1. This is an application in revision on behalf of the accused against an order of the Resident First Class Magistrate, Nadiad, who rejected the accused's application to quash certain criminal proceedings pending in his Court under Sections 467 and 109, Indian Penal Code, against the accused.
2. The contention of the accused is that a document in respect, of which a charge of abetment of forgery is made against him in those proceedings was ' produced' before the Extra First Class Subordinate Judge of Surat in the Civil Suit No. 529 of 1922, that any prosecution against him in respect of such a document can be instituted only on a written complaint of the Subordinate Judge and admittedly as there is no written complaint the present proceedings are irregular and should be quashed.
3. It appears that the accused was the defendant in Civil Suit No. 529 of 1922. The plaintiff' in that suit had obtained a decree against the accused and had filed a darkhast in the Extra First Class Subordinate Judge's Court for execution of that decree. In answer to that darkhast the defendant had produced the document in question and had handed up the same to the Subordinate Judge. That document purported to show that the decree had been compromised for a payment of Rs. 1,500. The Subordinate Judge did not take the document on the file on the ground that the date it bore showed that it was out of time for the purpose of evidencing any compromise of the decree. In doing so the learned Subordinate Judge failed to observe the provisions of Order XIII, Rule 6, Civil Procedure Code, which lays down:-
Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned .
4. The learned Subordinate Judge returned the document to the pleader of the accused It is now alleged that that document is being suppressed by the accused and is therefore not forth-corning. Under these circumstances the question before us to decide is whether what happened before the Subordinate Judge wag tantamount to the ' production ' of the document in question within the meaning of Section 195, Clause (c), of the Criminal Procedure Code That section provides :-
195(1) No Court shall take cognizance...(c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code (Indian 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, except on the complaint in writing of such Court), or of some other Court to which such Court is subordinate.
5. Reliance is placed by the learned Counsel for the accused upon Order VII, Rule 14, aa showing that production of a document is different from giving the document in evidence Order VII, Rule 14, Civil Procedure Code, provides :-
Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
6. Like Order VII, Rule 18, Order VII, Rule 14, contemplates that a record of the document or its copy should be kept in the Court when it is said 'to be produced ' although it may not be given in evidence.
7. Our attention has been further called to Queen-Empress v. Nayindas (1880) Unrep. Cr. C. 242 where a Division Bench of this Court consisting of Birdwood and Jardine JJ. held that a document is given in evidence within the meaning of Section 195, Criminal Procedure Code, when it is handed over by the person tendering it to the Court though the Court on inspection may reject it as evidence, for insufficiency of stamp or want of registration. This decision was prior to the date of the amendment of the Criminal Procedure Code whereby the words ' produced or' have been added.
8. Our attention has been further called to a decision of the ' Calcutta High Court in Nalini Kanta Laha v. Anukul Chandra, Laha I.L.R.(1917) Cal. 1002. That case decided that where a document was called for by a party to a proceeding under Section 145 of the Criminal Procedure Code, brought into Court and referred to by his pleader in argument and by the Magistrate in his judgment, though he expressly refrained from any opinion, as to its authenticity, that the document was 'produced' in the proceeding within the meaning of Section 195 (1) (c) of the Code.
9. We are further referred to a more recent case of our own Division Bench in In re Gopal Sidheshvar : (1907)9BOMLR735 . In that case Chandavarkar and Pratt JJ. held that Section 195 (c) of the Criminal Procedure Code 1898 applied to a document which was alleged to be forged and was produce 1 in a Court of Justice ' Production ' of a document in Court, they say, is not the same as ' giving it in evidence.' A document produced in Court according to this decision means 'one which is produced for the purpose of being tendered in evidence or for some other purposes.' We are of the opinion that this interpretation of Section 195 (c) is binding upon us. The circumstances in that case were very similar to the circumstances in the present case.
10. In a still more recent judgment in In re Bhau Vyankatesh : AIR1925Bom433 Macleod C J. and Coyajee J. have given the same wide interpretation to the word ' produce.'
11. We, therefore, make the rule absolute and quash the Magistrate's proceedings in the matter of the complaint against the applicant. This order, however, will not preclude fresh proceedings being instituted after a complaint is made in writing by the learned Subordinate Judge which in his discretion he is competent to do.
12. I agree in regard to the legal aspect of the case. I should like to add that, while it will be a matter of discretion for the learned Subordinate Judge whether to make a complaint or not, in the peculiar circumstances of the case it appears that the complaint by the Subordinate Judge is rather a formality, owing to the fact that, although the document was technically produced in his Court, it was riot retained there; and therefore the Subordinate Judge will probably not find anything on his record regarding it. It is even a question whether the document is in existence now or not. Thus, while on technical grounds the complaint by the Subordinate Judge is necessary, it cannot be expected that the will have any personal knowledge of the subject under consideration.