Kishen Dayal Singh vs Jaglal Mandal

Jwala Prasad, J.—This is an application against an order of the District Judge of Purnea, dated the 16th June 1917, confirming sanction to prosecute the petitioner under sections 465, 471 and 196 of the Indian Penal Code passed on the petitioner. The sanction relates to an entry in a Bahi filed in the Civil Suit No. 506 of 1913 in the Court of the Subordinate Judge of Purnea. The entry in the Bahi was held by the Subordinate Judge, who tried the case, to be a "childish forgery" by his judgment dated the 8th of September 1914. On appeal by the petitioner the District Judge agreed with the view taken by the Subordinate Judge as to the forgery of the entry in question in the Bahi. The judgment of the Appellate Court was passed on the 22nd of December 1915. There was a second appeal by the plaintiff to the High Court, but the said appeal was summarily dismissed. The exact date of the dismissal of the appeal is not known, but the appeal must have been filed within three months from the date of the decree of the first Appellate Court, that is, before the 22nd of March 1915.

The present application for sanction to prosecute the petitioner was filed by the opposite party, who was a defendant in the original suit on the 22nd June 1916. The application was disposed of by the Subordinate Judge on the 16th June 1917. The Subordinate Judge granted the sanction, whereupon the petitioner moved the District Judge under clause 6 of section 195 of the Code of Criminal Procedure. The appeal before the District Judge was disposed of on the 7th November 1917. It may be mentioned here that after the dismissal of the appeal in the civil suit by the District Judge and apparently after the application for sanction was made before the Subordinate Judge, an application on behalf of one Rash Behari Lal was made to the District Judge for the return of the document. This application is not dated but the seal of the Court bears the date 1st July. The document was taken back from the Judge''s record room, but when and by what order of the Court is not at all clear from the papers on the record. In the list of exhibits there is a note against the Bahi in question as having been received under a signature which purports to be that of a Rash Behari Lal. It is not at all shown who this Rash Behari Lal is, on whose behalf the application for return of the Bahi was made and who eventually succeeded in taking back the document during the pendency of the application for sanction. Rash Bihari does not appear to be one of the parties concerned in the case. The receipt given on the document is also not dated.

The order of the Court of the 16th June 1917 calling upon the opposite party to produce the document does not appear to have been complied with, nor was there any insistence by the opposite party to have the document produced in Court. Nor did the Court itself consider it desirable or necessary to have the document produced before it. The result was that the document was not produced and sanction was granted merely upon the finding of the predecessor of the Subordinate Judge, recorded in the judgment of the original suit. Likewise the District Judge also did not take any steps to have the document produced and baaed his conclusions on the finding of his predecessor-in-office, who had heard the appeal in the original case.

In a case of entries in the Bahi held by one Court to be a "childish forgery" and by the other Court to be "clumsy," I think it was important for the Court below, as it would be for the trying Court, if the sanction is not revoked, to inspect the document and to determine by inspection of the entries as to whether they were tampered with or forged. It is conceded that the sanction granted will become anfractuous and the prosecution cannot at all proceed without the production of the document in the trying Court. There is to nay mind absolutely no chance of getting the document at all. The document has been taken away by some one whose identity before me has not been disclosed. If that person is under the influence of the petitioner, it is certain that the document will not be produced at all whatever may be the result of the disobedience of the order of the Court. The petitioner himself has refused to produce it when called upon to do so by the Subordinate Judge and is not likely to obey the order of the trying Court when called upon to do so.

The petitioner showed cause by a petition, which also is not dated but from the seal of the Court it appears to be 21st December 1916. I cannot refrain from remarking that it appears to be the practice of the Purnea Court not to insist upon accepting petitions and documents and papers etc., in Courts duly signed and dated by the parties filing them. Of course this does not affect the merits of the case but has an important bearing as regards the conduct of the cases in the District of Purnea. The petition does not disclose where the document is and who took it away from the Court.

There is, therefore, as I have said before, not the faintest chance of having the document before the Court. The prosecution, therefore, cannot at all proceed.

It is strange that such an important document, in respect of which the Subordinate Judge and the District Judge had given their decisive opinion that it was a forgery, should have been allowed to be taken back from the record room. This again discloses the state of affairs that prevails in the Purnea Court. The sanction should, therefore, be withheld on that ground alone.

Apart from this there is another important ground which by itself was sufficient to refuse the sanction. The application in this case was made about 21 months after the order of the Subordinate Judge and six months after the order of the District Judge in appeal. It is contended that the opposite party awaited the result of the appeal in the High Court, if any. References have been made to certain cases to show that it is desirable to await the result of the appeal and that an application made after the disposal of the appeal should not be considered to have been unduly delayed. But in all those oases, if I remember rightly the application was made soon after the disposal of the case, but the order of the Court, was suspended till after the disposal of the appeal.

There may be some cases where the application might also be allowed to be made after the disposal of the appeal, but it has to be judged from the circumstances of each case whether the delay was undue or was unreasonable. In the present case the delay after the disposal of the appeal by the District Judge is unexplained. The decree was passed on the 23rd December 1915 and there was no reason why the opposite party should have waited three months from the date of the decree of the District, Judge. The delay is, therefore, in this particular case unexplained and is inordinate, considering that the delay has enabled the document to be taken way from Court. I do not see any reason also why there was delay in the disposal of the application by the Subordinate Judge. It look one year to dispose of a miscellaneous appeal in which no evidence was taken and in which the judgment itself was a short one. The appeal was disposed on the 16th June 1917. The opposite party may not be responsible for this delay, but still whoever may be responsible, there has been a delay in the disposal of a charge pending against the petitioner and hanging over his head.

It is now about 4 years from the time that this document was filed in Court and the case disposed of by the Subordinate Judge. It is not, therefore, desirable on this ground also to allow the sanction to be used by the opposite party in order to harass the petitioner.

The third ground is equally important and is in favour of the petitioner. The Court that decided that the entry in the Bahi was a forgery did not at all consider the evidence to be of such a character as to justify his prosecution u/s 467 of the Code of Criminal Procedure. There were two documents filed in support of the claim of the plaintiff, the mortgage bond which was the basis of the suit, and the Bahi, to prove that consideration money was paid to the executant of the bond. The first Court held that the bond was genuine and was admitted by the Musammat before the Registrar, but that the Bahi was concocted and forged for the purpose of affording evidence to prove the passing of the consideration. I mean the District Judge in appeal suspected that the bond also was not executed by the Musammat, but did not clearly find that it was a forgery. The Court which tried the case or the appeal, would have been in a better position to judge whether the ends of justice required that the petitioner should be prosecuted for using the forged document. We do not know what would have been the opinion of those Courts if the application for sanction was heard by them. The delay has, therefore, deprived the petitioner of the opinion of the Courts which tried the case on the merits. It is clear that the opposite party, in order to serve its own ends and out of grudge and malice, wants to take this vindictive action against the petitioner. Under all these circumstances no sanction should be allowed to nerve such a purpose and the order is liable to be set aside on this ground also.

The learned Vakil for the opposite party contested the jurisdiction of this Court to interfere with the order made by the District Judge or the Subordinate Judge. True, the order in question was made in connection with the civil suit decided by the Subordinate Judge and as such the application in respect of the sanction would be heard by the civil side of this Court and not by the criminal side. But this Court is hearing this application on its civil side. The learned Vakil further urged that this Court can only deal with the order of the District Judge u/s 115 of the CPC and that the order should only be set aside if it was without any jurisdiction or was exercised with illegality or material irregularity in terms of that sanction, I do not at all feel inclined to agree with this view. The power is exercised by this Court under clause (6) of section 195 of the Code of Criminal Procedure to grant or revoke sanction refused or granted by inferior Courts. The High Court is the Appellate Court from their decision in civil suits and as such is the superior Court under clause 7 of section 195, and is, therefore, competent to deal with their order granting or revoking sanction under clause 6 of the sanction. The Madras and the Calcutta High Courts have taken the above views, vide Muthuswami Mudali v. Veeni Chetti 30 M 382; 2 M.L.T. 239; 17 M.L.J. 266; 6 Cr.L.J. 162 (F.B.), Girija Sankar Roy v. Binode Sheikh 5 C.L.J. 222; 5 Cr.L.J. 188 and Habibur Rahman Vs. Munshi Khodabux . The view taken in Hamijuddi Mondol Vs. Damodar Ghose quoted by the teamed Vakil for the opposite party was not followed in the later rulings referred to above of the same Court. Personally I have no doubt in my mind that this Court has jurisdiction to deal with the order of the inferior Courts on merits under clause 6 of section 195 and not only u/s 115, Civil Procedure Code, and that the view taken in the case by the learned Judge who decided the case of Hamijuddi Mondol Vs. Damodar Ghose was not the correct view, and in fact did not recommend itself to the very learned Judge who subsequently in Girija Sankar Roy v. Binode Sheikh 5 C.L.J. 222; 5 Cr.L.J. 188 distinguished that ruling.

The order of the District Judge in this case confirmed the sanction given by the Subordinate Judge and comes well within the aforesaid order.

The result is that the sanction granted by the Subordinate Judge and confirmed by the District Judge is set aside. The proceedings that may have been instituted on the basis of this sanction are hereby revoked and quashed.