Perianna Muthirian vs M. Vengu Aiyar and Others

Curgenven, J.—These are respectively a Criminal Revision Petition and a Criminal Appeal arising out of certain proceedings (M.C. No. 24

of 1926) u/s 145, Criminal Procedure Code, taken before the Sub-divisional Magistrate of Musiri. The petitioner and appellant here, Perianna

Muthirian, alleged possession of the Immovable property in dispute as lessee of certain persons holding it as trust property. His possession was

challenged by the agents and lessee of one P. M. A. Muthia Chetti, who had purchased the land at a Court sale. For the purpose of these

proceedings it is unnecessary to enter more fully into the circumstances leading up to the possession case. The petitioner impleaded as counter-

petitioners in that case eight persons, of whom only the first two need be here mentioned, Narayanaswami Aiyar described as an agent of the

Chetti, and Kothandapani Nadan, the Chetti''s lessee. The petitioner''s case was that on 5th June, 1926, Narayanaswami Aiyar came to the land

with a body of men and disturbed the possession which he had enjoyed for some time past. The case for the counter-petitioner was that the Chetti

had obtained possession on 17th April, that Kothandapani Nadan had on 24th May signed an agreement ''to take a lease of the lands and had on

that day entered into possession; and that on 4th June a formal lease-deed had been executed. We are concerned here with the agreement to

lease, or Varthamanam (Ex. VIII) which the petitioner denounces as a forgery. It was got up, according to him, after the police had made their

local inquiry on 10th June, and because the counter-petitioners'' party had to account for seedlings obviously sown before the date of the lease-

deed. This document purports to have been executed by Kothandapani Nadan to Narayanaswami Aiyar, to have been written and attested by one

Ratnam Pillai and to have been attested by one Alagiri Rajah. The petitioner asserts that besides these participants, two other persons conspired to

fabricate it, Vengu Aiyar, who is another of the Chetti''s agents, and N. Ramaswami Aiyar, the High Court Vakil, who conducted the counter-

petitioners'' case. On 16th April, 1927, while the possession case was still going on, the petitioner filed a complaint before the District Magistrate

of Trichinopoly against Vengu Aiyar and N. Ramaswami Aiyar of abetment of forgery. The District Magistrate transferred the complaint to the

Sub-divisional Magistrate of Musiri, who decided to dispose of the possession case before proceeding with it. As soon as that was done he took a

sworn statement from the complainant and issued process. In response, the two accused persons filed what they term a ""statement of objection,

adducing grounds why they should be discharged without further inquiry; and the Sub-divisional Magistrate accepting those grounds, or some of

them, in an order, dated 26th September, 1927, discharged the accused u/s 253 (2), Criminal Procedure Code. An application to the Court of

Session, Trichinopoly, to revise that order was unsuccessful, and a further attempt is now being made here to upset it by means of the revision

petition under disposal. The Criminal Appeal is preferred against an order of the Sessions Judge declining to proceed against Narayanaswami

Aiyar and the two counter-petitioners to the revision petition u/s 476-A, Criminal Procedure Code.

Dealing first with the Criminal Revision Petition, Mr. Ethiraj for the petitioner concedes, as is indeed indisputable, that if at any stage the Court

found a legal bar to the prosecution of the accused it was acting rightly in discharging them. The burden of establishing such a bar rests upon the

counter-petitioner''s, and it is argued that it is created in two separate ways by the terms of Section 195, Criminal Procedure Code--under Clause

(b) of Sub-section (1) and also under Clause (c).

Under Clause (b) no Court shall take cognizance of any offence punishable under certain sections of the Penal Code, including Section 193,

when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such

Court or of some other Court to which such Court is subordinate.

The contention is that although the complaint alleged an offence of abetment of forgery, and although the circumstances adduced in support of

that allegation might, if proved, substantiate such an offence, yet they would also substantiate nothing more and nothing less than the offence of

abetting the fabrication of false evidence in relation to the proceedings u/s 145, Criminal Procedure Code, before the Sub-divisional Magistrate, so

that under Clause (b) the only complaint upon which a criminal case could be founded would be that of the Sub-divisional Magistrate himself, or of

his superior Court.

That the terms of the petitioner''s complaint do bear the construction sought to be placed upon it is clear, I think, from its general tenor and in

particular from the opening sentence of paragraph 7, which runs as follows:

The two accused conspired with the said Narayanaswami Aiyar to forge Ex. VIII and forged it with the deliberate object of using it in the above

proceedings in the Court of the 1st Class Magistrate, Musiri, and other proceedings that might follow; and used it on 18th December, 1926 before

the said Court, when Kothandapani Nadan was examined.

This is a clear assertion that the document was forged for the express purpose of affording evidence in the possession case--that that was the

immediate object of the two accused among others. It is evident, therefore, that the offence complained of was one of the class named in Clause

(b). Not only so, but the act imputed to the accused did not comprise any elements over and above those which are needed in a case where, as

here, the fabricated evidence takes the shape of a document--to satisfy the definition of fabricating false evidence contained in Section 192, Indian

Penal Code. The relevant portions of that definition run thus:

Whoever...makes any document containing a false statement intending that such...false statement may appear in evidence in a judicial

proceeding...and that such...false statement , so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon

the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding is said to fabricate false evidence.

Whether or not the preparation of such a document with such an intention necessarily and invariably amounts also to the offence of forgery, I

think that this result follows in all ordinary cases; and the consequence of accepting the petitioner''s contention, that although in such a case he is

barred from prosecuting for fabricating false evidence he is still at liberty to prosecute for forgery, means that the provisions of Section 195 (1) (b),

Criminal Procedure Code, may be evaded by this simple expedient.

It has been urged that, notwithstanding this obvious objection, there is authority in support of the petitioner''s claim. Three cases involving

offences for the trial of which sanction is needed have been cited. I may dismiss Tarsu Beg v. Muhammad Yar Khan (1923) 21 A.L.J. 915 for

reasons which a perusal of it will make obvious. In Krishna Filial v. Krishna Konar ILR (1907) M. 43 : 17 M.L.J. 559 the circumstances which

Miller, J., sitting alone, had to deal with were that an amin, accompanied by the decree-holder''s agent, went to execute the decree and these

persons were obstructed and assaulted. Sanction to prosecute for an offence u/s 186, Indian Penal Code, was applied for and refused, whereupon

the agent presented a complaint under Sections 323 and 355, Indian Penal Code. The learned Judge held that since those offences could be

separately charged they could be tried without sanction; but it is to be observed that they, and especially the latter, were not necessarily included

within the offence in respect of which sanction was necessary. To put an extreme instance, if the agent or the amin had been murdered in the

course of the obstruction, it could scarcely be contended that want of sanction to prosecute u/s 186 was a bar to trial upon a charge of murder. In

the other case Queen-Empress v. Anant Puranik ILR (1900) B. 90 the accused were convicted by an Assistant Sessions Judge of either instigating

or attempting to commit dacoity and the conviction was set aside by the Sessions Judge on appeal, on the ground that the evidence disclosed an

offence of waging war against the Queen (section 122, Indian Penal Code) for which sanction of Government is necessary u/s 196, Criminal

Procedure Code. In holding that the Assistant Sessions Judge was right and the Sessions Judge wrong, the learned Judges appear to have been

much influenced by the fact that the Government had considered and abandoned the idea of according sanction because the police inquiry showed

that there was no evidence to substantiate a charge u/s 122. Mr. Justice Ranade indeed expresses the view that if the Government found no design

to wage war established,

it was not for the committing Magistrate to decline to frame any charge or for the Assistant Sub-Judge to refuse to inquire into the charges of which

the commitment was made. The Sessions Judge virtually has taken on himself the function of setting his own judgment against the opinion of

Government in a matter which by law belongs properly to Government which alone u/s 196 has the right to grant or refuse the sanction.

Whatever be the merits of this doctrine it is needless to say that it is incapable of application here, where the Court in respect of which the

offence was committed had not been approached for sanction or, as the law now requires, moved to complain; nor, if it had been so moved, and

had refused on the ground of lack of evidence, could that very ground have supplied an argument to the Trial Court for proceeding with the

complaint of forgery, because the allegations in the complaint show that if a charge of fabrication must fail a charge of forgery must also fail. It is

true that Mr. Justice Ranade''s judgment contains also some more general expressions of opinion, as where he doubts whether want of sanction to

prosecute u/s 205, Indian Penal Code (false personation for the purpose of a suit) would bar a prosecution u/s 170 or Section 171 (personating a

public servant or wearing garb, etc., of public servant). The latter offences of course contain an element not necessarily present in the former. But if

the proposition is broadly this, that where an offence containing, say, ingredients (a), (b) and (c) can only be inquired into upon complaint of the

Court concerned by reason of the presence of ingredient (c), it is yet open to a Criminal Court, upon the same allegations, to entertain a complaint

of an offence containing ingredients (a) and (b) only although ingredient (c) is also clearly present, I must respectfully express my dissent. It is for

the complainant to lay before the Court the matters of fact upon which he proposes to base his case, and it is for the Court to decide whether with

reference to the provisions of the Penal Law, it is competent to entertain that case upon the facts stated. In the present instance the facts stated

disclosed an offence u/s 193, Indian Penal Code, committed in relation to a proceeding in Court. Section 195 lays down that no Court shall take

cognizance of such an offence otherwise than in the manner prescribed, and it makes no difference, in my view, that the complainant, evidently to

evade that provision, elected to name the offence of forgery in his petition.

This general view is not, I think, really in conflict with such a case as Mahaganam Venkatrayar v. Kodi Venkatrayar ILR (1922) M. 29 : 41

M.L.J. 398 where it was held that a conviction for simple forgery is not illegal although the facts substantiated an offence of forgery of a valuable

security which the Court had no jurisdiction to try. The conviction may not have been illegal, but if the Magistrate had disclaimed jurisdiction to

convict and had proceeded u/s 347, Criminal Procedure Code, assuredly he would have taken the more correct course. In Madurai, In re ILR

(1888) M. 54, a conviction u/s 426, Indian Penal Code, was set aside on the ground that the special form of mischief which the evidence disclosed

was specially provided for by Section 477, Indian Penal Code; and in Setti Rangayya v. Somappa (1924) 20 L.W. 919 Venkatasubba Rao, J.,

set aside a conviction u/s 417, Indian Penal Code, because the facts showed that an offence u/s 420 had been committed.

My attention has been drawn by Mr. Jayarama Aiyar for the counter-petitioners to a decision of Mukerji, J., in Emperor v. Ram Nath ILR

(1924) A. 268 which appears to be directly in point. A candidate for election to a Municipal Board attested the thumb mark of a person

pretending to be a voter in proof of his identity. It was in fact a case of personation, and the candidate was convicted of abetment of cheating and

forgery. The offence abetted was however found to fall more specifically u/s 171 (f), Indian Penal Code, prosecution for which requires the

sanction of the Local Government. In setting aside the conviction the learned Judge observed:

It appears to me that where the offence in question has been specifically described and designated by the Legislature, it is not open to any Court to

say that although the offence may be specifically one u/s 171 (f) of the Indian Penal Code, it falls equally u/s 46S of the same Code and that,

therefore, it is open to the Court to try the offender under either of the two sections. Where there are two provisions, one specific and the other

general, the specific provision ought to be applied in preference to the general one.

If I may say so with respect, this reasoning commends itself to me, and, applying it here, I conclude that the specific offence of fabricating false

evidence should be given a preference over the more general offence of forgery. I consider, therefore, that the learned Sub-divisional Magistrate

was justified in discharging the accused upon this ground.

The merits of the order have been discussed alternatively with reference to the provisions of Clause (e) of Section 195 (1), Criminal Procedure

Code. Upon this point I have heard a very careful argument on both sides, supported by an abundance of case-law. The question is whether when

an offence of forgery is committed by more than one person, one at least being a party to the proceeding in which the document is produced, such

participants in the forgery as are not parties to the proceeding may be prosecuted otherwise than under the provisions of Sections 195 and 476,

Criminal Procedure Code. The answer to the question depends primarily upon the construction to be placed upon the term ""offence "" as it is used

in Clause (c)--whether it denotes the transaction of forgery as a whole, so that the Court is debarred from taking cognizance of that transaction,

including the shares taken in it by non-parties as well as parties, or whether it refers only to the share taken by a party, so that the power to

proceed against non-parties is not affected. Grounds for adopting the former construction are to be found in a Bombay case In Re: Narayan

Dhonddev Risbud, and whatever countenance they may receive from the language of the clause, I must confess that the circumstances of the

present case have impressed me very forcibly with the merits of that view of the law. It seems contrary to public policy that some only of the

participants in an alleged act of fabrication--and those perhaps who play a subordinate part--are exposed to prosecution, while the party in whose

interests the act is said to have been done is protected. But making every allowance for cases which may be distinguishable, and cases in which the

contrary effect of the provision appears to have been taken for granted, there is no doubt that, as observed in Debi Lal v. Dhajadari Gashai 15

C.W.N. 565 there is a strong body of authority in favour of the opposite view. Having regard to my conclusion upon the first head of the argument,

therefore, I refrain from expressing an opinion upon this part of the case. The Criminal Revision Petition is dismissed.

The respondents in the Criminal Appeal, which is preferred against the order of the Sessions Judge of Trichinopoly, dated 20th December,

1927 are the two respondents to the Criminal Revision Petition--M. Vengu Aiyar, N. Ramaswami Aiyar and T. R. Narayanaswami Aiyar. The

learned Sessions Judge dismissed the application on the grounds (a) that no such application had been preferred to the Sub-divisional Magistrate

himself, and that no satisfactory explanation for this omission was given, (b) that the principal offenders, namely, the executant of the alleged forged

document, and the writer and attestors were not sought to be proceeded against, and (c) that the object of the petitioner was not to further the

interests of justice. There is much force in these considerations, and in the further consideration that where the Lower Court appears to have

reasonably exercised its discretion not to take action, that discretion should not be lightly interfered with. On a survey of all the circumstances,

including the nature of the evidence which would appear to be available to prove the case, I am clearly of opinion that there are no sufficient

grounds to disturb the order. The Criminal Appeal is dismissed.