahu vs Madhabananda Pani

R.K. Das, J.—The defendant is the petitioner. The facts that gave rise to this revision petition may briefly be stated as follows :

There was some dispute between the parties over a shop at Chanclbali and a proceeding u/s 145, Criminal P. C. was also pending. In the meanwhile, the plaintiff-opposite party filed a suit (O. S. No. 4 o� 1961-III) in the Court of the Subordinate "Judge of Balasore. After filing of the said suit, the plaintiff made an application for appointment of a pleader-commissioner for preparing an inventory of the articles and the account books in respect of the disputed shop at Chandbali. A pleader Commissioner was appointed and he made a list of the said articles and forwarded the same to the court and kept the articles in the custody of the plaintiff. On the petitioner''s furnishing security the court directed the return of the said articles to him. Subsequently the trial Court directed another pleader-commissioner to go to the shop and take charge of the articles from the plaintiff and to hand them over to the defendant-petitioner. The pleader-commissioner is said to have issued notice to the plaintiff to hand over the key of the shop and to render him necessary assistance so as to enable him to take charge of the articles and hand over the same to the defendant. The plaintiff, however, did not cooperate with the Commissioner, nor did he hand over the key to him. The fact being of ported to the Court, the Court authorised the Commissioner to break open the lock of the shop house and make over the articles found in the shop to the defendant-petitioner. The Commissioner again went to the spot and found that the plaintiff still avoided him. So he broke open the lock, made a list of the articles as found in the shop and handed over the articles to the petitioner. It was however, discovered that the articles worth about Rs. 15,000/- as compared to the list prepared by the 1st commissioner were missing. The petitioner, thereupon made an application to the Court on 13-7-1961 to file a complaint against the plaintiff u/s 183, I. P. C. No order was passed on this petition.

On 9-8-1961 the defendant put in another petition before the trial Court to prosecute the plaintiff u/s 409, Indian Penal Code, and also to take action for contempt of court against him, the allegation against him being that out of the articles entrusted to him by the court, he misappropriated articles worth about Rs. 15,000/- and also did not lend necessary assistance-to the pleader Commissioner. On 9-7-1982, the trial Court rejected the application. Against this order a miscellaneous appeal was filed before the District Judge, Balasore who by his order dated 9-8-1963 dismissed the appeal and confirmed the order passed by the trial court, with slight modification which is not relevant to the present revision. Against the said order, a revision application u/s 439 C.P.C. was filed, but later on the said Criminal Revision was converted to a Civil Revision as it was found that Section 476 C.P.C. had no application to the proceedings before the that Court, and the appeal before the Dist. Judge was not competent either under Or. 43 CPC or u/s 476-D, Cr. P. C. Hence the Revision petition filed before this Court was treated as one u/s 115, C. P. C. and accordingly has come up for hearing as a Civil Revision.

Both the courts held that there was no prima facie case for sanctioning the prosecution of the plaintiff u/s 409 I. P. C, Further Section 409 is not one of those sections for prosecution under which sanction of the Court is required to be obtained u/s 476 CPC

Mr. Mohapatra, the learned counsel for the petitioner, contended that even though the application made by the petitioner was one to prosecute the plaintiff u/s 409, I. P. C., it was open to the Court to examine the contents of the petition to find out if the allegations were covered by only other sections of the Indian Penal Code and to give necessary sanction for the purpose. According to him, the facts of the case clearly disclosed that the offence committed by the plaintiff was well within the scope of Section 187, if not u/s 409, I. P. C. and in that view of the matter, the court should have proceeded to file a complaint u/s 187 even though the plaintiff (sic) was one for an offence under sec. 409, I. P. C.

This contention was r&sisted by the plaintiff-opposite party on the ground that in the absence of formal application u/s 187, it is not open to the petitioner to contend that the case is covered by the provisions of that Section so as to make out a new case at this stage. It is well settled that mere labelling of a petition under a particular section of the Code is not very relevant if the contents of the petition are sufficient to disclose a particular offence. I would, therefore, take it that there was no bar for the trial court to treat the application as one u/s 187, I. P. C., if otherwise a case could be made out under that Section from the facts disclosed in the petition. Assuming for the time being that the petitioner''s application in the trial court disclosea a case under sec. 187, I. P. C., there are further difficulties in the matter. An offence u/s 187, I. P. C, comes within the ambit of Section 195 (1) (a) of the Code of Cr. Procedure, where it is said that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of Home other public servant to whom be is subordinate. Section 476 C.P.C. lays down the procedure to be followed in respect of offences mentioned in sec. 195. Under that section jurisdiction to make a complaint is limited to cases as provided for in Section 195 (1) (b) or (c) and not (a). Thus, even if the original application would have been labelled as one u/s 187, still then an application u/s 476 CP C. would not have been entertainable. Thus, there is no dispute over the fact that whether the original petition was one u/s 409 or even u/s 187, I. P. C., an application u/s 476, Cr. P. C. was not competent.

The next question is whether it is still open to the Court, apart from the provisions of Sec. 476 to file a complaint when the commission of an offence in the course of proceeding before him comes to its notice. Mr. Row, learned Counsel for the opposite party contended that a complaint outside the provisions of Section 476 CPC cannot be filed by any court under its inherent powers. He relied upon a Full Bench decision of the Allahabad High Court reported in Emperor Vs. Raja Kushal Pal Singh, , where their Lordships held that sections 476 CPC have the same scope and must be read together with the result that it is not open to a court to file a complaint u/s 195 when it is not so open u/s 476. A complaint outside the provisions of Section 476 cannot be filed by any court under its inherent powers except in the case of High Court u/s 476 CPC

This decision, no doubt goes directly against the contention put forward by Mr. Mohapatra, learned Counsel for the petitioner, but there are other authorities of the very same High Court where it was held that a complaint can be filed by a public officer notwithstanding the provisions of Section 476 CPC In a case reported in Channu Lal and Another Vs. Rex, , their Lordships had before them the aforesaid Full Bench decision of the Allahabad High Court. They held that the observation in the Full Bench case "that a Court could file a complaint under Section476 CPC and that it had no inherent jurisdiction to file a complaint otherwise than in accordance with the provisions of that Section" was in the nature of an obiter dictum and was not strictly necessary for answering the question that was referred to the Full Bench. Their Lordships said that the question for decision before the Full Bench was whether Section 476 CPC was applicable so as to render a complaint of a Court necessary before a prosecution for abetment of forgery of some documents could be launched. They observed that the view of Mukherii, J. in the Full Bench case about Section 476 CPC was in answer to an argument that Section 476 was not exhaustive, they observed that they were bound by the decision of the Full Bench. They held that under the U. P. Encumbered Estates Act whether a Liquidation Officer is or is not a Court and whether he in his capacity as a public officer is not prevented by any rule of law from making a complaint if he considers that a party in a proceeding pending before him has committed an offence, as a public servant it would be his duty to bring it to the notice of the Magistrate having jurisdiction to take cognizance of the offence. The fact that he could not have taken any action u/s 476 CPC in his capacity as a Court does not debar him from taking any action in his capacity as a public officer or authority.

The same view was also taken in another case of the same High Court reported in Har Prasad v. Emperor AIR 1947 All 139 where Yorke J. held that sections 476 CPC which are in a sense inter-connected speak of a Civil, Revenue or Criminal Court and an election Judge cannot be brought within the ambit of those'' terms and hence the complaint made by him cannot be entertained by a Magistrate u/s 195 (1) CPC though such a complaint is entertainable u/s 190 (1) CPC

In a case reported in Meher Singh v. Emperor AIR 1933 Lah 884 it was held by Coldstream, J. that although in cases u/s 225-B the proper person to make the complaint is the officer from whom the escape or rescue has been effected, still a complaint by another person aware of the facts is not a nullity. In such a case either Section 195 or Section 476 CPC has no application but a Magistrate is competent to make a complaint as a common informer.

This point appears to have been urged in a case reported in Virindra Kumar Satyawadi v. State of Punjab, (S) A I R 1956 S C 153 and their Lordships observed :

"It has no doubt been held that Section 476 must be taken to be exhaustive of all the powers of a Court as such to lay a complaint, and that complaint hied by it otherwise than under that section should not be entertained. But there is abundant authority that Section 476 does not preclude the officer presiding over a Court from himself preferring a complaint, and that the jurisdiction of the Magistrate before whom the complaint is laid to try it like any other complaint, is not taken away by that section."

While thus observing their Lordships made reference to AIR 1933 Lah 884, Emperor v. Nanak Chand AIR 1943 Lah 208 and AIR 1947 All 139 stated above and held :

"There is thus no legal impediment to a returning officer filing a complaint under sections 181 and 182 as provided in Section 195 (1) (a) and charging the accused therein with also an offence u/s 193."

Though Section 193 finds place in Section 195 (b) and as such the procedure u/s 476 has to be followed, in view of the aforesaid position of law, there cannot be any dispute that it was open to the Court to file a complaint u/s 187 or even u/s 409 :if such a case could be made out on evidence. On this point, however, the Courts below took the view that the pleader Commissioner sent at the first instance, was wrong in allowing the petitioner and his men to go inside the shop-roomand to meddle with the articles at the time of verification and therefore the chances of pilferage by the petitioner or his men cannot be ruled out. The appellate Court was also not satisfied that the plaintiff was called upon by any written notice to be present at the spot and to give necessary assistance to She pleader-commissioner, though there is some evidence to show that the plaintiff was watching the whole thing from a distance. Thus, the Courts below were not satisfied that a prima facie case had been made out to accord necessary sanction for the prosecution of the plaintiff.

Great reliance was placed on the evidence adduced by both the parties, but it is significant that neither the plaintiff nor the defendant has come to the box From a perusal of the evidence, it cannot be said that the findings of the Courts below are unsupported by the evidence. It is well settled that it is not open to the High Court, in exercise of its revisional jurisdiction u/s 115, C. P. C., to question the findings of fact recorded by the subordinate Courts. Section 115, C. P. C. applies to cases involving irregular exercise or non-exercise of jurisdiction or to an illegal assumption of jurisdiction by a Court and is not directed against conclusions of law or fact in which the question of jurisdiction is not involved : see Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, .

9 In sanctioning the prosecution in cases of this nature the relevant consideration is whether it is expedient in the interests of justice that an enquiry should be made and a complaint filed. That involves a careful balancing of many factors and where the lower Court has scrutinised the evidence and has come to certain conclusion on the materials on record and the said conclusion is found to be reasonable, it is not desirable to interfere with that conclusion : M.S. Sheriff Vs. The State of Madras and Others, .

Apart from the filing of the complaint it is still open to the trial Court, to find out in course of the hearing if the plaintiff has in fact misappropriated any of the articles entrusted to him and to ultimately saddle him with the responsibility for the same and to pass necessary orders to recompense the petitioner. But that is a matter with which we are not concerned in these proceedings.

In view of the aforesaid discussions it must be held that the Civil Revision is without any merit and it must accordingly be dismissed, but under the circumstances parties to bear their own costs so far as this Court is concerned.