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Ahamadar Rahman Vs. Dwip Chand Choudhury and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1928Cal281
AppellantAhamadar Rahman
RespondentDwip Chand Choudhury and anr.
Cases ReferredCourt. In Ranjit Narain Singh v. Ramhahadur Singh A.I.R.
Excerpt:
- .....the munsif's finding was affirmed on 10th july 1926, thereupon the petition asking the munsiff to make a complaint to the magistrate was revived and a miscellaneous case was started and the parties commenced to contest the question whether the munsif's court ought not to make a complaint against the present appellant. how far they contested it on the merits is doubtful, because it would appear that in the end, on 4th december 1926, the application of the plaintiffs-landlords was dismissed for default. taking that order of dismissal for default as being, in the words of section 476-b, a refusal to make a complaint, the plaintiffs-landlords appealed against it to the district-judge who, on 5th march 1927, made the order against which the present appeal is brought. by his order the learned.....
Judgment:

Rankin, C.J.

1. This is an appeal from an order, dated 5th March 1927, and made by the District Judge of Chhittagong under Section 476-B, Criminal P.C. It appears that the appellant was a tenant to and tahsildar of a certain party; He, in the course of his duty, appears to have collected rents due to his masters and there was certain litigation between the parties. In 1924 the masters brought certain rent suits for arrears in respect of the years 1920 to 1923 against the present appellant and his co-sharers. He pleaded full payment as regards the rent of 1920 and part payment as regards the later years, and on this latter point he supported his case by producing two dakhilas, Ex. A and Ex. A-1. It is said that Ex. A is a dakhila emanating from the sudder cutchery and Ex. A-1 was given by one Mahendra under orders of the sudder cutchery. Be that as it may, the Munsif, in whose Court the suit was brought, decreed the rent suit in full and appears to have made an observation that the dakhilas were suspicious. Thereupon the plaintiffs in the case made an application to the Munsif under Section 476, Criminal P.C., asking him to take steps by making a complaint to institute prosecution of the present appellant for producing in evidence these documents known by him to be false in other words, for perjury and forgery. The case itself-the rent suit-went on appeal to the District Judge, but the Munsif's finding was affirmed on 10th July 1926, Thereupon the petition asking the Munsiff to make a complaint to the Magistrate was revived and a miscellaneous case was started and the parties commenced to contest the question whether the Munsif's Court ought not to make a complaint against the present appellant. How far they contested it on the merits is doubtful, because it would appear that in the end, on 4th December 1926, the application of the plaintiffs-landlords was dismissed for default. Taking that order of dismissal for default as being, in the words of Section 476-B, a refusal to make a complaint, the plaintiffs-landlords appealed against it to the District-Judge who, on 5th March 1927, made the order against which the present appeal is brought. By his order the learned District Judge gives certain reasons which appear to him to amount to good prima facie proof that the dakhilas were forgeries. He goes into the questions of the counterfoils, the numbers of the counterfoils and so on. He comes to the conclusion that there is a good prime facie case, not only that they were forgeries, but that the present appellant used them knowing them to be forgeries.

2. In the present appeal the first question that arises is whether, in a case like this, an appeal lies to the High Court or not. That question depends upon the words of Section 476-B, Criminal P.C. What is said is that, in a case where the first Court, in dealing with an application to lodge complaint, refuses to lodge a complaint, and an appeal is taken to a superior Court which decides to make a complaint there is a further right of appeal from that; because Section 476-B, having operated to give an appeal from the order of the first Court dealing with the matter, operates all over again when the second Court decides that a complaint should be made. Mr. Fazlul Huq, the learned Advocate who appears for the appellant, does not contend that, if in such a case as this the superior Court had dismissed the appeal, thereby refusing to make a complaint and agreeing with the Court below from such an order, a right of appeal to the High Court would lie. He contends that it makes all the difference that the order of the superior Court was an order which for the first time amounted to the making of a complaint. He agrees, too, that if in the first Court a complaint had been made and on appeal the appeal had been dismissed, no further appeal would lie to this Court. He contends that in the particular case, where the first Court having refused to make a complaint a superior Court differs and does for the first time make a complaint then Section 476-B operates to give what is in effect a second appeal. There is some authority upon this question and it is very important that the matter should be rightly decided. The question is whether the intention of the legislature was to give one appeal from every decision upon an application for an order that a complaint shall be made, or whether the intention of the Code is not merely to give that right, but in addition to give a right to one appeal from every order directing a complaint.

3. In my judgment it is desirable to refer to three cases in which this matter has been dealt with. The first case to which I would refer is the case of Somabhai Valabh Bhai v. Aditbhai Parshottam A.I.R. 1924 Bom. 347 That case was one in which a Subordinate Judge decided to make a complaint The language used by the Subordinate Court was language applicable to the old Code, but in fact the first Court decide to make a complaint. On appeal the superior Court, namely, the Sessions Judge, reversed that order and recalled the complaint. Thereupon an appeal was brought to the High Court and the decision of Macleod, C.J., and Shah, J. was to the following effect:

From that order in effect directing withdrawal of the complaint the petitioner has filed an appeal. The first question is whether the appeal lies. We are clearly of opinion that no appeal lies under the provisions of the Cod against an order made by the Court to wine the Court making a complaint is subordinate.

4. It is quite true that in that particular case the superior Court had refused to make a complaint and had set aside the order directing a complaint to be made. The learned Judges do not seem to me to proceed upon that all. They proceed, I think, upon the principle that, on the true construction of Section 476-B, there is no provision for a second appeal; there is no provision for an appeal to be taken from the order made by the superior Court.

5. The next case to which I would refer is the case of Muhammad Idris v. Emperor A.I.R. 1925 Lah. 322. In that case there had been a Subordinate Judge's order refusing to make a complaint and there had been an appellate order under Section 476-B directing a complaint to be made, so that it was a case exactly on all fours with the present case; and when an appeal was taken to the High Court of Lahore the matter was referred to a Bench for decision. The appellate Bench decided in this way:

The question referred to us in this appeal and in Appeals Nos. 233 and 286 of 1924 is whether an appeal lies to this Court from an appellate order of the District Judge making a complaint which the Subordinate Judge might himself have made under Section 476, Criminal P.C. Section 476-B of the Code gives a right of appeal only when a Court has made or refused to make a complaint under Section 476 or Section 476-A, and neither of those sections relates to a complaint made by a Court on appeal from an order of a Subordinate Court refusing to make a complaint.

6. It appears to me, therefore, that the High Court of Lahore has proceeded upon the same principle as the High Court of Bombay, namely, that under Section 476-B there is evidently an intention to give one appeal from the decision of the first Court which deals with an application that a complaint should be made. Whether the appeal results in granting the application or refusing the application, there is one appeal, and only one appeal, provided for by Section 476-B.

7. The case, however, in which the matter has been most fully discussed is a case which is in favour of the present appellant. That is the case of Ranjit Narain Singh v. Rambahadur Singh A.I.R. 1926 Pat. 81. The learned Judges there take the view that if the superior Court acting under Section 476-B decides in a particular way or for the first time decides to make a complaint which the lower Court has refused to make then the section having once operated proceeds to operate all over again because the order made by the superior Court in such a case is itself an order making a complaint; and, therefore, an order making a complaint having been made, and made for the first time, Section 476-B has a second lease of life and operates upon that to give in effect a second appeal. In so deciding the learned Judges appear to have been in agreement with a previous case decided by Mr. Justice Mullick, in the same High Court but which is not, so far as I know, reported. They do, however, cite in full for the present purpose the dicta of Mr. Justice Mullick and it appears that an application was made to a Sub-Deputy Collector to make a complaint against one Faijdar Rai directing his prosecution for the offences of using a forged document and giving false evidence. The Sub-Deputy Collector refused to take any action. The complainant appealed to the Collector under Section 476-B. The Collector disagreed with the Sub-Deputy Collector's view and himself made a complaint. Thereupon Faijdar Rai appealed to the Divisional Commissioner by way of second appeal and the Divisional Commissioner held that no such appeal was competent. The matter came to the High Court before Mr. Justice Mullick and he took the view that the second appeal to the Commissioner was competent. The reasons which he gives are as follows:

Section 476-B, Criminal P.C., appears to contemplate that, if an appellate Court set aside the order of the original Court, the party prejudicially affected has a right of appeal to the Court to which appeals from that appellate Court ordinarily lie.

8. The view taken by Mr. Justice Mullick was, so far as I can see, not that it depended upon whether the superior Court decided to make a complaint or decided for the first time to make a complaint, but merely upon whether the appellate Court set aside the order of the original Court. In Ranjit Narain Singh v. Ramhahadur Singh A.I.R. 1926 Pat. 81, that was not the view which the appellate Bench appears to have adopted. The view that it adopted is this : that if an order for a complaint to be made is made by the first Court and upheld by the second Court no further appeal lies, but if such an order is refused by the first Court and a complaint is made by the second Court, then an appeal lies, not by reason of any express provision to that effect at the end of Section 476-B, but by reason that the section operates upon the same subject-matter over again, this being a complaint within the meaning of the opening words of the section.

9. In my judgment it is unsound to hold on the language of Section 476-B that any such distinction was intended. Section 476-B gives a right of appeal first to a person aggrieved because any civil, revenue or criminal Court has refused to make a complaint. It also gives it to any person against whom such a complaint has been made; and if this section is to operate upon the same subject-matter twice, so as in effect to produce more than one appeal from the first decision upon an application to direct a prosecution I think it applies indifferently whether the effect of the second Court's order is to make a complaint or to refuse to make a complaint. In the present case now before us the Munsif refused to make a complaint. The only meaning of the appeal to the District Judge was to ask him to make a complaint. It was in his-discretion to make a complaint or not to make a complaint. If he had refused to make a complaint and upheld the order of the Munsif I fail to see why he would not have been as much within the opening words of the section as he was when he decided to differ from the Munsif, and to make a complaint. It seems to me to be erroneous to say that if he makes a complaint he does so not under Section 476-B but under Section 476, but while if he refuses to make a complaint under Section 476 he does so under Section 476-B. Section 476 applies, in the case of a 'superior Court,' i.e. a Court superior to the Court in which the offence took place only after a complaint is made under an authority not given by the section. Section 476-B applies to a complaint made or refused by a Court acting under the authority conferred upon it by Section 476 or Section 476-A. Hence the words used are 'has refused to make a complaint under Section 476 or Section 476-A etc.' The reference to Section 476 is in almost identical terms at the conclusion of Sections 476-A and 476-B and had the legislature intended to produce the result now contended for on behalf of the appellant it would have provided specifically for an appeal when a complaint is made by a Court acting under the powers conferred by Section 476-B.

10. Prima facie Section 476-B deals first of all with a Court and then with the Court to which the former Court is subordinate which is called the superior Court. In my judgment it is a misconstruction of the section to suppose that when the superior Court has acted under the section and the section has taken its effect the same matter is to be subjected for the second time to a process exactly of the same character with the result that one provision in general terms for an appeal operates twice.

11. It has been pointed out to us that under Section 476-A, if this matter had not been canvassed in the Munsif's Court at all, the District Judge might have made an order that a complaint should issue. In that case he would have been dealing with the matter for the first time and it is, clear on the terms Section 476-B that an appeal would have lain from his decision. It is important to point out that an appeal would lie from his decision equally whether he refused to make a complaint under Section 476-A or whether he made a complaint under Section 476. There would be no difference at all according to the result or the nature of his order. There would be one appeal from the Court which dealt with the matter for the first time. I fail altogether to see how this shows it to be correct to construe Section 476-B as though it were intended to take operation upon the same case twice over.

12. It has been suggested that the language at the end of the section assists the appellant's case, namely, the wording where it is said that if the superior Court makes such complaint the provisions of Section 476 shall apply to the complaint. That is quite clear and necessary. The accused can be sent in custody to a Magistrate. The superior Court in such a case can bind over any person to give evidence before a Magistrate. The Magistrate must proceed according to law and and so forth. There can be no doubt that Section 476 must apply. But, as I ventured to point out in the course of the argument, that is a very different thing from saying that Section 476-B must apply all over again.

13. I am of opinion, therefore, that the policy of the law as laid down in Section 476-B, is this : that whenever there is a decision by a Court upon an application that a complaint shall be made - whether that decision be one way or another - there is one appeal from it and no more than one appeal. It matters nothing whatever what the result of the appeal may be. If any particular person is for the first time, ordered to be prosecuted, by the, superior Court his remedy after that is to take his defence before a jury or a Magistrate according to the nature of the, case. Two Courts and only two are to deal with this preliminary question as to whether a person shall be prosecuted or not. If the second Court is against the present accused he must look to the jury for his safety.

14. This being a proceeding in a civil case a Rule has been obtained under Section 115, Civil P.C., asking us to interfere with the order made and the learned advocate for the appellant asks us upon this rule to take action because he says that the learned Judge's order is not a proper complaint and that he has not recorded a finding that it is expedient in the interest of justice that the appellant should be prosecuted. When we come to look at what is absolutely required by the Criminal Procedure Code it does not seem to be illegal to deal with the matter as the learned District Judge has done. Having given his reasons holding that there is a good prima facie case he says

I, therefore, direct the prosecution of Ahamadar Rahaman. Let a copy of this order be sent along with the records to the proper Magistrate as a complaint.

15. That seems to me to be sufficient under the Criminal Procedure Code. In some cases a more formal and fuller document may be required, but in this case I am not prepared to hold that it is not a good complaint. The learned Judge says : 'I direct the prosecution of Ahamadar Rahaman.' It is true that he has not used the exact words of Section 476 as indeed he should have been done; but in my judgment there can be no doubt that he has come to the conclusion that it is expedient in the interest of justice. After all the question is whether or not this man used forged documents knowing them to be forged documents and gave evidence which was perjured evidence before a Court of law. If it appeared to the learned Judge that there was a prima facie case against him of that character, then in the absence of very special circumstances it would be in the public interest that that matter should be investigated before a competent Magistrate.

16. In my judgment, therefore, the appeal fails and must be dismissed and the Rule must be discharged.

Chotzner, J.

17. I agree.


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