1. Notices have been issued to Sheo Narain Jafa, a Pleader of Budaun, Ghasa Singh and Nathu Lal to show cause why a complaint should not be filed against them in a Criminal Court charging them with having committed offences under Sections 193, 120 (b) and 209, read with Section 109 of the Indian Penal Code. Notice was also issued to Makhan Singh to show cause why he should not be prosecuted for having committed offences punishable under Sections 120 (b) and 209, read with Section 109, of the Indian Penal Code.
2. These applications arose out of F. A. No. 147 of 1927, which was heard and decided by a Bench of this Court on the 22nd January, 1931. That Bench made very strong observations against all the four respondents. The Court found in the civil appeal that there had been a conspiracy by all of them to deprive one Manohar Singh of his property, and, in accordance with that finding avoided a deed of gift executed by Manohar Singh in favour of Nathu Lal and Makhan Singh, and also a sale-deed executed by the same parties. The Court also set aside the decree of the 12th November, 1923 in Suit No. 201 of 1923, which was a suit by Nathu Lal and Makhan Lal against Manohar Singh for a declaration that the plaintiffs were entitled to possession of the property comprised in the said sale deed. The facts arising in this case are fully set out in the judgment of this High Court in F. A. No. 147 of 1927, and it is unnecessary for us to detail fully those facts again. We have to consider whether there is a prima facie case established against all or any of the respondents which would make it obligatory on us to order their prosecution under Section 476, coupled with Section 195, of the Code of Criminal Procedure. Counsel appearing on behalf of Sheo Narain Jafa did not take any preliminary objection : but Counsel on behalf of the others have objected that this Court has no jurisdiction to order the prosecution of their clients. The objection is based upon e. 195 of the Code of Criminal Procedure. That section enacts that 'no Court shall take cognizance, (Sub-clause b), of any offence punishable under any of the following sections of the same Code, namely, se. 193, 194, 195, 196, 199, 200, 205, 206, 217, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in or in relation to, any proceedings in any Court except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.' With the exception of Section 120 (a), the sections comprised in this notice are included in Sub-clause (b) of Section 195. Clause (4) also bring in the Clause (1) (b) the charge under Section 120 (b). It is clear that the alleged offences were not committed in this Court, and it is contended therefore that this Court has no jurisdiction to order the prosecution of the respondents. It is, however, to be noted that the sub-clause does not apply merely to offences committed in 'such Court', but apply also to offences 'committed in relation to any proceeding in any Court'. It is obvious that the offences charged under Section 209, read with Section 109, was not committed even in the trial Court. It cannot be denied that that offence was committed in relation to the proceeding in the trial Court, It is, therefore, in our opinion also clear that the offence under those sections was also committed in relation to the appeal which was heard in this Court. There is no reason to construe narrowly the words 'in relation to'. Equally the offence of perjury, although it was undoubtedly committed in the trial Court, must, in our view be held to have been committed in relation to the appeal in this Court. A person committing perjury in a trial Court must be held to have intended that his perjury should not only influence the proceedings in the trial Court but also subsequent proceedings which might take place if either party to the case in the trial Court took the matter to appeal.
3. Further, on this point it is not denied that there was, before Act V of 1898 was passed, a jurisdiction in the High Court to order prosecutions in a matter like this. The equivalent section of Act X of 1882 undoubtedly gave jurisdiction to this Court to order prosecutions. The High Court has also directed similar prosecutions even prior to the specific enactment of Act X of 1882. There was, therefore, at the time of the passing of Act V of 1898 an existing jurisdiction in the High Court to order such prosecutions. Therefore, in construing the material Section of Act V of 1898 the cardinal rule of construction as to jurisdiction must be taken into account, and that is, that no existing jurisdiction of a supreme Court can be taken away unless the language used in the enactment which purports to take that jurisdiction away is in the clearest possible terms. There can have been no object in cutting down the jurisdiction of the High Court in such matters, and at any rate, it cannot possibly be said that Section 195 (b) takes away in clear terms the undoubted jurisdiction which existed in the High Court prior to the passing of that Act. We hold, therefore, that this Court has jurisdiction to make the orders.
4. We have very carefully and anxiously considered the case as against Sheo Narain Jafa. He is an officer of this Court, and he has been charged in clear terms by a Bench of this Court of which one of us was a member, with conduct seriously reflecting upon him both in his capacity as a private individual an officer of this Court, and a member of the legal profession. We are of opinion that the observations not only of the Bench of this Court, but of the two lower Courts before whom this matter had come were entirely justified. His action, for example, in filing an application which he knew could not possibly succeed, unless material facts were hidden from the Court for the appointment of Manohar Singh as guardian of his infant children when those infant children had on entirely proper grounds brought an action against him for partition, was an action such as no honest lawyer could possibly have advised his client to take. The fact that in that action Mr. Sheo Narain Jafa was assisted by another practitioner of Budaun named Iqtidar Alam, does not make Mr. Jafa's conduct any the less serious. We have carefully examined all the facts of this case as regards Sheo Narain Jafa. We are satisfied that a consideration of those facts raises the very gravest suspicion against Sheo Narain Jafa of being guilty of the offences with which it is sought to charge him. But as he was not actually a party to the sale-deed itself, nor was he at any rate openly, a party to the declaratory Suit No. 201 of 1923 we feel that there is not enough evidence which would justify a Criminal Court in coming to a conclusion adverse to Sheo Narain Jafa. We, therefore, discharge the notice as regards him with respect to all these sections of the Indian Penal Code.
5. The matter, however, stands on a different footing with regard to the charges against the other three respondents. We do not wish to say anything in this matter to prejudice their trial in the criminal Court. We, therefore, confine ourselves to saying that, in our view, there does exist a prima facie case against them. We, therefore, record a finding under Section 471 (1) of the Code of Criminal Procedure that it is expedient in the interest of justice that an enquiry should be made into the said offence, and direct the Registrar of this Court to take the necessary steps for the filing of a complaint against the three respondents charging them with the offences enumerated above with regard to teach. With regard to the charges relating to Section 193 of the Indian Penal Code we direct the filing of a complaint against Ghasa Singh with respect to the following two statements: (a) 'Makhan Singh has purchased this property for himself.' (page 180,line 5 of the paper book in F. A No. 147 of 1927). (b) 'Babu Sheo Narain and I are not the owners of the sale in dispute.' (page 185, line 46 of paper book in F. A. No. 147 of 1929). With regard to Nathu Lal we direct a complaint to be made against him for the following statements;---(a) 'Out of the money left with me at the time of this sale I spent Rs. 1,400 in the appeal.' (page 51 line 17 of paper-book in F. A. No. 147 of 1927), (b) 'I paid the money left with me for Sundar Lal, Sheonarain, Bhopal Rai and Natra Behari Lal to them. I subsequently took a clear receipt from Manohar.' (page 51, line 20 of paper book in F. A No. 147 of 1927), (c) 'Nathu Lal and Makhan Singh are the owners of the property.' (Supplementary paper book page 44, line 3.)
6. The said complaints are to be sent to the District Magistrate of Budaun. Together with the complaints will be sent the original record of Suit No. 63 of 1926 the subject-matter of F. A. No. 147 of 1927, a copy of the printed paper book containing the evidence, a copy of the judgment of this Court and a copy of the notices issued to the three respondents.
7. With regard to costs, we allow no costs to Sheo Narain Jafa. The applicants were, abundantly justified in making the application against him. The applicant will have her costs of the application against the other three respondents.