Lawrence H. Jenkins C.J., Brett, Wood-Roffe, Mookerjee, Holmwood, Sharfuddin and Doss, JJ.
1. Two questions have been referred to us for decision in this Rule, namely:
(i) Whether the expression 'Court' in Section 476 of the Criminal Procedure Code means merely the Judge before whom the alleged offence has been committed, or to whose notice the commission of the alleged offence has been brought in the course of a judicial proceeding?
(ii) Whether an execution proceeding is a 'judicial proceeding' within the meaning of Section 476 of the Criminal Procedure Code?
2. Upon a careful consideration of the cases mentioned in the order of Reference, as also those cited at the bar, and upon an examination of the language of Section 476 of the Criminal Procedure Code, we are of opinion that there is nothing in that section to warrant our withholding from the word 'Court' its natural meaning with the sense of continuity this implies notwithstanding any change of officers.
3. We are of opinion that the first question ought to be answered in the negative.
4. The second question ought, in our opinion, to be answered in the affirmative. We entertain no doubt that an execution proceeding is a 'judicial proceeding;' the definition in Section 4, Clause (m) of the Code of 1898 is clearly not exhaustive. In this case the alleged offence was brought under the notice of the Court in the course of such judicial proceeding, and hence Section 476 clearly came into play.
5. It follows, therefore, that Mr. P.K. Mukerjee had jurisdiction to make the order of the 6th October 1909. At the same time we must express our disapproval of the undue pro traction of the proceedings. Action under this section should, as far as possible, be prompt and expeditious. The alleged offence was brought to the notice of the Court on the 23rd December 1908, and it was not until 6th October 1909 that the Court passed its final order.
6. The Rule is accordingly discharged. There will be no order as to costs.