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In Re: Aparao Jhaverilal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 22 of 1918
Judge
Reported inAIR1918Bom141; (1918)20BOMLR1018
AppellantIn Re: Aparao Jhaverilal
Excerpt:
criminal procedure code (act v of 1898), sections 200, 537 (a)-letter from district judge asking district magistrate to investigate into a case-omission to examine the district judge on oath-letter treated as complaint-irregularity not vitiating the trial.;a district judge forwarded to the district magistrate a copy of his judgment with a letter in which he called attention to the remarks as regards the forgery of a will and requested the latter to take up the matter for prompt investigation. without examining the district judge on oath in support of the statements in his letter, the district magistrate ordered a police investigation ; and, treating the letter as a complaint, he brought the case for trial before a competent magistrate, the accused having applied :-;that the failure to..........length but to put the case in its briefest form it is this.-a complaint of forgery was made by the district judge of ahmedabad to the district magistrate. it was made because a certain will which had come before the district judge in probate proceedings was believed by him to be a forgery. in his complaint which took the form of a letter to the district magistrate, he did not mention any offenders, but he suggested that in the interests of justice there should be a prompt investigation. now this letter fulfils in every particular the requirements of the definition of 'complaint' in the criminal procedure code. on receiving it the district magistrate, who may possibly not have realized for the moment that he was dealing with a complaint, did not send for the complainant, the district.....
Judgment:

Heaton, J.

1. We have heard this matter argued at great length but to put the case in its briefest form it is this.-A complaint of forgery was made by the District Judge of Ahmedabad to the District Magistrate. It was made because a certain will which had come before the District Judge in probate proceedings was believed by him to be a forgery. In his complaint which took the form of a letter to the District Magistrate, he did not mention any offenders, but he suggested that in the interests of justice there should be a prompt investigation. Now this letter fulfils in every particular the requirements of the definition of 'complaint' in the Criminal Procedure Code. On receiving it the District Magistrate, who may possibly not have realized for the moment that he was dealing with a complaint, did not send for the complainant, the District Judge, and examine him on oath, a thing that no doubt he ought to have done. But the omission to do this, as one can see, in a case of this kind, makes no substantial difference whatever. Thereafter there was a police investigation apparently ordered by the District Magistrate, an investigation which a Magistrate has power to order as provided by Clause (3) of Section 156 of the Code. Thereafter again there were other proceedings which I need not enumerate, but they do show that a good deal of misapprehension existed as to the precise legal character of what I hava called the complaint and the proceedings thereon. For in fact the complaint was at one stage supposed to be a sanction and another complaint was presented by a police officer. But eventually matters were brought on to the right track, the complaint was treated as a complaint and the District Magistrate took such measures as he is empowered by law to take to have the case brought for inquiry and trial before a competent Magistrate. On an analysis of the entire proceedings we are reduced to this question : Are we to set aside these proceedings because the complainant was not examined on oath by the Magistrate who received the complaint We must deal with the matter partly as a question of law pure and simple and partly as a question of combined law and common sense. Dealing with it purely as a question of law, I think the failure to examine the District Judge on oath was an irregularity of a kind which comes within those enumerated in Clause (a) of Section 537. We are, therefore, thrown back on the question as to whether there has been a failure of justice and that I take it brings into play our common sense. Very briefly stated I understand the real purpose of Section 195 and Section 476 of the Criminal Procedure Code to be that it is essential to protect men who have been concerned, in Court proceedings from being the victims of malicious complaints. If those sections or similar sections did not exist, the man who had produced a document in a case or who had given evidence would, to a certain extent, be at the mercy of any malicious person in the bazar whether connected with the case or not who chose to present before a competent Magistrate a complaint of forgery or giving false evidence or the like. That was a state of things which the Legislature very properly recognized as one which must be prevented and so it is provided, to put it briefly, that no man concerned or supposed to be concerned in any of the offences enumerated in Section 195 when this supposed offence arises in connection with a case or with judicial proceedings and so forth shall be proceeded against unless the Court or officer concerned indicates that he thinks the case ought to be inquired into. That is the real purpose of the provisions of these sections and here we have the clearest possible indication that the Court concerned thought it most necessary that this suspected case of forgery should be inquired into. It cannot, therefore, be said that there is any failure of justice, because this inquiry is ordered to be made; even though the technicality- and in this case it is a mere technicality-of examing the complainant was not carried out.

2. I think, therefore, that the rule granted in this case should be discharged.

Hayward, J.

3. I concur. I think there can be no reason for doubt that the letter of the 12th, of November 1914 sent by the District Judge of Ahmedabad in which he stated that the forgery was patent and that a prompt investigation was necessary in order to detect the offenders was a complaint to the District Magistrate of Kaira within the meaning of the definition in Section 4, Clause (h), of the Criminal Procedure Code. It is true that thereafter an inquiry ensued and that the case was eventually transferred for trial by the District Magistrate of Kaira under Section 192 of the Criminal Procedure Code without formally having examined the District Judge of Ahmedabad upon oath as strictly required by the provisions of Section 202 of the Criminal Procedure Code. But it is quite clear to me that the omission formally to examine the District Judge upon oath was a mere irregularity which could have had no possible effect upon the subsequent proceedings. For it is quite clear that the District Judge had made up his mind that the patent forgery ought to be inquired into and the offenders brought to book. That is the substantial point required by the provisions of Section 195 and Section 476 of the Criminal Procedure Code. The omission, therefore, of the oath was a mere irregularity in no way prejudicing the subsequent proceedings or tending to the failure of justice and is very similar to the omission in the case of Queen-Empress v. Monu I.L.R.(1888) Mad. 443 in which it was held that such irregularity was covered by the provisions of Section 537, Clause (a), of the Criminal Procedure Code. It is not, in my opinion, disobedience to an express provision as to a mode of trial referred to by the Privy Council in the case of Subrahmania Ayyar v. King-Emperor I.L.R(1901). Mad. 61.

4. I concur for these reasons with the order that the appliction ought to be rejected and the rule discharged.


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