Lukmanji Kamruddin vs Valibhai Karimbhai

Murphy, J.—The petitioner seeks to have revised an order of the learned First Class Magistrate, Godhra, made on October 23, 1933, directing that process and a bailable warrant should issue against him, on the complaint of one Bohra Valibhai Karimbhai, of various offences under Sections 406, 468 and 477A of the Indian Penal Code.

The complainant''s actual accusation against the applicant was, that applicant, being the receiver appointed by the Court in suit No. 6 of 1930 of the First Class Court at Nadiad, jointly with the Nazir of that Court, had committed these offences by falsely charging the cost of a second class ticket for the purpose of his journeys as receiver, whereas in fact he had travelled in the third class, and thus defrauded the estate, of which he was the receiver, of the difference between the cost of the tickets of those two classes.

The main objection taken before the learned First Class Magistrate was that before cognizance could be taken the sanction of the Court was necessary. The Magistrate held against the petitioner''s contention, and on appeal to the Sessions Judge that Judge also held against him.

Petitioner has accordingly come to this Court for revision of these orders. Mr. Talyarkhan''s main contention was that there is a rule to be found stated in Halsbury''s Laws of England, Vol. XXIV, at p. 388, to the following effect:

Any threatened proceedings against a receiver in respect of trespass or wrongful seizure of goods instituted without the leave of the court will be restrained.

The proceedings contemplated in that section apply, we think, to civil proceedings and not to a complaint of an offence, as in the present case. Mr. Talyarkhan has also relied on the ruling in Santok Chand v. Emperor I.L.R (1918) Cal. 432. That was a case of a receiver and the rule in Halsbury appears to have been applied. But the case has been dissented from by this Court in In Re: Khimchand Narottam Bhavsar, , where the law on the point has been discussed. Finally, we have considered the sections bearing on the point in the Criminal Procedure Code. By Section 190 the Court can take cognizance of any offence upon receiving a complaint of facts which constitutes such offence. The prohibitions to taking cognizance are contained in Section 195 onwards. Section 195 clearly does not apply, for under Clause (c), which would be the only part having any application, the offence must be alleged to have been committed by a party to the proceedings, and a receiver clearly is not such a party. The only other section possibly covering the case is Section 197 provided that a receiver is a public servant within the meaning of that definition. But Section 197 only applies to a selected class of public servants, i. e., those who are not removable from their offices save by or with the sanction of a Local Government or some higher authority, and a receiver clearly is not in that position.

It is certain, therefore, that there is no bar, such as the need of the leave of the Court which appointed him, or a complaint of a Court in which the offence is alleged to have been committed, to the prosecution of the applicant, and that the Courts below have taken a proper view of the law on this point.

As the case has not so far been taken up we express no opinion on the merits. We accordingly discharge the rule.