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Kartick Chandra Biswas and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtKolkata
Decided On
Reported inAIR1930Cal278
AppellantKartick Chandra Biswas and ors.
RespondentEmperor
Excerpt:
- .....sen. this took place on 25th may 1928. in august 1928, ramkrishna saha made an application to the chief presidency magistrate asking for an enquiry into the matter, his complaint being that his name had been forged on the receipt aforesaid and the plan had been taken out by somebody not himself. this was followed up by another application made to the chief presidency magistrate on 9th october 1928, in which he went into greater details and stated that kartick biswas and others had tampered with the original plan that was in the custody of the calcutta corporation and having done, that they removed the certified copy of the plan that was lying with the record of the police cases referred to above by giving a false receipt and with the false identification of the pleader mr. naresh.....
Judgment:

C.C. Ghose, J.

1. This rule must be-discharged for the following reasons.

2. This rule was issued by my learned brothers Mitter, J., and S.K. Ghose, J., on 30th September 1929, on the application of three persons, viz., Kartick Chandra biswas, Bisheswar Biswas and Bhubaneswar Biswas. The matter of the application on which that rule was issued came up before this Court on a previous occasion in a slightly different form and in order to understand and appreciate the order that we propose to make, it is necessary to set out briefly, the circumstances giving rise to the present application.

3. In the year 1927 there were two criminal cases in which the petitioners or some of them were one of the parties and one Ramkrishna Saha or his men were the other party. These cases ended in a compromise and the result was that the proceedings in those cases terminated on 28th July 1927. In those proceedings a certified copy of a municipal plan had been filed on behalf of the said Ramkrishna Saha. This certified copy, it is alleged, was taken out by some person or persons, signing as or for Ramkrishna Saha on a receipt given for the purpose. The executant of the receipt was identified as Ramkrishna Saha by a pleader named Mr. Nares Chandra Sen. This took place on 25th May 1928. In August 1928, Ramkrishna Saha made an application to the Chief Presidency Magistrate asking for an enquiry into the matter, his complaint being that his name had been forged on the receipt aforesaid and the plan had been taken out by somebody not himself. This was followed up by another application made to the Chief Presidency Magistrate on 9th October 1928, in which he went into greater details and stated that Kartick Biswas and others had tampered with the original plan that was in the custody of the Calcutta Corporation and having done, that they removed the certified copy of the plan that was lying with the record of the police cases referred to above by giving a false receipt and with the false identification of the pleader Mr. Naresh Chandra Sen. On this petition the learned Chief Presidency Magistrats, after examining the complainant Ramkrishna Saha and after certain preliminary orders which he passed, eventually issued warrants against the three petitioners under Sections 417, 419, 420, 109, I.P.C. Thereafter the learned Chief Presidency Magistrate commenced an enquiry into the matter. In the course of the proceedings the learned Chief Presidency Magistrate came to entertain some doubt as to whether a complaint by Dr. Sarbadhikary was necessary in a case of this kind but eventually thought it was. On 9th January 1929, he expressed himself thus:

The forgery was actually a receipt for taking back the document but it appears, however, to be probably within the moaning of Section 195(c) in respect of the document that was put in evidence.

4. He, therefore, suggested to Dr. Sarbadhikary to make formal complaint inasmuch as otherwise there might be difficulties in going on with the proceedings. It appears that on this matter being placed befor Dr. Sarbadhikary the latter on 14th January 1929 made an order which runs in these words:

I did not pass the order and I do not know anything about it. I cannot therefore, make this complaint.

5. On the same day, evidently b-y reason of the order aforesaid of Dr. Sarbadhikary, the learned Chief Presidency Magistrate recorded a further order which runs in these words:

If the Magistrate takes the trouble to read the order, to look up the law and then see the reports he will be able to learn all about it. The C.C. I should appear before him and move him to make the necessary complaint. Otherwise the case cannot proceed.

6. It appears further that, therefore, Dr. Sarbadhikary was moved by the C.C. I and certain papers were put before him with the result that he on 15th April 1929 made the order which forms the subject matter of the appeal. That order runs in these words:

After perusing the above named papers, I am strongly of opinion that if any offence has been committed, it has been chiefly committed by the certifying pleader Mr. Naresh Chandra Sen. He must, therefore, be made an accused in the case along with Bhubaneswar Biswas, Kartick Chandra Biswas and Bisheswar Biswas. Accordingly, all these four persons are made accused in this case.

7. On the strength of this order of Dr. Sarbadhikary the learned Chief Presidency Magistrate took cognizance of the case. Against the order of Dr. Sarbadhikary the petitioners preferred an appeal to this Court being Criminal Appeal No. 257 of 1929 : The appeal came on for hearing before my learned brothers Mukerji, and Jack, JJ., and by their order dated 28th August 1929, the learned Judges allowed the appeal and set aside the order which was made by Dr. Sarbadhikary. It is not necessary for us to go into the grounds of the order made by Mukerji and Jack, JJ., at length. Briefly stated, their points were two in number : First, that Section 195, Criminal P.C., would not operate as a bar to the cognizance of any of the offences referred to hereinbefore and that Dr. Sarbadhikary in the circumstances which had happened was not competent to make a complaint under Section 476, Criminal P.C. It appears that the matter thereafter went back to the Chief Presidency Magistrate and warrants were issued for the arrest of the present petitioners, Thereafter the present petitioners came before Hitter and S.K. Ghose, JJ. and obtained a Rule, as stated above, on 30th September 1929, calling upon the Chief Presidency Magistrate to show cause why the proceedings against the petitioners should not be quashed on the following grounds; viz.:

8. For that the learned Magistrate has misconstrued the order of the High Court in holding that the case was one not covered by Section 195, Criminal P.C.;

9. For that what this Court had held was merely that no complaint by Dr. Sarbadhikary was necessary to prosecute the petitioners under Section 467, I.P.C. and

10. For that the allegations made in the petition of the complaint do not make out any case under Sections 417, 419, 420/ 109, Penal Code or under Section 467, I.P.C.

11. So far as the first ground is concerned, we are of opinion that having regard to the order of this Court dated 28th August 1929, it is not open to the present petitioners to raise any such question as is referred to in the first ground. Their Lordships Mukerji and Jack, JJ. have held expressly that Section 195, Criminal P.C. would not operate as a bar to the cognizance of any offences hereinbefore referred to. Mr. Basu, howover, has argued before us that having regard to the language of Section 195, Clause 1, Sub-section (c), it is clear that the offences hereinbefore referred to were committed by parties to a proceeding in Court in respect of a document produced or given in evidence in such proceeding. We are of opinion that apart from the objection that such an argument is not admissible in this case having regard to what was laid down by Mukerji and Jack, JJ., it is quite clear on the facts of this case that the offences were not committed by parties to any proceedings in Court while the said proceeding was pending in respect of documents produced or given in evidence in such proceeding. It is not necessary to recite the facts again; but it is sufficient from what has been stated above that the offences were committed long after the proceedings in Court had come to a termination. That being so, there is no substance whatsoever in the first ground taken by the present petitioners.

12. As regards the second ground, it is quite true that no complaint by Dr. Sarbadbikary, the Honorary Magistrate concerned was necessary in this case; and if that is so, then this ground which is really one for the purpose of explaining what was held by Mukerji, and Jack, JJ. on 28th August 1929, must fall to the ground along with ground 1.

13. As regards the third ground, it is one dealing with the facts. In view of the order which we propose to make, it is neither desirable nor convenient that we, at this stage should go into the facts at any length and express an opinion thereon. We are, however, clearly of opinion that the allegations made in the complaint of Ramkrishna Saha are such as must be enquired into and it is quite impossible, having regard to the events which have happened and having regard to the nature of the complaint made by Ramkrishna Saha, that this Court should take upon itself at this stage to direct that the proceedings against the present petitioners should be quashed. It is sufficient for us to observe that ample materials are existent on the record which demand an enquiry and, in this view of the matter, the only course that is open to us at this stage is to discharge the rule and to direct that the record should be sent back as early as possible.

14. So much for the case itself. We cannot part, however, with this case without referring to the explanation which has been submitted by Mr. Roxburgh. In our opinion, it is a matter of abiding regret that a Magistrate of Mr. Roxburgh's position and of his experience and ability and knowledge of the procedure obtaining under the Criminal Procedure Code should have addressed to this Court an explanation in the language which he has thought fit to adopt and use. It is necessary to remind the Magistrate that he has no right to express himself in language of an annoyance nor to make sneering references to one of the Judges of this Court. Nothing is gained by using language wanting in decorum and politeness and the sooner Mr. Eoxburgh gets rid of his present style of communications, the better. Beading the explanation as a whole, it strikes us that he has indulged in a criticism of Mukerji J.'s judgment - a proceeding in respect of which we must express our severe disapproval and condemnation.

Pearson, J.

15. I agree that this rule must be discharged for the reasons given by my learned brother. I only wish to say with reference to the latter part of the judgment of my learned brother that I endorse what he has said as regards the attitude of the learned Chief Presidency Magistrate as disclosed in his explanation and particularly the fact that it appears that the expressions to which objection may be chiefly taken appear to be based upon certain language attributed to one of my learned brothers which does not appear anywhere, so far as we can find, from the records in the proceeding. It has occurred to me that the word to which Mr. Eoxburgh takes exception may have found place in a newspaper report which he has read. If so, I can only say that he has no business to utilize anything which he may have seen in the papers for the purpose of making adverse comments upon any Judge of this Court.


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