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In Re: Kallaru Ramalingam and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in31Ind.Cas.653
AppellantIn Re: Kallaru Ramalingam and anr.;In Re: Thupili Subbramayya and anr.
Respondent;
Cases ReferredAbdul Khadar v. Meera Saheb
Excerpt:
criminal procedure code (act v of 1898) sections 476, 195 - forgery, not by party to any judicial proceeding--proceedings, if maintainable. - .....to in section 195, then it is difficult to give any meaning to the words in sections 476 and 478 'or brought under the notice of any civil, criminal or revenue court in the course of a judicial proceeding'. but the case of girwar prasad v. emperor 1 ind. cas. 306 : 6 a.l.j. 392 : 9 cri. l.j. 219 is an instance of an offence which was brought to the notice of a civil court in the course of a judicial proceeding, and yet, without being an offence committed in relation to any proceedings in that court, was an offence affecting the administration of justice.4. it may also be observed that when, as here, a person who is not a party to any proceeding in any court, is accused of committing forgery in respect of a document, no sanction is required before he is prosecuted.5. i, therefore,.....
Judgment:

Abdur Rahim, J.

1. These are applications to set aside an order under Section 476 Criminal Procedure Code. The order was passed by the District Munsif in the course of a certain execution proceeding in his Court. It appears that the property attached in execution of the decree was alleged to have been sold by the judgment-debtor to a third person and the vendee put in a claim. The consideration for the deed of sale was two promissory notes which the learned District Munsif had reasons to suspect were forgeries. The claimant did not appear in support of his claim, but the District Munsif examined the executant of the promissory notes as well as an attestor of one of the promissory notes and he then cams to the conclusion that the petitioners, i.e., the executant of the notes and the attestors should be prosecuted, as he was of opinion that the notes were forged documents. The question before us is whether Section 476 applies at all to this matter. The section says that any Civil, Criminal or Revenue Court may order prosecution with reference to any offence referred to in Section 195 and committed before it or brought under its notice in the course of a judicial proceeding. The question we have to decide is whether the terms of that section are satisfied where, as here, one of the offences mentioned in Section 195 of the Criminal Procedure Code has been committed but not by any party to any proceeding before the Court. The offences charged fall within Clause (c) to Section 195, which says no Court shall take cognizance of any offence described in Section 463 or punishable under Sections 471, 475 or Section 476 of the same Code, when such offence has been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except with the previous sanction,' etc. In this case, the offence of forgery, if one was committed, was not committed by any 'party to any proceeding' before the Court executing the decree, and if that qualification is to be imported into Section 476 the District Munsif had no jurisdiction to make the order in question. The decisions on the point are conflicting. In Calcutta, the opinion is divided. The view laid down in Akhil Chandra De v. Queen-Empress 22 C.L 1004 is that Section 476 must be construed as being entirely self-contained and that we are only to refer to the offences mentioned in Section 195 without any of the restrictions or qualifications that are to be found there as to the circumstances in which the offence is committed. But apparently a different view prevailed in the cases reported as Dharmadas Kawar v. Emperor 7 C.L.J. 373 : 7 Cri. L.J. 340 and as Jadunandan Singh v. Emperor 4 Ind. Cas. 710 : 11 Cri. L.J. 37. I may mention that the case in 22 Calcutta was under Section 478, Criminal Procedure. Code, and not 476, Criminal Procedure Code; but so far as the question before us, is concerned, it does not appear that that would make any difference. The cases in 7 Calcutta Law Journal and 37 Calcutta are both under Section 476 and the learned Judges in the latter case seem to have gone rather fully into the matter and considered the authorities on the point. In this Court, there is only one decision which is directly in point, viz., that reported as Abdul Khadar v. Meera Saheb 2 Weir 174 where the learned Judges expressly lay down that Section 476 applies only to the offences mentioned in Section 195 if they are committed by the person or in the circumstances mentioned therein. There is, however, a dictum of Sankaran Nair, J., in a Full Bench case in Aiyakannu Pillai v. Emperor 1 Ind. Cas. 597 : 9 Cri. L.J. 41. There the learned Judge observes that the operation of Section 476 is not confined by the restrictions mentioned in Section 195. That was a mere obiter dictum unnecessary for the decision of the question before the learned Judges. Two decisions of the Bombay High Court have been brought to our notice, viz., those reported as In re Devji 18 B.M 581 and as In re Keshav Narayan 17 Ind. Cas. 720 : 14 Bom. L.R. 968 : 13 Cri. L.J. 848. Both support the view in favour of the wider interpretation of Section 476. We have also been referred to a case in Girwer Prasad v. Emperor 1 Ind. Cas. 306 : 6 A.L.J. 392 : 9 Cri. L.J. 219, but that case is not a clear authority in support of either the one or the other position. The question is certainly not free from difficulty, but we thought we could dispose of it at once as it was fully argued before us. On the whole, I am inclined to follow the view taken in 15 Madras. One circumstance which does not appear to have been noticed in any of the reported decisions, is that some guidance as to the scope of Section 476 is afforded by the heading to Chapter XXXV, which shows the class of offences, which is intended to be dealt with in the chapter in which Section 476 occurs. The heading of the Chapter is proceedings in case of certain offences affecting the administration of justice.' If the wider interpretation contended for on behalf of the Crown were to be adopted, then the section would apply to cases which have no relation whatever to the administration of justice. It might be, for instance, that a forgery was committed and brought to the notice of a Court and yet the forged document was not intended to be used and was never in fact used in connection with any proceeding. I may say that if the language of Section 476 was clear, we would be bound to give effect to it apart from the heading of the chapter. But the language not being clear to show how much of Section 195 is to be imported, I felt myself justified in deriving light from the description of the chapter which begins with Section 476. I may observe that the learned Judges who decided the case of Akhil Chandra De v. Queen-Empress 22 C. 1004 remarked that if the narrower interpretation of Section 478, Criminal Procedure Code, were upheld, no meaning could be given to the words of that section--the same words occur in Section 476, Criminal Procedure Code, as well--or brought under its notice in the course of a judicial proceeding.' With all respect to them, it seems to me that they are under some misapprehension as to this. If an offence of the nature described, is committed by a party to a proceeding, the Court before whom the proceeding lay, can give sanction under Section 195; but suppose that every matter is brought under the notice of another Court in the course of another judicial proceeding to which the offender is not a party, then the use of Section 476 comes in and the Court under whose notice it is brought can make an order under that section.

2. I, therefore, hold that the order in both the cases must be set aside.

Spencer, J.

3. The question is full of difficulty. In In re Keshav Narayan 17 Ind. Cas. 720 : 14 Bom. L.R. 968 : 13 Cri. L.J. 848, Batchelor, J., observes 'all that is required by Section 476, is that such an offence as is there (i.e., in Section 195) referred to, should be either committed before the Court or brought under its notice in the course of a judicial proceeding.' I think that as far as possible, we should give effect to the plain wording of the section and not introduce anything that is not there. But in this case if we give the fullest scope to the words brought under its notice in the course of a judicial proceeding,' it will have the effect of giving Courts a very wide power to arrest and send persons to trial even when the offences have no direct connection with any proceeding in Court, as for instance, where some statement is elicited in the cross-examination of a witness as to a previous act of forgery committed by him. In the Indian Penal Code, forgery comes under the class of offences relating to documents and not under the class of offences against public justice, which includes offences under Sections 191 to 229. In this way, the powers of Courts will be enlarged beyond the scope of the heading of Chapter XXXV, Criminal Procedure Code, in which Section 476 occurs. There is also considerable force in the observation in Akhil Chandra De v. Queen-Empress 22 C. 1004 that if Section 476 is to be read as qualified by the circumstances referred to in Section 195, then it is difficult to give any meaning to the words in Sections 476 and 478 'or brought under the notice of any Civil, Criminal or Revenue Court in the course of a judicial proceeding'. But the case of Girwar Prasad v. Emperor 1 Ind. Cas. 306 : 6 A.L.J. 392 : 9 Cri. L.J. 219 is an instance of an offence which was brought to the notice of a Civil Court in the course of a judicial proceeding, and yet, without being an offence committed in relation to any proceedings in that Court, was an offence affecting the administration of justice.

4. It may also be observed that when, as here, a person who is not a party to any proceeding in any Court, is accused of committing forgery in respect of a document, no sanction is required before he is prosecuted.

5. I, therefore, agree in the absence of any conflicting decision of this Court, with my learned brother's decision, which finds Support in Abdul Khadar v. Meera Saheb 15 M.P 224 : 2 M.L.J. 148 : 2 Weir 174, the only decision directly on the point in this Court.


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