Ramdeo Rai vs Mahabir Rai and Others

B.N. Jha, J.—There was a proceeding u/s 145 of the Code of Criminal Procedure before a Magistrate of Khagaria in respects of certain lands in which the petitioner was the first party and the members of the opposite party were the second party. The proceeding was decided in favour of the petitioner on the 9th October, 1963. There after, on the 4th November, 1968, the opposite party filed Criminal Revision No. 91 of 1963 in the Court of the District Magistrate of Monghyr, against the aforesaid order of the Magistrate, dated the 9th October 1963. In view of the contentions raised in the present application, it is not necessary for me to state the debacle of the dispute between the parties. Suffice it to say here that the petitioner called for a mutation application from the ex-landlord, Nawab Waheb Khan, which purported to have been filed in 1931 and which is alleged to contain the signature of Mahabir Rai, opposite party 1. In support of his claim, the opposite party contended that the signature of Mahabir in the mutation application was a forged one and it should be sent to the expert. However, the parties did not take proper steps in time for sending the document to the expert. The Magistrate delivered judgment in due course and decided the case in favour of the petitioner as stated above. It is submitted by the petitioner here that the Magistrate did not rely on that petition in his judgment. It is not neoessary for me to examine this fast. The revision application was transferred by the District Magistrate to the file of the Additional District Magistrate for disposal.

Thereafter, on the 12th April, 1966, an application was filed by the opposite party that the document, which was called for from the landlord was a forged document as it did not contain the signature of Mahabir Rai, and they prayed that it might be sent to the expert. The learned Additional District Magistrate by his order dated the 12th April, 1966, allowed the application and directed the impugned signature and the thumb impression in the disputed document and the specimen signature and the left thumb impression of Mahabir Rai to be sent to the handwriting and thumb impression expert for comparison on deposit of Rs. 100 being made by the 20th April, 1966. It appears that in the order sheet of this date it is mentioned that the respondent have no objection. After the petitioner cams to know about the order, he filed a protest petition on the 22nd April, 1966 asserting therein that the court had no jurisdiction to send the document to the expert at that stage. The learned Additional District Magistrate, by his order dated the 31st May, 1966 overruled the objection of the petitioner and rejected his application. By the same order he directed the lower Court or its successor Court to take specimen of the handwriting and the left thumb impression of Mahabir Rai for the purpose of comparison with the disputed signature and the thumb impression. The petitioner has come up in revision against that order.

Mr. Nageshwar Prasad, learned Counsel for the petitioner has contended before me that the Additional District Magistrate has no power u/s 485 of the Criminal P.C. to take additional evidence. According to him, the learned Additional District Magistrate was not sitting in appeal against the order passed in a proceeding u/s 145 of the Criminal P.C. He has referred to Section 428 of the Criminal P.C. which provides that the appellate Court in dealing with any appeal has got power to take additional evidence if it think necessary. In his submission, there is no provision in the Code of Criminal Procedure for taking additional evidence by a revisional Court while exercising its powers u/s 485 of the Code. The powers of the District Magistrate while sitting in revision are circumscribed.

Under Section 483 of the Criminal P.C. he can only, while admitting the application, direct that the execution of any sentence or order be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. If there is the application for further inquiry, then u/s 436 the District Magistrate if he is satisfied in the circumstances of the case that further inquiry, was necessary in the case, which was dismissed u/s 208 or Sub-section (3) of Section 204 or into the case of any accused who has been discharged can order further inquiry without referring the matter to the High Court. The District Magistrate u/s 437 of the Code can also order the commitment of an accused if the circumstances of the case go require. Apart from the cases referred to above, while sitting in revision, he can only proceed u/s 438 of the Code. Section 438 of the Code reads as follows:

(1) The Sessions Judge or District Magistrate may if he thinka fit, on examining u/s 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence or an order be reversed or altered, may order that the execution of such sentence or order be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond.

So u/s 438 of the Criminal P.C., the Sessions Judge or the District Magistrate has be power to get aside the order of the Court below himself. If he is satisfied after examining the record of the lower Court u/s 435 of the Code that the finding, sentence of order recorded or passed is not correct, legal or proper or the proceedings of the Court below are not regular, he will have to recommend the matter to the High Court for its order. The order of the Additional District Magistrate amounts to taking additional evidence in the case, which power he does not possess. Section 428 of the Criminal P.C. gives power only to the appellate Court to take additional evidence in the case. If that Court is satisfied to take such evidence for the purpose of disposing of the appeal it will itself take such evidence or direct the trial Court to take such evidence and send the same to it, and thereafter the appeal will be disposed of. No such power is conferred either on the Sessions Judge or the District Magistrate while dealing with an application u/s 485 of the Code.

Learned Counsel, therefore, submitted that action taken by the District Magistrate for the comparison of the signature and thumb-impression on the impugned document with the admitted signature of Mahabir Rai amounts to taking additional evidence in the case and is bad in law and without jurisdiction and must be set aside. If the learned Additional District Magistrate found that the learned Magistrate before whom the proceeding u/s 145 was pending should have given further opportunity to Mahabir Rai for proving that the impugned document is ft forged one he should have recommended the matter to the High Court at the time of disposing of the revisional application. According to him, the learned Additional District Magistrate had no power to pass a final order in the matter. It is now well settled that the powers of the Sessions Judge or the District Magistrate u/s 438 are limited and indicated above.

Learned Counsel for the opposite party does not dispute the correctness of the above submission of Mr. Nageshwar Prasad. He, however, contended that the order of the Additional District Magistrate for comparison of the impugned document by the expert was not intended to take additional evidence in the case, but was passed in connection with the proceeding u/s 476 of the Criminal P.C. whether the petitioner had forged the impugned document or used a forged document in the proceeding cinder Section 145 of the Code. It is difficult to accept this contention. The opposite party had not filed any application for starting a proceeding u/s 476 against the petitioner. Learned Counsel for the opposite party urged that even if there was no such application by the opposite party, the Additional District Magistrate could start a proceeding suo motu. From the order sheet of the court below in Criminal Revision 91 of 1963 it does not appear that the Additional District Magistrate started such a proceeding suo motu and in connection with that proceeding he passed such order.

Learned Counsel for the petitioner submitted that the Additional District Magistrate had no power to start a proceeding u/s 476 of the Criminal P.C. either suo motu or on the application by the opposite party. The power of filing a complaint is given to the court before which the offence referred to in Section 195(1)(b) or (c) of the Criminal P.C. appears to have been committed in relation to a proceeding pending before it. The court may, after it is satisfied after a preliminary inquiry that there is a pirma facie case against the persons, it may file a complaint in writing signed by the presiding officer of the court to a first class Magistrate, who has got powers to take cognizance of the cage. Section 476A empowers the superior court also to file such a complaint if it finds that the offence at referred to above has been committed before a subordinate court where the latter had neither made a complaint u/s 476 in respect of each offence or rejected an application for the making of such a complaint. For the purpose of determining as to whether the first class Magistrate, who decided the proceeding u/s 145 is subordinate to the District Magistrate, the question will, have to be -decided with reference to Section 195 Sub-section (3) of the Code, which reads as follows:

(3) For the purpose of this section, a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court, or in the case of a civil court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such civil court is situate:

Provided that-

(a) where appeals lie to more than one court, the appellate court of inferior jurisdiction shall be the court to which such court shall be deemed to be subordinate, and

(b) where appeals he to civil and also to a Revenue court, such court shall be deemed to be subordinate to the civil or revenue court according to the nature of the ease or proceeding in connection with which the offence is alleged to have been committed.

The proceeding under Sectopn 145 was decided on the 9th October, 1963, by Sri I.C. Nagpal, Magistrate, first class, Khagaria. An appeal against the order of conviction passed by a magistrate will lie to the court of session, under the provisions of Section 408 of the Criminal P.C. Therefore, the Magistrate is subordinate to the Sessions Judge within the meaning of Sub-section (3) of Section 195 of the Code and not to the District Magistrate. Hence, the District Magistrate, not being a superior court within the meaning of Sub-section (3) of Section 195, is not empowered to start a proceeding u/s 476 either on the application made to him in this behalf or otherwise. In this connection learned counsel has referred to two decisions, the first being that of the Calcutta High Court in Amanat Ali Vs. Emperor, , end the other of the Lahore High Court in Behari Lal v. Abdul Qadir AIR 1940 Lah 292. In the Calcutta case the District Magistrate had withdrawn the case to his file and sent the case for inquiry and report to another magistrate and it was the District Magistrate, who, on a consideration of the report of the enquiry, dismissed the complaint u/s 203 of the Code. In these circumstances the District Magistrate was the Magistrate who really tried the case and so he was the most competent person to file complaint. This case, therefore, does not support the contention of the opposite party.

The facts of the Lahore case are quite different, la that case, the District Judge bad with drawn the case to his own file from the court of a Subordinate Judge and subsequently transferred the case to the file of the successor Subordinate Judge, hut retained the matter of the proceeding u/s 476 in his own file. Subsequently the District Judge transferred the proceeding u/s 476 to the file of the senior Subordinate Judge, where the suit was pending, holding that he had no powers to file a complaint, Thereafter, the senior Subordinate Judge filed the complaint. When the matter came before the Hugh Court in revision, it observed that the District Judge, being a superior court, could have also filed a complaint. There is nothing in this case to sip port the contention of learned Counsel for the opposite party that the Additional District Magistrate not being a superior court could start a proceeding in respect of a case which had been tried by a first class Magistrate. Therefore, there is no substance in this contention of learned Counsel for the opposite party.

Learned Counsel further submitted that the Additional District Magistrate has got powers to take further evidence u/s 540, which provides that any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance and examine any such person if his evidence appears to it essential to the just decision of the case. In his submission the District Magistrate, while acting u/s 435 is a court within the meaning of this section and as such he is quite competent to get the document examined by an expert is order to come to the conclusion whether the document is a forged one or not. This does not seem to be the correct view of law. The power to be exercised u/s 540 to examine a witness is subject to the condition that the evidence so required appears to the court essential to the just decision of the case. The District Magistrate while sitting in revision is not finally deciding the case on merits. He has only to recommend to the High Court for setting aside a particular order if in his opinion the order of the court below is not in accordance with law. Secondly, the court while acting under this section should have first determined that the evidence so required is essential to the just decision of the case. The court below has not applied its mind to the provisions of this section and cannot be said to have acted under the special powers conferred on court by this section. In my opinion, there is no force in this contention either.

Thus all the contentions raised by Mr. Kaushal Kishore Sinha in support of the order of the court below fail. In my judgment the order of the Additional District Magistrate passed on the 12th April, 1966, directing the impugned document to be examined by the expert is without jurisdiction and must be set aside. I would, however, direct the Additional District Magistrate to keep the impugned document in safe custody so that it might not be misplaced or tampered with. The cage is fairly old and no time should be further lost in the case being disposed of.

In the result the application is allowed. The order of the Additional District Magistrate passed on the 12th April, 1965, is set aside and the case is remitted back to him for disposal according to law within a period of two months from the date of the receipt of the record.