1. This is an application to this Court to exercise its power under Section 476 of the Code of Criminal Procedure to make a complaint in respect of the alleged fabrication of a certain document. In A.S. No. 18 of 1928 a settlement deed, Exhibit B, figured as having been executed by one Govindaswami Naidu. The document bore the alleged signature of Govindaswami in seven places and it appeared to have been attested by five persons and to have been written by a sixth person. The suit out of which the appeal arose was to enforce registration of this document and the plaintiff (now 1st respondent) was Govindaswami's second wife and a substantial beneficiary under the settlement deed, much to the prejudice of the first wife who was the 1st defendant in the suit. Proceedings had taken place before the District Registrar, who had refused to register this document on the ground that its genuineness was not established. The trial Court passed a decree directing that the settlement deed should be registered, relying upon a considerable amount of evidence given before the District Registrar and filed in the Civil Court instead of by fresh examination of the witnesses to prove execution by Govindaswami. When the case came before this Court it was discovered, as the judgment will be found to state, that each of the seven signatures could be ascribed to tracing from one or another of three signatures in another document, an adoption deed Ex. A. The conclusion was accordingly reached that the document must be a forgery and the appeal was allowed and the suit dismissed.
2. In this application we may deal first with the position of the writer and attestors. Section 476, Criminal Procedure Code, deals with offences referred to in Section 195, Sub-section (1), Clause (b) or Clause (c) ' which appear to have been committed in or in relation to a proceeding in that Court,' i.e., the Court whose sanction is sought. Turning then to Section 195(1) and dealing with Sub-clause (b), the offence so far as the attestors are concerned would fall under Section 193, Indian Penal Code, viz., either giving false evidence in a judicial proceeding or, it is suggested, fabricating false evidence for the purpose of being used in any stage of judicial proceeding. So far as the former offence is concerned the objection has been raised that the depositions in question were given not before the Civil Court at all but before the Registrar in the course of his enquiry, and that under Sub-section (2) of Section 195 the term 'Court' as employed in that section does not include a Registrar under Indian Registration Act, 1877. Accordingly the qualification which Sub-clause (b) contains that such offence must be alleged to have been committed in or in relation to any proceeding in any Court has no application, with the result that the matter is not such as this Court would be justified in making a complaint of under Section 476, Criminal Procedure Code. Similarly with regard to fabricating false evidence, Section 193 of the Penal Code itself requires that the false evidence should be fabricated for the purpose of being used in any stage of judicial proceeding, and the corresponding qualification in Sub-clause (b) requires that the fabrication must be with a view to the production of the document in Court: There is no reason to suppose that the primary purpose of the forgery of the document was production in Court or that it would necessarily be produced in Court at all.
3. There remains Sub-section (c) of Section 195, which deals with the act of forgery or using as genuine a forged document. Attached to this is the qualification that the offence, whichever it is, must be alleged to have been committed by a party to the proceeding before the Court and it has been held in a series of cases which one of us has summarised in Ponnuswami Udayar In re (1928) 28 L.W. 769 that the languages of Section 195 must be read in conjunction with the terms of Section 476, so that it is only in the case of offences committed by a party to the proceeding that the Court should take action under the latter section. The consequence, therefore, is that without expressing any view as to the merits of the application against these persons--the writer and the attestors of the document--we must find that the intervention of the Court is unnecessary for their prosecution for the offences specified.
4. There remains the case of the plaintiff in the suit, who is the second widow and the 1st respondent here. This lady took no physical part in the preparation of the document and the action imputed to her is that in the first place she produced or caused to be produced in Court the forged document, and thereby committed an offence under Section 471, I.P.C., by using it as genuine, and in the second place that she gave false evidence in support of its genuineness. As regards the former charge it has been said that an application was made to the Registrar to register the document. It was doubtless produced before him and impounded and at the instance of the plaintiff in the subsequent suit produced before the Court. We think that a prima facie case under Section 471, I.P.C., dependent of course upon proof of the falseness of the document, is made out upon these grounds.
5. As regards the offence of giving false evidence, an offence under Section 193, I. P. C, this lady's position was different from that of the other witnesses because she was examined in the civil suit on commission. The same difficulty that arises with regard to the others therefore under the terms of Sub-section (b) does not exist in her case. When so examined she deposed as follows:
Before the death of my husband, he executed a settlement deed in my' favour. He wrote the deed of settlement in this house at the northern hall. I know when it was written. I was at the doorway leading from the hall to the inner room ten feet off. I saw him signing it (Exhibit B, settlement deed, dated 26th October, 1925, opened from the sealed cover in the presence of the parties and their vakils). He affixed his signature to Exhibit B. He executed it 4 or 5 days prior to his death. The day was Monday. He directed me to bring money for stamp paper for the document. I brought the cash box and placed it with him. He took out money therefrom and gave it. On the day when the settlement deed was written he was in possession of sound mind and powers of disposition. He was ailing from fever. He was ailing from fever for 10 or 15 days.
6. It has been urged that the interest of justice do not require that we should make a complaint in the case of the 1st respondent and in an affidavit it has been alleged that some improper pressure has been placed upon her by the other side by threatening these proceedings in order to induce an unfair division of the property. This, if true, is regrettable but at the same time it cannot conclusively decide whether this is a fit case or not for us to take action under the section. The forgery, if true, was of an iniquitous kind because it was designed to defraud one widow in the interests of the other, who was not merely a co-wife but also her niece. The means adopted to this end were so ingenious as to induce the Court of first instance actually to give a decree. In these circumstances we think that it is expedient in the interests of justice that a complaint should be made against the 1st respondent in the terms indicated above to the Sub-Divisional Magistrate, Tanjore. Under the proviso to Sub-section (1) of Section 476, Criminal Procedure Code, we appoint the Deputy Registrar, Appellate Side, to make the complaint. The settlement deed, Exhibit B in the appeal and the adoption deed, Exhibit A and another document, vis., a plaint containing the admitted signature of Govindaswami, Exhibit L, will be forwarded with the complaint.