Ram Prasad Ojha and Another vs Maheshanand Pandey

Reuben, J.—This is a petition in revision against an appellate order of the Additional Collector of Shahabad, upholding an order of the Land Revenue Deputy Collector of Shahabad u/s 476, Criminal P.C. directing the prosecution of the petitioners of offences u/s 471, Penal Code.

The case arises out of mutation proceedings before the Land Revenue Deputy Collector in which petitioner 2, Kamanuj Pandey, and Jaisrani Kuer, wife of Ram Prasad Ojha (petitioner 1), and other persons wore applicants. The claim of Jaisrani Kuer was based upon a sale deed said to have been executed by the opposite party, Mahesha Nand Pandey and his wife, Adhikari Kuer, on 3-8-1943, and registered on 7-8-1943. Ramanuj Pandey claimed under another sale deed purporting to have been executed by Mahesha Nand, and executed and registered on the same day as the other sale deed. Separate applications were made by Jaisrani Kuer and Ramanuj Pandey for mutation; but the cases were dealt with analogously by the Land Revenue Deputy Collector. The mutation was opposed, among others by Mahesha Nand and his wife, Adhikari Kuer, on the allegation that there was no such sale as alleged, and that both the sale deeds were forgeries. In support of Jaisrani''s sale deed, certain other documents were put forward by the applicants, namely, a Mahad-anama (Ex. 1), under which Adhikari Kuer purported to enter into an agreement for the sale of the property, and number of handnotes, purporting to have been executed by Adhikari Kuer, which are said to have formed part of the consideration for the sale deed All these documents and the two sale deeds purported to bear the thumb-impressions of the executant.

Evidence was entered into before the Land Registration Deputy Collector both on the question of possession and of the genuineness of the sale deeds. Amongst other evidence adduced on the latter point, there are the depositions of two expert witnesses, according to one of whom the thumb impressions are genuine, while according to the other they are not genuine, but are impressions made by means of blocks. Both points were decided by the Land Registration Deputy Collector against the applicants, and he, accordingly, rejected the applications by his order dated 9-4-1945. Appeals against this order to the Collector and the Commissioner were dismissed on the point of possession; but the Commissioner also made a reference to the sale deeds in the following terms:

There is overwhelming evidence to show that the petitioners are not in actual possession and, on that ground alone, the application must be rejected even though it may be conceded that on the basis of the sale deed, on the genuineness of which two handwriting experts differed, the petitioners may claim a semblance of title.

The present proceedings started, on the application of Mahesha Nand Pandey and Mt. Adhikari Kuer, who asked for the prosecution of eleven persons connected with the mutation proceedings. The Land Registration Deputy Collector rejected the petition except as to the present petitioners, one of whom, as I have mentioned, was an applicant for mutation. The other, Ram Prasad Ojha, was merely the husband of an applicant, and deposed as a witness in the case. It is probable that he also acted on her behalf in the case, because, in his order u/s 476, the Land Registration Deputy Collector says that "these people" (meaning thereby the. two petitioners) produced the sale deeds and handnotes, and put them in Court as evidence.

On behalf of petitioner, Ram Prasad Ojha, it is urged that his case falls within the rule laid down by a Division Bench of this Court in Mathur Prasad v. Pitambar Singh AIR 1945 Pat. 362. It was decided in that case that Section 476, Criminal P. C. must be read along with Section 195, Sub-section (1), Clause (b) and (c) of the Code, that the latter section creates a bar to the institution of a prosecution in certain classes of cases, and that the former section provides the procedure by which alone that bar, when it exists, may be removed. In their Lordships'' opinion, a Court has jurisdiction to proceed u/s 476 only when u/s 195 a bar to prosecution for the particular offence exists. The offence with which we are concerned is one u/s 471, Penal Code, which is one of the sections mentioned in Clause (c) of Sub-section (1) of Section 195. This provides a bar to a prosecution where such offence is alleged to have been committed by a party to a proceeding in any Court. There is no bar if the offence is committed by somebody who is not a party to such proceeding. Hence if such an offence is committed by some one; who is not a party to such a proceeding, no occasion arises for proceedings u/s 476 and the provisions of that section do not come into operation at all.

On behalf of the opposite party, my attention is drawn to the decision in Emperor v. Balgaunda Ramgaunda AIR 1931 Bom. 305. It was pointed out there that although the two sections are connected with each other, the scope of Section 476 is somewhat wider than that of Section 195. It is true that, by reason of Section 195, the jurisdiction of the Court to proceed u/s 476 arises only when the offence is alleged to have been committed by a party to the proceeding. Once the Court gets jurisdiction however, and proceeds u/s 476, it is empowered to deal with one offence as a whole, and is not bound to confine its complaint only to the party, and may complain also against a person who is not a party but who has participated in the commission of the offence. It is urged that in the case before me, Ramanuj Pandey, a party to the mutation proceeding, was alleged to have committed an offence, and, therefore, the Court had jurisdiction to proceed also against Ram Prasad Ojha. I cannot agree that the facts of the Bombay case are applicable to the present case for the two petitioners are being proceeded against in respect of different offences, although both the offences happen to be under the same section.

u/s 195, cognizance, except on the complaint of the Court concerned, is prohibited of an offence u/s 471, Penal 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." The document, on which the case against Ram Prasad Ojha depends, is the sale deed in favour of Jaisrani. Ramanuj Pandey had nothing whatever to do with that document, and it cannot be suggested that he has committed any offence in respect of that document. Hence, so far as that offence is concerned, the bar u/s 195 does not arise and the Court has no jurisdiction u/s 476, and as regards the; other document jurisdiction u/s 476 exists, but the offence alleged does not touch Ram Prasad Ojha. I have, therefore, no doubt that, so far as Ram Prasad Ojha is concerned, the direction u/s 476 is without jurisdiction, and must be set aside.

As regards the second petitioner, the position is quite different. This is a petition in revision, and I can only interfere in the limited circumstances set out in Section 115, Civil P.C. No question of jurisdiction arises, and the main contention is that the Courts below committed a material irregularity by not considering, as required by Section 476, Criminal P.C. whether a prosecution was necessary in the interests of justice. It is well established that this point must be considered by the Court: Keramat Ali Vs. Emperor, , Surendra Nath Jana Vs. Kumeda Charan Misra, , Nabani Nath Mukherjee and Another Vs. Emperor, , In re C. Ramayya (33) 56 Mad. 157 and Nand Kumar Sinha Vs. Emperor, . The failure to come to an express finding on the point, however, does not necessarily render the order invalid. It is sufficient if the record shows that the Court applied its mind to the point: Satis Chandra Mallik and Others Vs. Emperor, , and Superintendent and Remembrancer of Legal Affairs, Bengal v. Ijjaulla Paikar AIR 1931 Cal. 1902 and in a case where a grave offence is alleged to have been committed it has been held that it would be unreasonable for the Court to take the view that the, point was not considered: Nawabali Khan Vs. Chandrakanta Banerji, . In the last resort, the point may be considered by this Court in revision, if it does not appear to have been considered by the Courts below.

The Land Deputy Collector has ordered the prosecution on the finding that a prima, facie case has been made out a finding which was considered insufficient in Superintendent and Remembrancer of Legal Affairs Vs. Ijjatulla Paikar, . The Additional Collector does not seem to have considered even whether a prima, facie case has been made out. I have, therefore, perused the record of the mutation proceedings and the judgment of the Land Deputy Collector in that case. In that case, the Deputy Collector came to a definite finding that the documents in question were forged. That finding was based on several grounds, many of them observations of the Deputy Collector himself. Also it was based on the opinion of an expert whose evidence the Deputy Collector preferred to that of the expert on the other side. On a perusal of the evidence of the expert relied on by the Deputy Collector, I find that there are certain statements in it which require the serious consideration of the Courts--statements which I refrain, from discussing because such a discussion on the insufficient materials appearing on the record may prejudice the accused. The expert was; not cross-examined in detail, and the grounds on which he based his opinion are not set out at any length or with all the necessary particulars. The materials necessary for coming to a finding as to whether the opinion expressed by him is correct or not are, therefore, not before the Court. At present, however, it is not necessary to come to a finding on this point. It is only necessary to see whether there is a serious case made, out and whether there is a reasonable chance of a conviction. It appears to me that these conditions are satisfied in this case and, as the allegation is one of a serious fraud, it is necessary, in the interests on justice, that the matters should be taken to the criminal Courts, I, therefore, find myself unable to interfere.

On the above grounds, I allow the petition of the petitioner Ram Prasad Ojha, and withdraw the complaint as against him. The petition of Ramanuj Pandey is dismissed.