Lala Mathur Prasad vs Pitambar Singh

Chatterji, J.—This application in revision is directed against a complaint made u/s 476, Criminal P. C, by the Second Subordinate Judge, Gaya, against the petitioner for his prosecution under Sections 465 and 471, 5. P. C. The petitioner is a pleader practising at Gaya. One of his clients Pitambar Singh deposited through him on different dates two sums, each of Rs. 515 under s, 83, T. P. Act. Two miscellaneous cases u/s 83 were thereupon started. In the case relating to the first deposit, the mortgagee appeared and filed objection, and the case was disposed of. In the other ease, the mortgagee filed no objection. Subsequently, on the strength of two compromise petitions purporting to have been filed on behalf of Pitambar Singh and the mortgagee, the petitioner withdrew the said sums. These compromise petitions which were filed on different dates were signed on behalf of Pitambar Singh by the petitioner and on behalf of the mortgagee, in the case of the first deposit by his pleader who had previously filed the objection on his behalf and in the case of the second deposit by another pleader who filed a vakalatnama purporting to be signed by him. The case of Pitambar Singh is that he never instructed the petitioner to file any compromise petition or to withdraw the amounts and that the compromise petitions were forged by the petitioner. It is said that the signature of the mortgagee''s pleader on the first petition was forged by the petitioner and that the other petition was signed by another pleader on behalf of the mortgagee on the petitioner falsely identifying before that pleader a stranger as the mortgagee.

On the application of Pitambar Singh an inquiry u/s 476, Criminal P. C, was held by the learned Subordinate Judge. He found that a prima facie case under Sections 465 and 471, Penal Code was made out against the petitioner. He accordingly made a complaint. On appeal the Subordinate Judge''s order has been upheld by the learned Sessions Judge. Hence, this application in revision. It has been argued by Mr. Jaleshwar Prasad on behalf of the petitioner that the petitioner not being a party to any proceeding in Court, the offences complained of do not come u/s 195(1)(c), Criminal P. C, and therefore the learned Subordinate Judge had no jurisdiction to make a complaint u/s 476. Section 476 provides for an inquiry by a Court into "any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (e), which appears to have been oommitted in or in relation to a proceeding in that Court." In the present case the relevant clause of Section 195, Sub-section (1), is Clause (c) which says:

No Court shall take cognizance of any offence described in Section 463 or punishable u/s 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have 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 on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.

As Sections 195 and 476 now stand after the amendment of 1923, it is clear that they must be read together. Section 195, Sub-section (1) lays down a bar to the cognizance of certain offences. Section 476 lays down the procedure as to how the bar imposed by Section 195, Sub-section (1), Cls. (b) and (c), is to be removed. Section 476 operates only to remove the bar created by Section 195, Sub-section (1), Cls. (b) and (c). Where, therefore, there is no bar created by these clauses of Section 195, Sub-section (1), Section 476 has no operation. Nor does Section 476, as it now stands, apply to offences referred to in Section 195, Sub-section (1), Clause (a), with regard to which the complaint is to be by the public servant concerned and not by a Court. From Section 195, Sub-section (1), Clause (c), it is clear that it bars the cognizance of the offence of forgery and certain connected offences, when the offence is committed by a party to any proceeding in Court. It creates no bar if such offence is committed by any person who is not a party to any proceeding in ''Court. Consequently in such case Section 476 has no application. The view I take is supported by the decisions in Provat Ranjan Barat and Others Vs. Uma Sankar Chatterjee and Others, , Emperor Vs. Raja Kushal Pal Singh, and Tulsi Ammal v. Danalakshmi A. I. R. 1934 Mad. 316. All these cases refer to the offence of forgery. In the Calcutta case, Rankin C. J. with whom C. C. Ghose J. agreed, said:

It is clear to my mind that Section 476 can only apply to cases, where, by reason of a provision in the Code, the Magistrate requires a complaint by a Court, in order that he may take cognizance of the charge.

In the Allahahad case Mukherji J., who delivered the judgment of the Special Bench, said:

If, then, it be the case that Section 195 lays down the bar and Section 476 lays down the method for removing the bar, I take it, we must read the two sections together.

In the Madras case it was held

that the language of Section 195 must be read in conjunction with the terms of Section 476, so that it is only in the case of offences committed by a party to the proceeding that the Court should take action under the latter section.

No doubt a contrary view was taken by this Court in Rajkumar Singh v. Emperor A. I. R. 1916 Pat. 97, Abdul Sattar v. Emperor AIR 1918 Pat. 251 and Bachu Behari Lal Vs. Emperor, , but these decisions were all prior to the amendment of Sections 195 and 476 in 1923. In the first case Rajkumar Singh v. Emperor A. I. R. 1916 Pat. 97 decided in 1916 by Chamier C. J. and Sharfuddin J., the facts were these. One of the petitioners had instituted a suit in the Small Cause Court at Bilaspur in the Central Provinces against a resident of Arrah, and obtained an ex parte decree. The petitioner got the decree transferred to the Court of the Subordinate Judge at Arrah for execution. The judgment-debtor then brought a suit in the Court of the Munsif at Arrah to set aside the decree of the Bilaspur Court on the ground of fraud and obtained a decree. The petitioner appealed to the District Judge of Arrah who confirmed the Munsif''s decision and directed the prosecution of the three petitioners under Sections 209 and 210, Penal Code, as he found that they had combined to bring a false suit in the Bilaspur Court and had fraudulently obtained a decree in the suit. In the High Court the contention was raised that the District Judge of Arrah had no jurisdiction u/s 476 to direct the prosecution of the petitioners, as the offences were committed, if at all, in relation to the proceeding in the Bilaspur Court, and reading Section 476 with Section 195 Sub-section (1) Clause (b), it was only that Court which could direct prosecution. This contention was overruled in view of the wording of Section 476, as it then stood, on the ground that the offences were brought to the notice of the District Judge of Arrah during the hearing of the appeal, which was a judicial proceeding. Section 476, as it then stood, provided for inquiry by a Court into

any offence referred to in Section 195 and committed before it or brought under its notice in the course of a judicial proceeding.

With reference to these words Sharfuddin J. said:

The most important element in Section 476 is that the offences referred to in Section 195 should either be committed before the prosecuting Court or brought under its notice in the course of a judicial proceeding when that Court may proceed as provided by Section 476. It is clear, therefore, that if an offence has been com-miteed, no matter where, and if in the course of a judicial proceeding it is brought to the notice of a Court that such an offence has been committed, that Court has jurisdiction to proceed u/s 476.

Thus, the decision turned on the words "brought under its notice in the course of a judicial proceeding" in Section 476. These words have been omitted from the section by the amendment of 1923. It is also to be noticed that under the old section the Court could inquire into any offence referred to in Section 195, whereas under the new section the inquiry is limited to offences referred to in Section 195, Sub-section (1), Clause (b) or Clause (c). In other words, under the old section the Court had power to inquire into the offences referred to in Section 195, Sub-section (1), Clause (a) though under this latter section cognizance of these offences required the complaint of the public servant concerned and not of the Court. It is apparently for these reasons that in the above case Sharfuddin J. was led to observe:

I desire to observe that it appears to me from the wording of Section 476, Criminal P. C, that it is a self-contained section and that the reference made to Section 195 of the Code is only for the purpose of avoiding the enumeration of the sections mentioned in Section 195.

It seems to me that the reasons for this observation, whatever they might be, disappeared with the amendment of Sections 195 and 476 in 1923. As these sections now stand, it is, to my mind, not permissible to read the latter section independently of the former.

If Sections 195 and 476, as they now stand, were to be regarded as independent of each" other, Section 195 itself would have to be regarded as authorising the Court to file a complaint in respect of the offences referred to in. Sub-section 1 Clauses (b) and (c). In other words, Section 195 would have to be regarded as not only laying down the bar but also laying down the procedure to be adopted for removing the bar, so-far as the offences referred to in Sub-section l Clauses (b) and (c) are concerned, which is not justified by the language of the section. But assuming that Section 195 also lays down the procedure for removing the bar in respect of the offences referred to in Sub-section (1) cls. (b) and (c), what would be the necessity of Section 476? Then Section 476 provides for a judicial inquiry before a complaint can be filed, and an order passed under this section is subject to appeal. It is difficult to understand why the Legislature would provide for such a judicial inquiry in cases where there is no bar to the cognizance of any offence which requires to be removed by complaint by a Court. The truth seems to be that Section 195 merely creates a bar, whereas Section 476 lays down the method for removing that bar. So far as the offences referred to in Section 195 Sub-section (1), Clause (a), are concerned, the complaint is not to be made by a Court but by the public servant concerned, and therefore no judicial inquiry by Court is necessary before a complaint is filed in respect of such offences. In this connexion the following observations of Murphy J. in Balgounda Ramgaunda v. Emperor A. I. R. 1931 Bom. 305 will be pertinent:

Since the 1923 amendment the granting of sanction to a private prosecutor is abolished and Sections 195 and 476 are closer oonneoted so that the only proceeding now open is one u/s 476. That section is now practically one regulating the procedure to be followed in all cases falling u/s 195. But to my mind this was clearly not so before the amendment of these sections. Sections 195 and 476 provided alternative procedure and the cases falling u/s 476 were defined by a reference to Section 195 generally.

In the case in Abdul Sattar v. Emperor A. I. R. 1918 Pat. 251, which was decided by Mullick and Thornhill JJ., it was held that Section 476, Criminal P. C, confers jurisdictidn upon an executing Court to order the prosecution of a person for forgery, even though not a party to the execution proceedings, if the offence is brought to the notice of the Court in the course of the proceedings. Mullick J., who delivered the judgment, relying on the earlier case in Rajkumar Singh v. Emperor A. I. R. 1916 Pat. 97, said:

It was decided in that case that Section 476, Criminal P. C, is a self-contained section and that the reference to Section 193, Criminal P. C, in this section is only made for the sake of brevity and refers not to the conditions enumerated in Section 195, Criminal Procedure Code ; but merely to offences enumerated in that section.

I have already shown that this reasoning cannot apply to the present Sections 195 and 476. IN the next case, Bachu Behari Lal Vs. Emperor, , which was decided by Atkinson J., sitting alone, his Lordship, following the earlier Division Bench decisions in Rajkumar Singh v. Emperor A. I. R. 1916 Pat. 97 and Abdul Sattar v. Emperor AIR 1918 Pat. 251, held that the Sessions Judge in that case was entitled u/s 476 to direct the prosecution of the petitioner, for forgery, irrespective of the fact that he was not a party to the original proceedings. The decision of this Court in Rajkumar Singh v. Emperor A. I. R. 1916 Pat. 97 was followed by the Nagpur High Court in Abdul Rahim Khan v. Mt. Pusia Bai A. I. R. 1939 Nag. 85, decided by Stone C. J. and Clarke J., though that was a case governed by the present Sections 195 and 476. Their Lordships said:

It seems clear therefore to us that the High Court of Patna is right in thinking that reference in Section 476 to Section 195 was merely a compendious method of avoiding enumeration of the sections of the Penal Code which have been enumerated in Section 195(1)(b) and (c).

With the greatest respect, I do not think the present Section 476 can be read apart from Section 195. The chief reason which appears to have influenced their Lordships'' decision was that if Sections 195 and 476 were to be read together inconvenient consequences would follow, as pointed out by Addison J. in Emperor v. Balmukand AIR 1928 Lah. 510:

Firstly, since it is desirable that where a party to a proceeding in a Court has committed an offence and the offence has been abetted by persons who are not parties, all the persons concerned in the offence should be tried and not only those who are parties to the proceedings in which the offence was committed ; secondly, since it would be possible for a private complainant to make a complaint against the persons who are not parties while the Court could make a complaint against the party, an anomalous state of affairs would arise, in that two different cases about the same transaction would have to be heard at the same time.

But such inconvenient consequences cannot follow, if the view expressed by Beaumont C. J., in the case in 55 Bom. 461. already cited, be adopted. His Lordship said that:

If once it is ascertained in judicial proceedings that there is an offence described in Section 463, Penal Code, or punishable under Sections 471, 475 or Section 476 of that Code, and such offence appears to have been committed by a party to the proceedings then u/s 476 the Court can inquire into the matter, and if it comes to the conclusion that other persons also, for example, witnesses, are guilty of the offence, I think it can refer the whole case to a Magistrate for an inquiry and committal.

In the Nagpur case, their Lordships also relied on the following statement of Murphy J. in the said Bombay case:

In other words, in my view by the words offences referred to'' the section meant what it said, and not ofienoes covered by the section and committed in the qualifying circumstances mentioned in Section 195 (c), that is by a party to the proceeding.

But after making this statement Murphy J. continued as follows:

This is the view of the section laid down by this Court in In re Devji Bhavani 18 Bom. 581, this being a ruling of a Division Bench whioh is binding on us... It is not necessary now to decide whether or not this view is still correct since the amendment of the two sections, for the order in this case was made before the amendment and the procedure then in force governs all the subsequent stages of the proceedings.

Therefore, the view expressed by Murphy J. on which reliance was placed by their Lordships of the Nagpur High Court, cannot be regarded as an authority applicable to the present Sections 195 and 476. Another reason given by their Lordships in the Nagpur case is that if the enumeration of offences in Section 195(1)(c) is meant to be qualified for the purposes of Section 476 by the words "when such offence is alleged to have been committed by a party to any proceeding in any Court," it must also be qualified by the next clause "in respect of a document produced or given in evidence in such proceeding," and if all these qualifying words be meant to be read with the sections of the Penal Code for the purpose of interpreting Section 476, then it was unnecessary to add in Section 476 the words "which appears to have been committed in or in relation to a proceeding in that Court." To accept this reasoning, let us omit these unnecessary words and read Section 476 with the aforesaid qualifying words in Section 195(1)(c). Section 476 will then read thus, confining ourselves to the offences referred to in Section 195(1)(c) only:

When any ... Court is.... of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1)... . Clause (c), when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, such Court may .... make a complaint etc. etc.

The obvious effect of this reading will be that the Court may inquire into any offence referred to in Section 195(1)(c), even where such offence may have been committed in a proceeding in some other Court. This was the effect of the old Section 476, and it was to eliminate that result that the section was amended in 1923 by substituting the words "which ap-pears to have been committed in or in relation to a proceeding in that Court," which are supposed to be unnecessary. The purpose of introducing these word: was to make it clear that the inquiry u/s 476 must be made by the very Court in which the offences referred to in Section 195 (1), Clause (b) or Clause (c), are committed. The same reasoning applies to the offences referred to in Section 195(1)(b) which are qualified by the words "when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court." Similar words also occur in Section 476 with this important difference that the words "that Court" take the place of "any Court." If the distinction between "any Court" and "that Court" be kept in view, the insertion of the words "which appears to have been committed in or in relation to a proceeding in that Court" in Section 476 is. easily understandable. These words, therefore, do not in any way militate against the view I have taken. The case in 1 Pat. L. J. 298 was also followed by the Lahore High Court in Emperor v. Balmukand AIR 1928 Lah. 510, already cited. Referring to this Patna case, Addison J. sitting with Coldstream J. said:

It was said that Section 476 was self-contained section and the reference made to Section 195 was only for the purpose of avoiding the enumeration of the sections mentioned in Section 195. It follows from this that the Court could proceed against persons not parties to the proceedings before it.

But for reasons already given, the present Section 476 cannot be regarded as a self-contained section, independent of Section 195. On the facts, however, this Lahore case is distinguishable. There the complaint u/s 476, Criminal P. C, was made in respect of an offence of forgery not only against a party to the proceeding but also against another person who was not a party to the proceeding. As the offence was alleged to have been committed by a party to the proceeding, the Court was competent to make an inquiry u/s 476, and if in the course of the inquiry it was found that other persons also were guilty of the offence, the Court could make a com. plaint against them as well, as indicated by Beaumont C. J., in the case in 55 Bom. 461 But where the offence of forgery is not alleged to have been committed by a party to the proceeding, there is no occasion for an inquiry u/s 476 and consequently the Court is not competent to make a complaint under that section. Addison J., however, observed:

Every person inoluding the presiding officer of a Court has power to make a complaint as a rule. It is only when that general power is taken away by statute that a complaint becomes incompetent unless made by the only authority allowed to do so. There is nothing in Section 476 to the effect that the presiding officer of a Court cannot make a complaint against a person who is not a party, and it seems to me that the general power of the presiding officer is not taken away by implication because he is the only person who can make a complaint against a party in certain circumstances.

These observations may be correct, so far as the facts of the case go. But they do not imply that even where the Court has no power to make an inquiry u/s 476, its presiding officer may still make a complaint under that section. In the present case, the petitioner who is a pleader cannot be said to be a party to the proceedings, u/s 83, T. P. Act. The Court, therefore, was not competent to start a proceeding against him u/s 476, Criminal P. C, and inquire into the alleged offence of forgery. Nor was it competent to make a complaint against him in respect of offences under Sections 465 and 471,. Penal Code. The complaint must accordingly be withdrawn. In this view it is unnecessary to go into the merits of the case. In the result, I would allow the application and direct that the complaint made by the Subordinate Judge be withdrawn.

Das, J.

I have had the advantage of reading the judgment prepared by my learned brother, and have come to the same conclusion. I was at one time inclined to think that in view of the conflict of opinion between the various-High Courts and especially in view of the two Division Bench decisions of this Court in Rajkumar Singh v. Emperor A. I. R. 1916 Pat. 97 and Bachu Behari Lal Vs. Emperor, , it might be necessary to ask for the constitution of a larger Bench for the decision of the question involved in this case. On a further careful consideration, however, I have come to the conclusion that the amendments made in 1923 have so altered Sections 195 and 476, Criminal P. C, that they must now be read together, and if they are so read, the only reasonable conclusion is that while Section 195 (1), cls. (b) and (c), bars the cognizance of certain offences except on a complaint by the Court concerned, Section 476 lays down the procedure for removing that bar. If that is the correct view of the amended sections, as I hold it to be, then the two decisions of this Court referred to above need give rise to no difficulty they were both decided prior to the amendments made in 1928, and the case in 1 Pat. L. J. 2984 was decided mainly on the ground that Section 476 (as it stood before the amendment) was a self-contained section and the reference made to Section 195 of the Code was only for the purpose of avoiding the enumeration of the sections mentioned therein. That the amendments made in 1928 have materially altered the position and brought thetwo sections much closer together has been accepted in a majority of cases, though in 55 Bom. 4617 Beaumont C. J., had observed:

I myself think, as a matter of construction, that both under the old Code and the new Code, Section 476 is a corollary of Section 195.

In the same case Murphy J." however, observed as follows:

Since the 1923 amendments the granting of sanction to a private prosecutor is abolished and Sections 195 and 476 are closer connected so that the only proceeding now open is one u/s 476. That section is now practically one regulating the procedure to be followed in all cases falling u/s 195.

As pointed out by my learned brother, the observations of Beaumont C. J., have reference to the further view expressed by his Lordship, namely,

if the offence appears to have been committed by a party to the proceedings, then u/s 476 the Court can inquire into the matter, and if it comes to the conclusion that other persons also are guilty of the offence, it can refer the whole case to a Magistrate.

It is, therefore, necessary to examine and see how the amendments made in 1928 bring the two sections together and make them supplementary to each other, so as to lead to the conclusion that Section 476 and Clause (c) of Section 195 (1) -the clause with which we are concerned in this case-have the same scope. As observed in Dwarka Prasad Vs. Makund Sarup , prior to the amendments, Section 195 and Section 476 might be said to refer to two different things. Section 195 required a sanction or complaint by the Court for the prosecution of certain offences; Section 476 gave the Court a quite independent power to direct prosecution of its own authority and send the case for trial to the nearest Magistrate. It is important to note that prior to the amendments of 1923, Section 476 gave a Court jurisdiction to enquire into an offence, "brought under its notice in the course of a judicial proceeding;" thus in Rajkumar Singh v. Emperor A. I. R. 1916 Pat. 97 a Court in Arrah enquired into an offence committed in relation to a proceeding in Bilaspur. The section (Section 476) did not then refer to a complaint: it merely said: "send the case for enquiry or trial to the nearest Magistrate." Section 476 also embraced then the offences referred to in Clause (a) of Section 195 (1), though that clause did not contemplate any complaint by a Court as such. It would thus appear that the two sections did not have the same or co-extensive scope, and Section 476 was wider in scope than Section 195. What then is the position after the amendments in 1923 ? Both the sanction by a Court and the direct order by a Court directing a prosecution are done away with, and the procedure in all cases is one of complaint by the Court, except in cases mentioned in Clause (a) of Section 195 (1) for which reason Clause (a) is not now mentioned in Section 476. The position, therefore, comes to this: Section 195 (1), cls. (b) and (c), describes the offences in respect of which a complaint by the Court is necessary, and Section 476 prescribes the procedure under which that complaint is to be made. It is to be noted that Section 476, after the amendment, requires the Court "to make a complaint in writing," exactly what is required by cls. (b) and (c) of Section 195 (1) for taking cognisance, instead of merely "sending the case for enquiry or trial to the nearest Magistrate," as before the amendment. It would follow from what has been stated above that in cases where there is no bar in the shape of a prerequisite complaint by a Court, there can be no application of Section 476.

As to the argument that the presiding officer of a Court has the general power to make a complaint, it follows from Sections 4 (g) and 190 of the Code that any person can set the law in motion by a complaint. The distinction between a Court complaining as a Court, and a presiding officer complaining as a public servant or a common informer has, however, been recognised in the Code: see Clause (aa) of Section 200 and the proviso to Section 252 (1) of the Code. In Provat Ranjan Barat and Others Vs. Uma Sankar Chatterjee and Others, , Rankin C. J., has observed as follows:

Of course, if the learned Judge chooses to make a complaint to a Magistrate independently altogether of Section 195 or Section 476, Criminal P. C, he is exercising a right or privilege which belongs to any citizen and his action in such a case is in no way open to review by a Court of appeal, because it is not a judicial act at all. I do not say that it is not a complaint made by a Court within the meaning of Section 200, Criminal P. C, that is another question. The directing of a complaint u/s 476 is clearly a judicial act and . the order made in this case purports to have been made as a judicial order under that section.

I respectfully agree with those observations.-. In this case also, the order purports to have been made as a judicial order u/s 476. If Section 476 has no application, the order cannot stand as an order under that section because the Court would have no jurisdiction to make a complaint as a Court in a case where Section 476 has no application. My learned brother has dealt with other aspects of the question, such as, the possible inconveniences which may result from the view accepted by us and the use of the words "in or in relation to a proceeding in that Court" occurring in Section 476. In Provat Ranjan Barat and Others Vs. Uma Sankar Chatterjee and Others, referred to above, it has been observed that the words "in or in relation to a proceeding in that Court" are merely to identify the Court itself, which is to take action u/s 476. The words do not in any way give any extended meaning to Section 476, Criminal P. C, rather they restrict the enquiry to an offence referred to in Section 195 (1), cls. (b) or (c), which appears to have been committed in or in relation to a proceeding in that Court and prevents a Court, say in Arrah, from enquiring into an offence committed in relation to a proceeding in a different Court, say in Bilaspur. In other words, the two sections are brought together and given the same scope. As has been pointed out in Provat Ranjan Barat and Others Vs. Uma Sankar Chatterjee and Others, if Section 476 is wider in scope ard applies in cases where the bar under Clause (c) of Section 195 (1) does not exist, then an anainalous position may arise in the following way. The Court may refuse to make a complaint on an enquiry u/s 476; but there being no bar to a private complaint, a private person may make a complaint in the case on which the Magistrate may have to take action. For all these reasons, the only reasonable conclusion is that Section 476 applies in cases where there is a bar under cls. (b) and (c) of Section 195 (1). The section does not apply in cases where there is no such bar. The bar in Clause (e) of Section 195 (1) is in respect of offences mentioned therein, alleged to have been committed by a party to any proceeding in any Court. There is no bar in respect of a person who is not a party to any proceeding. Such a person does not come within the purview of Section 476 in respect of offences mentioned in Clause (c) of Section 195 (1). The petitioner in this case was not a party to any proceeding, and could not come within the purview of Section 476.

In the present case, it is not quite necessary to decide if a complaint can be made against persons, other than parties to any proceeding, when once the Court has jurisdiction to make an enquiry in respect of a person who is a party to a proceeding. There is only one person, against whom a complaint has been made in this case, and he was not a party to the proceeding.