Ananthanarayana Ayyar, J.
1. In P. R. C. No. 2 of 1962, the learned Principal'Munsif-Magistrate of Warangal passed an order committing the three accused therein to the Sessions Court, Warangal for trial after framing charges under Section 467 I. P. C. against A-1 to A-3 and under Sections 209, 471 and 193 I. P. C. against A-1. The three accused filed this revision petition for quashing the order of committal.
2. In the order of committal, it is mentioned that the committal is under Section 207A(7) Cr. P. C. and accordingly, the revision petition mentions that it is filed under Section 561-A Cr. P. C. But, in fact, the committal inquiry was held on the basis of a complaint filed by the learned Subordinate Judge, Warangal and not on a police report. Therefore, in view of Section 207 Cr. P. C. the procedure which had , to be followed was that indicated in Section 207(b) and Section 208 Cr. P. C. onwards. The committal must be deemed to have been made under Section 213 Cr. P. C. and not under Section 207-A(7). Consequently, the petition for quashing must be deemed to be under Section 215 Cr. P. C. which is the correct section applicable to this case. Under that Section, quashing can be done only on a point of law.
3. The relevant facts are as follows: A-l filed O. S. No. 95 of 1960 on the file of the Munsif-Magistrate, Warangal. It was transferred to the Sub-Court, Warangal and tried by the learned Subordinate Judge as O. S. No. 38 of 1961. The suit was for recovery of money due under a promissory note dated 21-7-1957 purporting to have been executed by the sole defendant, Chinna Veerayya in favour of the sole plaintiff namely, Al, for Rs. 1,200/-. The learned Subordinate Judge, after trial pf the suit, pronounced judgment on 16-8-1961 dismissing the suit with costs. In the course of the judgment, he observed as follows:
'I feel that the plaintiff must have forged this pronote in collusion with the attestors (A. 2 and A. 3) as is evident from the anachronism in it. So it is expedient in the interests of justice that the plaintiff should be prosecuted for forgery. So the plaintiff is liable for prosecution and steps will be taken for the same in due course.'
A-2 and A-3 were attestors, of the promissory note and also deposed as P. Ws. 2 and 3 in that suit in favour of the plaintiff (A-l) who was P.W. 1. The learned Subordinate Judge duly issued a notice to A-1 to show cause and, after hearing him, passed an order dated 29-8-1961 as follows:
'Complaint with enclosures and covering letter is sent to Additional Munsif Magistrate, Warangal... Complaint is preferred against plaintiff as A-l and against both the attestors as A-2 and A-3 and despatched to Additional Munsif-Magistrate.'
In accordance with that order he preferred a complaint and sent it to the Additional Munsif-Magistrate, Warangal. The latter took the case on file as P. R.C. No. 22 of 1961 and passed an order of committal dated 23-10-1961.
The accused filed Criminal Revision Case No. 807 of 1961. It came up for hearing before our learned brother, Sharfuddin Ahmed, J. He held that the contention made on behalf of the accused, that the learned Subordinate judge was not justified in laying a complaint, was not tenable as the order of the learned Subordinate Judge had become final, no attempt having been made to have it set aside. But, all the same, he held that the commitment was bad and had to be quashed because the provisions of Sections 211 and 212 Cr. P. C. had not been complied with. He accordingly quashed the committal and sent the matter back to the learned Magistrate for disposal according to law.
4. The learned Advocate for A-2 and A-3 filed M. P. No. 416 of 1962 in P. R. C. No. 2 of 1962, even before the committal order was passed, praying for discharge of A-2 and A-3 on the ground that the court could not take cognizance of the complaint against them regarding offences under Sections 463 and 471 I. P. C. The learned Munsif-Magistrate gassed an order dated 13-8-1962 as follows:
'It is a P. R. Case. After recording the essential evidence, the stage of discharging the accused or committal will arise. The counsel for the accused may argue at the proper stage of the case. Therefore, the petition is disallowed.'
This order of the learned Magistrate was not challenged in revision. The learned Magistrate proceeded to record evidence and passed the order of committal, mentioning Section 207-A(7) Cr. P. C. in spite of the fact that the order of the High Court in Crl. R. C. No. 807 of 1961 mentioned the fact that the 'provisions of Sections 211 and 212 Cr. P. C. had not been complied with and thereby indicated that the proper sections applicable were Section 208 onwards and not :Section 207-A Cr. P. C.
5. This case originally came up for hearing before our learned brother, Mohammed Mirza, J. The latter passed an order as follows:
'The main point raised by the learned counsel for the petitioners, Shri Adavi Rama Rao, is that the Magistrate could not take cognizance of the case against A-2 and A-3 because they were mere witnesses and not parties to the suit. In support of contention, he relies on the following decisions ......... On the other hand, Sri Bali Reddy on behalf of the Public Prosecutor contends that under Section 190(1)(c) Cr. P. C. the Magistrate is competent to take cognizance if the commission of the offence comes to his knowledge in any of the ways contemplated by the aforesaid section. By law, restriction is imposed only to the extent of the party to the suit because Section 195(1)(c) Cr. P. C. does not confer any jurisdiction on the Magistrate unless the complaint is made by the Civil Court. I think this question may be decided by a Bench............'
Accordingly, this has come up for decision before this Bench.
6. Section 195(1) Cr. P. C. runs as follows:
'No Court shall take cognizance -
(a) of any offence punishable under Sections 172 - 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;
(b) of any offence punishable under any of the following sections of the same Code .................. when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint fin writing of such Court or of some other Court to which such Court is subordinate; or
(c) of any offence described in Section 463 or punishable under Section 471.....of the same 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.'
Section 476 Cr. P. C. lays down the procedure to be followed in cases mentioned in Section 195 Cr. P. C. In Re, Devji ILR 18 Bom 581 it was held that a case could be dealt with under Section 476 Cr. P. C. (in respect of witnesses as well as of parties. Subsequently, in Govind Iyer v. Emperor, ILR 42 Mad 540: (AIR 1919 Mad 71 a Full Bench of the Madras High Court held that Section 476 Cr. P. C. was a corollary to Section 195 Cr. P. C. and that lit was not competent for the Court under Section 476 Cr. P. C. (as the Section then existed, the amendment of 1923 had not come into existence) to make a complaint against persons who were not parties.
7. In Emperor v. Bal Mukand, AIR 1928 Lah 510 it was held to the following effect; (at page 512).
'Every person including the presiding officer of a Court has power to make a complaint as a rule. It is only when that general power is taken away by statute that a complaint becomes incompetent unless made by the only authority allowed to do so. There is nothing in Section 476 to the effect that the presiding officer of a court cannot make a complaint against a person who is not a party, and it seems to me that the general power of the presiding officer Ss not taken away by implication because he is the only person who can make a complaint against a party in certain circumstances.'
The learned judges referred to the decision of the Madras High Court in ILR 42 Mad 540: (AIR 1919 Mad 7) (FB) as follows: (at page 512).
'Under the old Section 476 Criminal P. C. it was held by th6 Madras High Court in ILR 42 Mad 540: (AIR 1919 Mad 7) (FB) that proceedings under it could not be taken against a person who was neither a party nor a witness in a suit in respect of abetment of forgery of a document exhibited in the suit on the ground that the words 'any offence referred to in Section 195' in the old Section 476 incorporate the conditions laid down by Section 195 as to the offence being alleged to have been committed by a party, and a Court could take action under Section 476 only under such conditions. This view, however, was not held by all the High Courts.' Addison, J., after referring to several other decisions observed thus: (at page 513)
'It seems to me that unless the Legislature has specifically enacted that Courts should not take action against persons who arc not parties, though ahey alone can take action against parties, it would not be proper to read such an intention into the Act especially as it gives rise to such inconvenient consequences. I am unable to discover anything in the Act definitely forbidding the presiding officer of a Court to make a complaint about an offence committed in connection with a document produced an his Court when the person complained of is not a party. All that has been enacted is that he alone can do so if the alleged offender is a party to the proceeding.'
In effect, this decision has differed from the view of the Full Bench of the Madras High Court in ILR 42 Mad 540: (AIR 1919 Mad 7) (FB). But the latter decision as binding on us and has to be followed except to the extent to which a decision of a superior authority is to the contrary and has to be preferred.
8. In Virindar Kumar v. State of Punjab, : 1956CriLJ326 the Supreme Court observed as follows: (at page 158).
'It has no doubt been held that Section 476 must be taken to be exhaustive of all the powers of a court as such to lay a complaint, and that a complaint filed by it otherwise than under that section should not be entertained. But there as abundant authority that Section 476 does not preclude the officer presiding over a Court from himself preferring a complaint, and that the jurisdiction of the Magistrate before whom the complaint is laid to try it like any other complaint is not taken away by that section.'
9. In Balgaunda v. Emperor, AIR 1931 Bom 305 the relevant facts were as follows: The District Judge of Satara heard some proceedings on an application filed by A-1 for letters of administration regarding a will. The learned District Judge held that the will was forged and passed an order under Section 476 Cr. P. C. (by that time, the Amendment of 1923 had not come into existence) to the effect that A-l was guilty of offence under Section 471 I. P. C. and that three others namely, A-2 to A-4 were guilty of offences under Section 467 Cr. P. C. All the accused were convicted. In the appeal before the Division Bench, it was urged as a point of law in favour of A-2 to A-4 that they had never been properly committed for trial under Section 476 Cr. P. C. since they had not been parties to the proceedings for obtaining letters of administration. Beaumont, C. J. observed as follows: (at page 306).
'I myself think, as a matter of construction, 1hat both under the old Code and new Code, Section 476 is a corollary of Section 195. It seems to me that the reasoning of the Full Bench of the Madras High Court in ILR 42 Mad 540: (AIR 1919 Mad 7) (FB) is unanswerable upon that point. But I do not think that it follows from that that it was not competent for the Court under Section 476 of the old Code to make a complaint against persons who were witnesses, and not parties, in the proceedings which came before the court and to which Section 195 applied. Section 195 is a disabling section, and Section 476 is an enabling section, and I see no inherent reason why the powers conferred by Section 476 should be strictly limited by reference to the disabilities imposed by Section 195......reading that sub-section (that is, Sub-section l(c) of Section' 195) with Section 476 it seems to me to come to this, that if once it is ascertained in judicial proceedings that there is an offence described in Section 463 I. P. C., or punishable under Section 471, 475, or 476 of that Code and such offence appears to have been committed by a party to the proceedings then under Section 476 the court can inquire into the matter, and if it comes to the conclusion that other persons also, for example, witnesses, are guilty of the offence, I think that it can refer the whole case to a Magistrate for an enquiry and committal. It seems to me that the words of Section 476 of the old Code are wide enough to justify that conclusion. That conclusion is also directly justified by the decision of this Court in ILR 18 Bom 581.....'
10. In Sengoda Goundan v. Vayapuri Goundan, AIR 1932 Mad 129 the question arose whether an order complaining against persons who were not parties in proceedings for abetting a forgery should be cancelled. Jackson, J., followed the decision of the Full Bench in ILR 42 Mad 540: (AIR 1919 Mad 7) (FB) and canceled the lower court's complaint against those persons. But, the learned Judge also observed as follows: (at page 129).
'The amendment of these sections (Sections 195 and 476) in 1923 has not affected the reasoning adopted by the Full Bench and so far as this province is concerned that ruling constitutes the binding law. Anybody can complain against an abettor of the offences in Section 195(1)(c) and there is no question of the court itself complaining qua Court under Section 476. Of course there is nothing to prevent the presiding officer himself complaining if he likes, as pointed out in AIR 1928 Lah 510 only then Section 200(aa) will not apply. In Bombay it has always been held that Section 476 in reference to Section 195(1)(c) is not confined to parties ......'
The learned Judge referred to the decision in ILR 18 Bom 581 which was dissented from by the Madras High Court in ILR 42 Mad 540: (AIR 1919 Mad 7) (FB) and which was affirmed by the Bombay High Court in AIR 1931 Bom 305.
11. In Mehi Singh v. Emperor, AIR 1933 Lah 884 the learned Subordinate Judge. Mianwali filed a complaint under Sections 186 and 225B I. P. C. against Mehr' Singh, a judgment-debtor who was said to have been rescued from the lawful custody of a bailiff. Section 225-B I. P. C. is not one of the sections mentioned in Section 195 Cr. P. C. The learned Judge observed as follows: (at page 885).
'Sections 195 and 476, Criminal P. C., have no application. A Magistrate is competent to make a complaint as a common informer: See Sections 4(lXg), 190(1)(a), 200 and 252 of the Code. In AIR 1928 Lah 510 this Court pointed out that 'every person including the presiding officer of a Court has power to make a complaint as a rule........ It is always open to the prosecution to withdraw a case with the permission of the Court (Sections 248, 494, Criminal P. C.) In cases like this the proper person to make the complaint is the officer from whom the escape or rescue has been effected, but a complaint by another person aware of the facts is not a nullity...'
It would appear that, in that case, the order sought to be revised was the order of the learned Subordinate Judge filing the complaint.
12. In Emperor v. Nanak Chand, AIR 1943 Lah 208 the learned Additional District Magistrate (Mr. Izzat Rai) who was also a Collector, took proceedings purporting to be under Section 476 Cr. P. C. and made a complaint of offences under Sections 193 and 420 read with Section 511 I. P. C. against Nanak Chand. The complaint was duly taken on file by a Magistrate, Banwari Lal. It was held that the officer as Additional District Magistrate acted without jurisdiction as the offences did not come within the scope of Section 195 Cr. P. C., and, therefore, the order wan illegal. Blacker, J., observed as follows: (at page 209).
'There was nothing to prevent Mr. Izzat Rai as Revenue Officer making a complaint on these facts to a Magistrate and it should be noted that he has signed his order as First Assistant to D. C. and Collector, as well as Additional District Magistrate .......It does not appear to me that the Magistrate's jurisdiction to take cognizance of an offence on a complaint can in any way be affected by any illegalities which may have been previously committed by the person making the complaint .............it seems to me, the illegalities are confined to whatever could only be done under Section 476, and cannot extend ..............to the acts of the trial Magistrate L.Banwari Lal who had full jurisdiction to take cognizance on an allegation made to him in writing by Mr. Izzat Rai that an offence has been committed.'
13. In In re Marudai Pillai, AIR 1945 Mad 458, the Sub Divisional Magistrate, Trichinopoly made enquiries into an allegation that injuries have been caused to one Sellamuthu by the Police. After finishing the enquiry the S. D. M. Trichinopoly filed a complaint before the S. D. M. Musiri. That complaint was duly taken on file and after an enquiry, charges were framed against the accused. After the charges were framed, the accused raised an objection that the S. D. M. Trichinopoly had no jurisdiction to fire a complaint and that, therefore, the proceedings which had been started on such a complaint were illegal and should be quashed. Kuppuswami Ayyar, J., observed as follows (at page 459):
'When the Code has made provision for circumstances under which a court can file a complaint it must be considered to be exhaustive in respect of it and to limit the powers of the Court in making such complaints. Consequently, it cannot be said that the Magistrate had jurisdiction to file the complaint in this case.'
But, the learned Judge proceeded further to hold as follows (at page 459):
'It is urged however that even though he had no jurisdiction to file a complaint', still if such a complaint was received, the Sub-divisional Magistrate of Musiri could act under Section 190(1)(c) and take cognizance of the case and the action of the sub-divisional Magistrate of Musiri must be considered to have been taken under that section. If that be so, then under Section 191, it is open to the accused to object to the case being tried by that Magistrate and ask for the case being tried by another Magistrate.....'
Though the learned Judge has used the words 'if that be so', in effect he accepted the contention mentioned above and acted upon it. For, he simply set aside the charges and directed the Magistrate to ask the petitioners in that case if they want to have the case tried by another Magistrate and then proceed with the matter according to law.
14. In Mathur Prasad v. Pitambar Singh, AIR 1945 Pat 362, the Subordinate Judge, Gaya, after holding an enquiry under Section 476, Cri. P. C. made a complaint against not only a party in the appropriate proceedings before him but also against that party's pleader who was not a party. The order making complaint was sought to be revised. The learned Judges observed as follows: (at page 363):
'As Sections 195 and 476 now stand after the amendment of 1923, it is clear that they must be read together. Section 195, Sub-section (1) lays down a bar to the cognizance of certain offences. Section 476 lays down the procedure as to how the bar imposed by Section 195 Sub-section (1), Clauses (b) and (c) is to be removed. Section 476 operates only to remove the bar created by Section 195, Sub-section (1), Clauses (b) and (c). Where, therefore, there is no bar created by these clauses of Section 195 Sub-section (1), Section 476 has no operation... ..................From Section 195, Sub-section (1), Clause (c),it is clear that it bars the cognizance of the offence of forgery and certain connected offences, who the offence is committed by a party to any proceeding in Court. It creates no bar if such offence is committed by any person who is not a party to any proceeding in Court. Consequently in such case Section 476 has no application.'
Chatterji, J., concluded as follows: (at page 366):
'In the present case, the petitioner who is a pleader cannot be said to be a party to the proceedings, under Section 83, T. P. C. Act. The Court, therefore, was not competent to start a proceeding against him under Section 476, Criminal P. C. ............ and inquire into the alleged offenceof forgery. Nor was it competent to make a com-plaint against him in respect of offences under Sections 465 and 471, Penal Code. The complain must accordingly be withdrawn.'
It will be observed that, in that case, the order which was sought to be revised was the order directing the complaint to be filed. Further, the question as to whether the complaint could have been properly filed by the learned Subordinate Judge in his capacity as Presiding Officer of the Court or as an ordinary person, as distinct from filing complaint as Court, was not considered nor did the question arise as to whether, if the Magistrate to whom complaint had been made had taken the complaint on file and proceeded further, his action in taking the complaint on file and the further proceedings would in any way be vitiated by the fact of the order of the learned Subordinate Judge under Section 476, Cri. P. C. being illegal. In that respect, the facts of that case were materially different from the facts of the present case.
15. In Har Prasad v. Emperor, AIR 1947 All 139 the Commissioner of Agra Division heard a petition exercising powers regarding election under Section 24(1) of the U. P. Municipalities Act, 1916. He also framed a complaint purporting to be under Section 476, Cri P. C. against Har Prasad of offences relating to fabrication of false evidence etc. The District Magistrate, Aligarh took the case on file and transferred it to another Magistrate for disposal. Then the accused, Har Prasad, filed an application that the Commissioner was not competent to make any complaint for offences referred to in Section 195, Cri. P. C. The teamed Magistrate treated or was prepared to treat the complaint as one of offences under Section 466 and Section 468, I. P. C. which are punishment sections' for offences described in Section 463, I. P. C. as per the wording in Section 195(1)(c), Cri. P. C. The learned Magistrate dismissed that application. The accused filed another application before the learned Sessions Judge. The matter ultimately came up before the High Court. ' The learned Judge, Yorke, J., held that, the Election. Judge could not be brought within the ambit of the term 'Civil, revenue or criminal Court' in Sections 195 and 476, Cri, P. C. but that the Magistrate was perfectly competent to entertain the complaint under Section 190(1)(a), Cri. P. C. He observed as follows: (at page 141):
'Moreover there is nothing in Section 190 of the Code unless it be the words 'Except as hereinafter provided' which lay it down that a complaint of facts must be a private complaint in the sense of, being made by a private person and not some one presiding over a Court of a kind which does not come within the scope of Sections 476 and 195. This view was taken by my brother Allsop, J. in Tara Singh v. Emperor, AIR 1938 All 449: 1938 All LJ 528 where it was held that there was nothing in Section 190 to prevent a Sub-Divisional Magistrate from taking cognizance of an offence that happened to be reported to him by a Civil Judge or an officer who presides in a Court of justice. It was also stated that the civil Judge being a complainant it is not necessary that he should be examined before the Magistrate who takes cognizance of the complaint (vide Section 200(aa). Criminal P. C.). However, even if he ought to be examined and is not examined, 'that would amount to an irregularity which would not vitiate the whole trial'.
In my judgment the principle of this decision is clearly applicable and the Magistrate was perfectly competent to entertain this complaint under the provisions of Section 190(1)(a), Criminal P. C. The words 'Except as hereinafter provided' do not affect the case because there is nothing in the succeeding sections which prevents an Election Judge from being treated as a private person.'
16. In Channu Lal v. Rex, AIR 1949 All 692 a Liquidation Officer acting under the U. P. Encumbered Estates Act heard certain proceedings. He directed applicants before him to show cause why they should not be prosecuted for offences under Section 422, I. P. C. After hearing them, he ordered that the applicants should be prosecuted and accordingly he sent complaint to the Sub-Divisional Magistrate, Mainpuri. An appeal against that, order ended in dismissal. The complaint was taken cognizance of by Mr. Ashfaq Hussain, S. D. Magistrate, Mainpuri and went by transfer from one Magistrate to another and ultimately came back to the then S. D. M. Mainpuri, Mr. B. P. Sahi. The latter convicted the accused under Section 422, I. P. C. An appeal was dismissed and the accused filed a revision petition.
The learned Judges held that, whether the Liquidation Officer was or was not a Court, he could not make a complaint for offences under Sec, 422, I. P. C. under Section 476, Cri. P. C. because Section 422, I. P, C. is not mentioned in Section 195(1)(b) or (c) and that still it did not conclude the matter as the order of the Officer communicated to the Sub-Divisional Magistrate was a 'complaint' as defined in Section 14(1)(b), Cri. P. C. The learned Judges considered various decisions including the decision in AIR 1945 Mad 458 and observed thus (at page 696):
'The fact that he could not have taken any action under Section 476, Criminal P. C., in his capacity as a 'Court' does not, in our opinion, debar him from taking any action in his capacity as a public officer or authority. The complaint, therefore, in the present Case, could be validly taken cognizance of by the Magistrate concerned. If it be conceded for the sake of argument that the liquidation officer acted merely as a Court and not as a public officer and that, therefore, the complaint made by him was an invalid complaint, we would still hold, in that case that the Magistrate had jurisdiction to act under Clause (c) of Section 190(1), Criminal P. C. He could have treated this invalid complaint as an 'information'. In its ordinary sense 'information' is a wider term and includes any communication relating to the commission of an offence. A complaint is a particular kind of information and is more or less formally made with the definite object that the person to whom the complaint is made will take action under the Criminal Procedure Code. 'Information' is the genus of which a 'complaint' is a specie. In Section 190(1)(c) however, the word 'information' must be construed as referring to information which is not a yalid complaint falling under Clause (a) of that section. If a complaint is not a valid complaint, it does not cease to be an information and, therefore, can be treated as such under Clause (c) of Section 190(1) and it is open to the Magistrate to whom an invalid complaint is lodged to treat it as an information under Section 190(1)(c), Criminal P. C., subject, of course, to the limitations imposed by Section 191, Criminal P. C., in this behalf.'
17. In (S) : 1956CriLJ326 , the relevant facts were as follows: Before the District Magistrate of Karnal, who was acting as Returning Officer at an election, an application was filed under Section 476 and Section 195, Cri. P. C. He held an enquiry on the application, passed an order that there was prima facie case for taking action and filed a complaint before the first class Magistrate, Kama!, charging Virindar Kurnar with offences under Section 181, Section 182 and Section 193, I. P. C, Virindar Kumar filed an appeal against that order before the Sessions Judge who dismissed it on the ground that the Returning Officer was not % 'Court' and that the proceedings did not fall under Section 476, Cri. P. C. and consequently no appeal lay under Section 476B, Cri. P. C. . Virindar Kumar took the matter in revision before the High Court of Punjab and the latter held that the Returning Officer was a 'Court' and that, therefore, the order was appealable.
The matter came up before the Supreme Court. Their Lordships held that the Returning Officer deciding on the validity of a nomination paper was not a Court' for the purposes of Section 195(1)(b), Cri. P. C. and that, therefore, even as regards the charge under Section 193, I. P. C. the order, of the First Class Magistrate was not appealable as the offence was not committed in or in relation to any proceeding in a Court. They also held that the application was presented under Section 195, Cri. P. C. which included Sub-section 1(a) of Section 195 also and that, therefore, it was not necessary to move the Returning Officer once again under Section 195(1)(a), Cri. P. C. with reference to the offences under Section 181, I. P. C., and that, therefore, the order for prosecution as regards offences under Sections 181 and 182, I. P. C., could not be quashed. As regards the offence under Section. 193, I. P. C., their Lordships made an observation which has been extracted by us earlier in this judgment. They also observed as follows: (at page 158)
'There is thus no legal impediment to a returning officer filing a complaint under Ss, 181 and 182 as provided in Section 195(1)(a) and charging the accused therein with also an offence under Section 193'.
18. In Akloo Prasad v. Nandan Prasad, : AIR1960Pat310 one Akloo Prasad (according to the allegations against him) filed a complaint in the name of his father by forging the latter's signature on the complaint as well as the vakalatnama. The complaint was duly numbered as a suit. Ultimately, it was withdrawn. The defendant filed an application for prosecution of the petitioner for committing forgery of the complaint and the vakalatnama. The application was rejected by the Court of first instance but was allowed on appeal. A contention was raised that the petitioner was not a party to the suit and that, therefore, no complaint could be lodged against him for forgery, by the Court. Untwalia, J., accepted this contention relying on the decision in AIR 1945 Pat 362.
Another contention was raised that because Akloo Prasad had signed a false verification in the plaint, he was guilty of the offence under Section 193, I. P. C., which was an offence covered by Section 195(1)(b), Cri. P. C. and that, therefore, the Court was competent to file a complaint against him even though he (Akloo Prasad) was not a party to the suit. The learned Judge rejected that contention. The case has only reached the stage of an order being passed directing a complaint to be filed. The questions were not raised or considered as to whether the complaint could be filed by the Presiding Officer of the Court, though the Court itself as Court could. not file the complaint and whether, if the complaint was actually filed before a Magistrate, the latter could take the case on file under Section 190(1)(e), Cri. P. C. treating it as 'information' and whether if the Magistrate did take it on file and tried the case, the taking on file and trial would be vitiated by any legal defect in the proceedings before the Court of first instance which resulted in the complaint being filed.
19. The position of law as seen from the various decisions referred to above is as follows:
Where a P. R. Case is tried regarding an offence said to have been committed in proceedings before a Court, there are various possible stages which can ordinarily exist in the following ways.
STAGE I : Initiation of Proceedings before the Court: This is followed by some proceedings of the nature of an enquiry under Section 476, Cri. P. C. read with Section 195, Cri. P. C. If the enquiry, results in final order (which becomes final) to the effect that no complaint need be filed, there will be no further stages. On the contrary, that Court may pass an order that a complaint should be filed. When the Court passes such an order, complaint will be filed accordingly.
STAGE II: The Magistrate before whom the complaint is filed takes the case on file as a P.R. Case in conformity with law. This is followed by the Magistrate holding an enquiry as a P. R, Case. This may ultimately result in the Magistrate discharging the accused. If such order becomes final, there would not be any further stage. The Magistrate may also pass an order committing the accused to Sessions Court for trial.
STAGE III : The Sessions Court will take the case on file as a Sessions Case. From then, it will proceed to hold trial which will end in a judgment of conviction or acquittal of the various accused on various charges. In holding the proceedings between Stage I and Stage II, and in filing the complaint, the Court may act as a 'Court'. But, it is the Presiding Officer of the Court who signs the complaint. His action in filing complaint can be looked upon as action in three different capacities namely, (a) as complaint by Court, (b) as complaint by the Presiding Officer, (c) as complaint by a private person. This is because the Presiding Officer is capable of acting as a Presiding Officer as distinct from acting as a Court and is also capable of acting as an individual apart from his official position. If the complaint resulting at the end of Stage I is drawn up in form as a complaint by Court and if such complaint is not valid according to law for any reason, and if it has not been cancelled or with drawn in appeal or revision as provided by law (for example, under Section 476B) even then, it comes, before the Magistrate at Stage II. The Magistrate need not dismiss it on the Sale ground that it cannot be entertained in law as a complaint by Court. It is open for the Magistrate to exercise his powers and jurisdiction under Sections 190(1)(a) and (c), Cri. P.C. and treat it as a complaint made by the Presiding Officer. If he finds that Section 195(1)(b) and (c) and consequently, Section 476, Cri. P. C. do not apply to the offence mentioned in the complaint, the Magistrate can take the case on file under Section 195(1)(a) treating it as one made by an officer presiding over the Court or as a person.
The Supreme Court held in (S) : 1956CriLJ326 that the complaint regarding offences under Section 193, I. P. C. could be taken on file on that basis though there could not be valid complaint by the Returning Officer as he was not a Court. In AIR 1947 All 139 and AIR 1949 All 692 which were approved by the Supreme Court, the officer who filed the complaint was held to be not a 'Court' and still the complaint which was not Valid as one made under Section 476, and Section 195 could be taken on file as complaint made by the Public Officer or treating it as 'information' given by an ordinary person. The decisions of the Lahore High Court in AIR 1933 Lah 884 and AIR 1943 Lah 208 were also approved by the Supreme Court in (S) : 1956CriLJ326 (supra). In AIR 1933 Lah 884 (supra), the complaint was actually made by a, Court namely, the Subordinate Judge. It was held that the Subordinate Judge was competent to make a complaint as a common informet though the complaint is by Court aud that Section 195 and Section 476, Cri. P. C. had no application, as the offence concerned was under Section 225B, I. P. C. which was a section not mentioned in Section 195, Cri. P. C. That decision relied on AIR 1928 Lah 510 (supra), which held that every person including the Presiding Officer of a Court has power to make a complaint as a rule. In AIR 1943 Lah 208 (supra), the complaint was made by a Additional District Magistrate cum-Collector under Section 476 for offence under Section 420 read with Section 511, I. P. C. (apart from Section 193 also) which was not one of the offences mentioned in Section 195 but it was held that any person could make a complaint Regarding the offence under Section 420 read with Section 511, I. P. C. and that there was nothing to prevent Izzat Rai as Revenue Officer making the complaint. Of course, if the complaint was taken on file by the Magistrate in exercise of his power arid jurisdiction under Section 190(1)(c), Cri. P. C. the provisions of Section 190(1), Cri. P. C. would apply and must be given effect to.
If the order that complaint should be filed has become final and if the complaint is taken on file in Stage II, the mere fact that there was illegality committed previously by the person making the complaint would not affect the Magistrate's jurisdiction to take cognizance of the offence on the complaint. It was so held in AIR 1943 Lah 208 (supra), which has been approved by the decision of the Supreme Court in (S) : 1956CriLJ326 (Supra) on the aspect that Section 476, Cri. P. C. does not preclude the Officer presiding over the Court from himself referring a complaint. On a similar aspect of complaint being taken on file under Section 190(1)(b), Cri. P. C. on a police charge-sheet, it was observed in II. N. Rishbud y. State of Delhi, (S) : 1955CriLJ526 as follows: (at page 204)
'While no doubt, in one sense, Clauses (a) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cri P. C....... is attracted.... If, therefore, cognizance is infact taken on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor, AIR 1944 PC 73 and Lumbhardar Zutshi v. The King., AIR 1950 PC 26.'
After taking on file as P. R. Case and holding the P. R. C. enquiry, the Magistrate passes an order of committal to Sessions, Stage III is reached when the Sessions Court takes the case on file as a Sessions Case. When Stage II is over and Stage III is reached in a case like the present i.e., not being on a police charge-sheet, under Section 215, Cri. P. C. commitment can be quashed by the High Court only on a point of law.
20. In the present case Stages I and II are over and Stage III has been reached. The Sessions Case has been taken on file on committal by the Committing Magistrate. The order of the learned Subordinate Judge directing the filing oi a complaint has become final. That was pointed out by our learned brother, Sharfuddin Ahmed, J., in his judgment in Crl. R. C. No. 807 of 1961. After Stage II had been reached, when the learned Principal Munsif-Magistrate was about to start the P. R. C. enquiry in P. R. C. No. 2/1962, the three accused raised the contention that the Court could not take cognizance of ofiences under Section 463 and Section 471 on the ground that the provisions of Section 195(1)(b) were not complied with. The learned Munsif Magistrate dismissed that petition and proceeded with the P. R. C. enquiry. The accused participated in it. The accused did not seek to get the order of the learned Principal Munsiff-Magistrate in M. P. No. 416 of 1962 set aside. It has to be seen whether there is any error on a point of law such as contemplated in Section 215, Cri. P. C.
21. Shri Adavi Ramarao, the learned Counsel for the petitioners has sought to rely on certain decisions in support of his contention that the committal of A-2 and A-3, who were not parties to the suit, is illegal and has to be quashed. In AIR 1932 Mad 129 the case had not reached', the second stage and complaint had not been taken on file by the Magistrate. The order sought to be revised by the High Court was the order of the District Judge, namely, Court complaining against the accused for offence of forgery. The complaint was cancelled on the ground that those -petitioners were only abettors and non-parties. For this purpose, Jackson, J., relied on the decision in ILR 42 Mad 540: (AIR 1919 Mad 7) (FB) but, all the same, observed that the decision of the Bombay High Court in ILR 18 Bom 581 was different. The learned Judge did not consider the question as to whether, if the complaint was actually placed before a Magistrate, the latter could treat it as a complaint made by a Presiding Officer as an officer as distinguished from a Court and could take the complaint on file under Section 190(1)(a) or (c), Cri. P. C.
22. In the later decision of the Madras High Court in AIR 1945 Mad 458 (supra) the second' stage has been reached. A Magistrate had already taken the case on file. Kuppuswaml Ayyar, J., held that the Magistrate had jurisdiction to take it on file under Section 190(1)(c), Crl. P. C.
22a. In AIR 1945 Pat 362 (supra) also the-case had not reached the second stage and the complaint was directed to be withdrawn. Even in that case, it was held that Section 476, Cri. P, C.applied only to cases where there was a bar under Clauses (b) and (c) of Section 195(1), Cri. P. C. and that Section 476 did not apply to cases where there ' was no such bar. It was also held thatthere was no bar in respect of person who was not a party to the proceeding and that therefore, a complaint against such person did not come within the purview of Section 476, Cri P. C. The learned Judges held that the complaint was not competent under Section 476, Cri. P. C. against the pleader who was a non-party. But, they did not consider the question as to whether the com-plaint could be treated by the Magistrate for purposes of taking cognizance under Section 190(1) (a) and (c) as a complaint made by the Presiding Officer of the Court as distinct from the Court or as information' received by the Magistrate from the person under Section 190(1)(c), Cri. P. C.
23. In : AIR1960Pat310 (Supra) also the matter had not reached the second stage. The order of the learned District Judge directing the filing of a complaint was sought to be set aside and was actually- set aside on the ground that the accused was not a party to the suit. The question as to whether complaint could be filed by the learned District Judge as Presiding Officer or as to whether if the complaint were placed before the learned Magistrate, the latter could take it on file under Section 190(1)(a) or (c) treating it ascomplaint by Presiding Officer or as a person or as information received from such person did not arise and was not considered.
24. The above three decisions do not help the petitioners (A. 2 and A.3) in any manner.
25. In the result, we do not find any reasonIto hold that the committal of any of the accused is bad. So, we dismiss this revision petition.