Skip to content


Dwarka Prasad Vs. Makund Sarup - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1926All21; 90Ind.Cas.290
AppellantDwarka Prasad
RespondentMakund Sarup
Excerpt:
- - and (3) that the order under section 193 is bad because the passages in the applicant's evidence alleged to be false are not quoted in the judgment. it seems to me that this has modified the situation very materially, and that there is now strong ground for holding that the legislature intended section 476 to be co-extensive on its scope with clauses (b) and (c) of section 195(1). clause (a) of section 195 is not concerned with courts, and section 476 does not refer to it. the case is almost precisely parallel to emperor v. 2. as regards the third ground, i think it would have been better if the learned judge had quoted the passages in respect of which he made a complaint in his judgment instead of merely saying that they were evident on an examination of the applicant's evidence......forgery, and knowingly producing a forged document, this section was only applicable where the offence was committed by a party to any proceeding. these words were not repeated in section 476, but the madras view was that they were implied, and the calcutta high court took the same view. on the other hand the bombay high court in emperor v. waman dinkar kelkar air 1919 bom 403, the oudh court in ejaz ali khan v. king-emperor air 1922 oudh 220 and this court in emperor v. ganga ram air 1918 all 382 took the view that the conditions of section 195 were not incorporated in section 476, and that the latter section applied to any of the offences enumerated in section 195 whether committed by a party to a proceeding or not. the question is whether the position is affected by the extensive.....
Judgment:

Daniels, J.

1. This is an application for revision of an order of the learned District Judge of Bulandshahr upholding a complaint of an offence under Section 471, I.P.C. made by the Munsif of Ghaziabad against; the applicant Dwarka Prasad. The learned District Judge in upholding the Munsif's order also added a charge under Section 193 and the applicant asks that his application be treated as an appeal. Three points have been urged:

(1) That Section 476, Criminal P.C. is inapplicable to the offence under Section 471, I.P.C. because the alleged offence was not committed by a party to the suit but by a witness; (2) That the order should not have been passed without a preliminary inquiry; and (3) That the order under Section 193 is bad because the passages in the applicant's evidence alleged to be false are not quoted in the judgment. The first point is one on which there was a difference of opinion between the different High Courts prior to the amendment of the Code in the year 1923. The Madras High Court in Govinda Iyer v. Rex AIR 1919 Mad 7 took the view that Section 476 in speaking of 'any offence referred to in Section 195' incorporated the condition laid down in Section 195. As regards the offences enumerated in Clause (c) of Section 195, namely forgery, and knowingly producing a forged document, this section was only applicable where the offence was committed by a party to any proceeding. These words were not repeated in Section 476, but the Madras view was that they were implied, and the Calcutta High Court took the same view. On the other hand the Bombay High Court in Emperor v. Waman Dinkar Kelkar AIR 1919 Bom 403, the Oudh Court in Ejaz Ali Khan v. King-Emperor AIR 1922 Oudh 220 and this Court in Emperor v. Ganga Ram AIR 1918 All 382 took the view that the conditions of Section 195 were not incorporated in Section 476, and that the latter section applied to any of the offences enumerated in Section 195 whether committed by a party to a proceeding or not. The question is whether the position is affected by the extensive amendment of these two sections made by the amending Act of 1923. Prior to the amendments Section 195 and Section 476 referred to two different things. Section 195 required a sanction or complaint by the Court for the prosecution of certain offences, Section 476 gave the Court a quite independent power to direct prosecution on its own authority and send the case for trial on the merits to a First Class Magistrate. As the Code now stands both the sanction by a Court and the direct order by a Court directing a prosecution are done away with and the procedure in all cases is one of complaint by the Court. Section 195 describes the offences in respect of which a complaint is necessary, and Section 476 prescribes the procedure under which a complaint is to be made. It seems to me that this has modified the situation very materially, and that there is now strong ground for holding that the legislature intended Section 476 to be co-extensive on its scope with Clauses (b) and (c) of Section 195(1). Clause (a) of Section 195 is not concerned with Courts, and Section 476 does not refer to it. This, however, does not conclude the matter. The case is almost precisely parallel to Emperor v. Ganga Ram AIR 1918 All 382 and, as Mr. Justice Piggott pointed out in that case, the question so far as the proceeding before him was concerned was mainly academical. Section 195 is a restrictive section, and there is nothing in that section and Section 476 to prevent the Munsif from making a complaint under the ordinary law in respect of the offence under Section 471, I.P.C., which he found to have been committed before him. As regards the second ground argued before me, this was not a case in which a preliminary inquiry was absolutely essential before a complaint could be filed. The charge against the applicant is that he filed a forged receipt in a suit in the Munsif's Court brought by Mukand Sarup against Mt. Parbati and others to support the defence taken by the defendants, and asserted that he had paid to the plaintiff a sum of Rs. 1,035 on behalf of the defendants, which, in fact, he had not paid. The finding of a competent Court that a document is a forgery, or that a witness has committed perjury before it, has always been considered sufficient prima facie ground for an order under Section 195 or Section 476. It is urged that the applicant being a witness in the case had no opportunity of cross-examining the witnesses on the other side. This is no doubt true, but the witnesses were cross-examined on behalf of the defendants in the case who had exactly the same interest as the applicant in upholding the genuineness of the receipt.

2. As regards the third ground, I think it would have been better if the learned Judge had quoted the passages in respect of which he made a complaint in his judgment instead of merely saying that they were evident on an examination of the applicant's evidence. There is, however, no doubt as to what those statements were. They are in the first place the statement that the applicant paid Rs. 1,035 to Mukand Sarup at various times; and secondly the statement that in the end after all these payments, Mukand Sarup gave the applicant a receipt, and that this was the receipt which he produced in Court in Suit No. 1385 of 1923.

3. There is, therefore, no ground for interfering with the order of the Court below and the application is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //