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Girwar Prashad and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.306
AppellantGirwar Prashad and anr.
RespondentEmperor
Excerpt:
.....sections 195, 476 and 478 - false suits--fraudulent decrees--forgery--use of forged documents--offences committed before courts passing decrees--commitment ordered by executing court, legality of. - - the munsif, who made the order complained of in this case, was not the officer who tried the case in respect of which proceedings against the petitioner have been ordered to be taken. we have, as is only due to such high and learned authority, given our best consideration to these judgments, but we cannot help feeling that the words 'brought under its notice',which occur in section 476, and also in section 478, may not have been sufficiently before the minds of the learned judges who decided those cases. both in the calcutta and madras cases, the learned judges appear to have felt the..........against the petitioner have been ordered to be taken. if there was any offence, it was not an offence committed before the munsif, who made the order, or brought under his notice in the course of a judicial proceeding.' this same case was again considered by the calcutta high court in, begu singh v. kinj-emperor 34 c. 331. the learned chief justice opens his judgment with a reference to the case, in the matter of krishna gobind dutta 9 c.w.n. 859, and says that the practical question which the judges had to consider on the reference before them was whether the case. in the matter of krishna gobind dutta 9 c.w.n. 859, had been rightly decided. the case was heard by a full beach and the majority of the judges adhered to the view that the summary powers, conferred by section 476,.....
Judgment:

1. This is an application asking the Court to quash a commitment which has been made by the Munsif of Haveli, Aligarh, acting under Section 478 of the Code of Criminal Procedure. The point of law contended before us is that the Munsif had no jurisdiction to make the commitment. It appears that on the 8th of January 1907, a suit was instituted by one Ram Lal, in the Court of the Munsif of Hathras. It was based on two Promissory Notes said to have been executed by Narsingh Das. Narsingh Das did not appear to defend the suit and a decree was made ex parte against him by the Munsif of Hathras. Proceedings were then taken to execute the decree and as Narsingh Das resided within the jurisdiction of the Munsif of Haveli, the proceedings were transferred to the Munsif of Haveli. In that Court, a warrant of arrest was taken out against Narsingh Das. He was arrested and put into Jail. From Jail he applied to the Munsif of Hathras alleging that the summons in the original suit had never been served upon him. The process-server, who was charged with the serving of that summons, was examined and the result of the enquiry was that the application by Narsingh Das to have the case reopened was rejected. He remained in Jail for six months and the proceedings terminated in April 1903. In May 1908, a suit was filed in the Court of the Munsif of Khurja by one Karan Singh against this same Narsingh Das and a decree ex parte obtained against him on the 29th of June 1908. In this case, too, the execution proceedings, for the same reason as before, were transferred to the Munsif of Haveli. A warrant of arrest was issued and the peon, who was charged with the execution of the warrant, reported on the 8th of August 1908, that the judgment-debtor was arrested on the 6th of August, but was rescued by his friends and escaped from custody. The Munsif of Haveli, then, began to enquire into the matter, acting under Section 343 of the Code of Civil Procedure (XIV of 1882). In the course of the enquiry, one Tulsi Ram appeared as a witness and he deposed to the fact that the original summons, which issued in the suit instituted by Ram Lal, had been served upon Narsingh Das. He also deposed to the alleged rescue and escape, which took place within the jurisdiction of the Munsif of Haveli. The Munsif of Haveli came to the conclusion that Tulsi Ram had given false evidence, and began an enquiry, under Chapter XXXV of the Code of Criminal Procedure, regarding the false evidence supposed to have been given by Tulsi Ram. The enquiry against Tulsi Ram appears to have led the Munsif of Haveli much further than he anticipated He came to the conclusion in the course of his enquiry that both suits, namely, the suit before the Munsif of Hathras and that before the Munsif of Khurja, were false suits, and that Ram Lal and Karan Singh were mere figure heads, acting for and under the direction of Girwar Prashad. He then entered upon a long enquiry as to the offences, which appeared to him to have been committed by Girwar Prashad and Ram Lal, and in the end be committed Girwar Prasad and Ram Lal to take their trial before the Court of Session at Aligarh for offences under Sections 210/109, 467/109, 471/109 and 466, Indian Penal Code. It is this commitment which we are asked to quash on the ground that Section 476 of the Code of Criminal Procedure, (and Section 478 which follows it), contemplates immediate action being taken by the Court, before which the offence or offences are committed and also on the ground that the Munsif had no jurisdiction to enquire into an offence under Section 225 B, Indian Penal Code, and, therefore, the enquiry which he started against Tulsi Ram and all that followed from it was without jurisdiction. The latter point was not pressed, and we think rightly not pressed. With regard to the first point raised, namely, that Section 476 contemplates immediate action being taken by the Court, before which offence is committed, reliance is placed upon certain precedents of the Calcutta and Madras High Courts. The first case relied on was: In the matter of Krishna Gobind Dutta 9 C.W.N. 859. In that case, a person had brought a suit in the Court of the Munsif and did not appear on the day appointed for hearing and his suit was dismissed for default. He then applied that the suit might be restored under Section 103, C.P. Code, and gave a reason for non-appearance, which the Munsif disbelieved and in consequence dismissed the application. He then appealed to the District Judge who took the same view as the Munsif that false evidence had been taken and dismissing the appeal wrote to the Munsif, directing him to take proceedings against the plaintiff for having committed the offence of perjury. The Munsif called upon the plaintiff to show cause, but before he could deal with the case he was transferred and the matter came on for hearing before his successor in office, who came to the conclusion that a prima facie case had been made out against the plaintiff, and sent him and all the papers connected therewith to the nearest Magistrate for trial. The learned Judges held that upon these facts the case did not fall within Section 476, Criminal Procedure Code. They continued: The Munsif, who made the order complained of in this case, was not the officer who tried the case in respect of which proceedings against the petitioner have been ordered to be taken. If there was any offence, it was not an offence committed before the Munsif, who made the order, or brought under his notice in the course of a judicial proceeding.' This same case was again considered by the Calcutta High Court in, Begu Singh v. Kinj-Emperor 34 C. 331. The learned Chief Justice opens his judgment with a reference to the case, In the matter of Krishna Gobind Dutta 9 C.W.N. 859, and says that the practical question which the Judges had to consider on the reference before them was whether the case. In the matter of Krishna Gobind Dutta 9 C.W.N. 859, had been rightly decided. The case was heard by a Full Beach and the majority of the Judges adhered to the view that the summary powers, conferred by Section 476, Criminal Procedure Code, can only be exercised by the Judge who tries the case in the course of the trial of which the alleged offence is committed, and such power is exercisable only at or immediately after the conclusion of the trial. Geidt, J., agreed with the other learned Judges that the terms of Section 476 indicated that the desirability of prosecuting the offender must be present to the mind of the Court during the proceeding, in which the offence was committed or brought to its notice, but he added that no universal rule could be laid down that in no case can the order for prosecution be made by an officer other than the officer before whom offence was committed. We have, as is only due to such high and learned authority, given our best consideration to these judgments, but we cannot help feeling that the words 'brought under its notice', which occur in Section 476, and also in Section 478, may not have been sufficiently before the minds of the learned Judges who decided those cases. In the first of the two cases, namely, the case of In the matter of Krishna Gobind Dutta, 9 C.W.N. 859, we would fully agree that the case was not one which fell within the provisions of Section 476, Criminal Procedure Code. There was before the Munsif, who made the order under Section 476, no judicial proceeding of any kind. He merely acted upon some, written communication received from the District Judge, and it appears to have been this and this only, upon which ho took the action which he did. We have no doubt that it was never the intention of the Legislature that in a case of that kind, action should be taken under Section 476. There must be a judicial proceeding before the Court and it must be in the course of that judicial proceeding that some supposed offence, referred to in Section 195, Criminal Procedure Code, is either committed or brought under its notice. The words, 'brought under its notice', appear to us to be quite wide enough to cover an offence which may have been committed in another form and on some previous occasion, but it must be an offence brought under the notice of the Court enquiring and, making an order under Section 476. We prefer to adopt the interpretation placed upon the section by Mr. Justice Geidt and we agree with the illustration which he puts at page 582 of the report of the case in question. The learned Counsel referred us also to the case of Rahimullah Saheb v. Emperor 31 M. 140. This was also a case decided by a Full Bench, in which it was held (Miller, J., dissenting) that it was the intention of the Legislature in enacting Section 476 that an order under the section should be made either at the close of the proceedings or so shortly after, that it may reasonably be said that the order is part of the proceeding. Both in the Calcutta and Madras cases, the learned Judges appear to have felt the difficulty of there being any necessity of Section 195, if months after the trial, a Court can take action under Section 476, and this appears to have influenced them a good deal in the results at which they have arrived. In this Court, the view has, for long past, been taken that there is this wide difference between sections, 195 and 476, that under the former section responsibility for the prosecution really rests upon the private person to whom sanction is given. In the latter, it rests upon the Court which orders the prosecution. If this view be correct, and we see no reason to doubt it, there is room in the Statute Book for both Sections 195 and 476. The learned Chief Justice, in the course of his very learned judgment, observes that it is no doubt true that Section 476 may be construed, without doing violence to any of its provisions, so as to warrant an order being made under the section after the close of the proceedings, in which offence is alleged to have been committed or brought to the notice of the Court, and it is worthy of note that he prefaces his opinion with an inclination to think that the Magistrate, in the case before him, was exercising the powers conferred by Section 195 of the Code of Criminal Procedure, and that the provisions of Section 476 were not present to his mind at all. We agree fully with all that has been laid down in the rulings, cited to us, as to the intention of the Legislature and the desirability that any action taken under Section 476 should be as prompt as possible but Section 476 appears to us to lay down more than one starting point from which such action should be taken. In the case before us, the learned Munsif, who passed the order of commitment under Section 478, lost no time in making his enquiry.

2. A Judicial proceeding was in full course before him. In the course of it, it was brought to his notice that an offence had been committed and he then and there held an enquiry into that offence and followed it up until he passed his order of commitment. It appears to us that the learned Munsif in this case acted with greater discretion in the course which he took than if he had given an order for sanction under Section 195 and put into the hands of the opposite party a sanction for prosecution which might or might not have been made a means of exacting blackmail, and might have been pursued or not, at the whim of the person into whose hands it was given. The offences, supposed to have been committed, if committed, are offences of a very serious nature. We, of course, pronounce no opinion whatever as to whether they were committed. We have not considered this point at all, but in any case, it is most desirable that the question raised by the Munsif should be thoroughly sifted by a proper Court, and in this case it will be the Court of Session which has to decide the matter. There would be no advantage, but there would be serious hardship to every are concerned, if we quashed this commitment and ordered a fresh enquiry by a competent Court. We, however, find no difficulty in holding that the commitment is not bad on a point of law and we dismiss the application.


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