Skip to content


Kuldip Singh and anr. Vs. Amar Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 143 of 1957
Judge
Reported inAIR1958P& H166; 1958CriLJ681
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 476
AppellantKuldip Singh and anr.
RespondentAmar Singh
Appellant Advocate Hira Lal Sibal, Adv.
Respondent Advocate Harparshad and; S. Kartar Singh Chawla, Asst. Adv. General
DispositionAppeal dismissed
Cases ReferredIn Nand Lal v. Emperor
Excerpt:
.....under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ' 3. their lordships sent the case back to the district judge, ambala, with the directions that if that court was satisfied that a prima facie case had been made out and that it was expedient in the interests of justice that a complaint should be filed, then it was but right that the matter should be tried in the criminal courts. it was maintained that he had been prosecuting the application in good faith and in the interest of justice, but had no objection to the..........of a receipt purporting to be dated 22-12-1946, for rs. 35,000/-alleged to have been passed by amar singh in favour of the appellant and this receipt was relied upon by the appellant to prove the payment of that sum in a mortgage suit instituted by amar singh on 17-8-1948, in which the appellant was a defendant. after that suit had been decreed and the appeal by kuldip singh in the high court had been dismissed on 9-5-1951, amar singh gave an application to the sub-judge, ambala, on 13-8-1951, under section 476 of the code of criminal procedure.that application had a somewhat chequered history as detailed in paragraphs 4 to 6 of the judgment of the lower court and finally it was held by their lordships of the supreme court in their order d/- 15-2-1956 case reported as kuldip singh v......
Judgment:

S.B. Capoor, J.

1. This is an appeal under Section 476-B of the Code of Criminal Procedure by Kul-dip Singh against the order of the learned District Judge, Ambala, made under Section 476 of the Code directing that a complaint should be filed against the appellant under Sections 471 and 193 of the Indian Penal Code.

2. This complaint is in respect of a receipt purporting to be dated 22-12-1946, for Rs. 35,000/-alleged to have been passed by Amar Singh in favour of the appellant and this receipt was relied upon by the appellant to prove the payment of that sum in a mortgage suit instituted by Amar Singh on 17-8-1948, in which the appellant was a defendant. After that suit had been decreed and the appeal by Kuldip Singh in the High Court had been dismissed on 9-5-1951, Amar Singh gave an application to the Sub-Judge, Ambala, on 13-8-1951, under Section 476 of the Code of Criminal Procedure.

That application had a somewhat chequered history as detailed in paragraphs 4 to 6 of the judgment of the lower Court and finally it was held by their Lordships of the Supreme Court in their order D/- 15-2-1956 case reported as Kuldip Singh v. State of Punjab, (S) AIR 1956 SC 391 (A), that the proceedings taken on that application in the lower Courts were without jurisdiction. A request was made to their Lordships not to allow the proceedings to pend any longer, but was not acceded to. and in the penultimate paragraph of that judgment at page 400, their Lordships observed as follows:

'If the view taken by Mr. Pitam Singh Jain and the High Court is right, then a serious offence of a kind that is unfortunately becoming increasingly common, & which is difficult to bring home to an offender, has been committed against the administration of Justice.'

3. Their Lordships sent the case back to the District Judge, Ambala, with the directions that if that Court was satisfied that a prima facie case had been made out and that it was expedient in the interests of justice that a complaint should be filed, then it was but right that the matter should be tried in the criminal Courts.

4. In pursuance of the above orders, the District Judge issued notice to the parties including the State. The appellant on 19-5-1956, filed a lengthy application in which inter alia it was alleged that the relations between him and Amar Singh were extremely strained and the present proceedings were merely to satisfy the private grudge of Amar Singh; that the District Judge had not tried the original civil suit nor had held any preliminary enquiry and that in the circumstances it was necessary that a preliminary enquiry be held as contemplated under Section 476 of the Code of Criminal Procedure. A reply to that petition was given on behalf of Amar Singh.

It was maintained that he had been prosecuting the application in good faith and in the interest of justice, but had no objection to the preliminary enquiry being held. The learned District Judge in his order dated 8-12-1956, after hearing the counsel for the parties, was of the view that in the circumstances of the present case it was not essential to hold a preliminary enquiry and the question whether there was or was not a prima facie case against Kuldip Singh and whether it was expedient to order his prosecution could be determined on the material on the record. He, therefore, rejected Kuldip Singh's application for the holding of preliminary enquiry and after hearing further arguments passed the order under appeal.

5. In that order after adverting to the observations made during the previous proceedings with regard to the genuineness or otherwise of the receipt Exhibit D. 1 and also relying on his own observations, the learned District Judge 'held that there were prima facie grounds for believing that Kuldip Singh in filing this receipt in the civil suit in order to prove payment of Rs. 35,000/-to Amar Singh had committed an offence under Section 471 of the Indian Penal Code, and in supporting that receipt by his own statement in Court, a further offence under Section 193 of the Indian Penal Code.

He also considered the argument that on account of delay in the case, the prosecution was not expedient in the interest of Justice, and that argument was also repelled. Finally he considered the matter so serious that he 'concluded that it was expedient in the interest of justice to order the filing of the complaint.

6. In appeal the question of delay which has taken place since the application under Section 476 of the Criminal Procedure Code was filed on 13-8-1951, has again been raised and the learned counsel for the appellant referred to certain cases in which even the delay of few months in filing a complaint under Section 476 of the Criminal Procedure Code was held to be fatal, for instance Narain Singh v. Emperor. AIR 1948 All 287 (B).

He also relied on certain observations of their Lordships of the Supreme Court in Machan-der v. The State of Hyderabad, (S) AIR 1955 SC 792 at p. 794 (C). In that case the appellant was being tried for murder and the case against him had been pending for more than 4 years when it came up before the Supreme Court and it wasfound that there had not been sufficient compliance with the provisions of Section 342 of the Code of Criminal Procedure.

Their Lordships held that in the circumstances a retrial should not be ordered. These observations cannot, however, furnish any guide in the present case. The argument on the basis of delay was rejected by their Lordships of the Supreme Court in (S) AIR 1956 SC 391 at p. 400 (A). The learned counsel for the appellant cannot derive any advantage from the delay which has taken place since, because, as far as can be seen, the case has been in proper course of action in the District Court and it is not even alleged that Amar Singh respondent has been responsible for any delay.

7. The next and more important contention on behalf of the appellant was that after the District Judge had issued notice to the parties and the prayer made by Kuldip Singh for holding a preliminary enquiry was even supported by Amar Singh, the learned District Judge, who had not been concerned with the civil suit at any stage, should have made a preliminary enquiry.

Under Section 476 of the Code of Criminal Proce-dure, whether a preliminary enquiry should be held or not, is within the discretion of the Court. (Reliance was placed On Seshayya v. Subbarayudu. AIR 1925 Mad 1157 (D), in which it was held that in cases under Section 193, before taking action against a person for fabrication of false evidence, it is necessary that he should be given an opportunity to substantiate his allegations.

In AJodhya Prasad Sahu v. Emperor, AIR 1920 Pat 165 (E), it was held that although the holding of an inquiry preliminary to the passing of an order under Section 476 is discretionary, yet. when such an inquiry is started, whether it be a formal or informal inquiry, the Court should carry the investigation to completion. On the other hand in Mohammad Tahir v. Emperor, AIR. 1941 Lah 52 (F), it was held that the Court need not order a preliminary enquiry if it does not think it necessary to do so.

As a matter of fact the section itself leaves to the discretion of the Court whether a preliminary enquiry should be made and if so what should be its nature. Everything depends on the circumstances of the particular case. In the present case it was not the effect of any oral statement but the genuineness of a particular document which was in question. The lower Court not only had the document before it, but also the I findings of a number of Courts in which the genuineness of that document had been discussed.

On that particular matter, therefore, further enquiry was hardly necessary and the learned counsel for the appellant has been unable to suggest in what direction that enquiry should have been pursued.

8. The main contention Is that the present proceedings are being pursued by Amar Singh merely in order to satisfy his private grudge and that this aspect of the matter was not considered by the learned lower Court, and this could have been emphasised before the Court by leading evidence. No doubt it has been held in certain cases, for instance, in Nand Lal v. Emperor, AIR 1937 Lah 867 at p. 868 (G), and in Kedarnath v. Kailashnath, AIR 1955 Madh-B 42 at P. 43 (H), that if the prosecution is sought merely to satisfy the private grudge of a party, it should not be considered expedient in the interest of justice.

Here again no hard and fast rule can be laid down and each case must be decided on its own facts. In Nand Lal v. Emperor (G), the| statement alleged to be false bore on the solvency of the witness which point did not affect the result of the suit and was not hence material. The question about the solvency was put at the instance of one Munna Lal, who was found to be actuated by personal motive in prosecuting the petitioner. In the present case whether the re-ceipt was genuine or not was directly an issue in the suit between the parties and the sum involved was a very large one.

It was not only a private party which was, aggrieved but, as emphasised by their Lordshipsl of the Supreme Court, if the view of the lower Court as to the receipt not being genuine was right, a serious offence had been committed against the - administration of justice. The State was party to the proceedings before the Supreme Court, notice was given to it by the District Judge and appeal has been contested by the State in this Court also.

In the circumstances the question of any private grudge between Amar Singh and the appellant is not of any consequence and no preliminary enquiry as regards this matter was at all necessary.

9. I find therefore no force in this appealand would dismiss it but make no order as tocosts.


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