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Lachman Ojha Vs. Anup Rai - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.176
AppellantLachman Ojha
RespondentAnup Rai
Cases Referred and Kannullah v. Emperor
Excerpt:
prosecution - sanction--criminal procedure code (act v of 1893), section 476--forgery--suit dismissed--decree affirmed on appeal--jurisdiction of first court and of appellate court to institute proceedings under section 476, criminal procedure code. - .....under section 476 of the criminal procedure code; but as an appeal against the decree in the bond suit was preferred, the proceedings were held in abeyance. the judgment of the court was ultimately confirmed on appeal on the 15th march 1912. thereupon notice was issued by the first court upon the present petitioners to show cause why an order should not be made under section 476 of the criminal procedure code. cause was shown and an order was made on the 6th may 1912 in these terms: 'from these things, the opposite party appear to be guilty of the offences mentioned in sections 463 and 471, indian penal code, and i accordingly send the case to the deputy commissioner of manbhoom for investigation and for trial or commitment to the sessions as may be considered necessary.' it has.....
Judgment:

1. We are invited in this Rule to set aside an order under Section 476 of the Criminal Procedure Code. It appears that the petitioners, as plaintiffs, sued on a registered bond and produced it in support of their claim. Upon an examination of the bond, it appeared that the figures 35 had been altered to 25, in the clause which fixed the value of the paddy deliverable in lieu of interest. The Court dismissed the suit on the 16th August 1911, holding that the plaintiffs were guilty of the alteration, and took proceedings under Section 476 of the Criminal Procedure Code; but as an appeal against the decree in the bond suit was preferred, the proceedings were held in abeyance. The judgment of the Court was ultimately confirmed on appeal on the 15th March 1912. Thereupon notice was issued by the first Court upon the present petitioners to show cause why an order should not be made under Section 476 of the Criminal Procedure Code. Cause was shown and an order was made on the 6th May 1912 in these terms: 'from these things, the opposite party appear to be guilty of the offences mentioned in Sections 463 and 471, Indian Penal Code, and I accordingly send the case to the Deputy Commissioner of Manbhoom for investigation and for trial or commitment to the Sessions as may be considered necessary.' It has been argued before us that this order was made without jurisdiction inasmuch as the final decree in the civil suit was made by the Appellate Court, and consequently that Court alone was competent to take action, if necessary, under Section 476 of the Criminal Procedure Code. In support of this proposition, reliance has been placed upon the cases of Jadu Lal Sahu v. Lowis J.R. 34 C. 848; 11 C.W.N. 712; 5 Cr. L.J. 480; 6 C.L.L. 531 and Kannullah v. Emperor 12 C.W.N. 1; 6 C.L.J. 703; 6 Cr. L.J. 354. Neither of these cases is of any assistance to the petitioner. The first case holds that it is undesirable to grant sanction for criminal prosecution pending the hearing of an appeal in a civil suit. The second case holds that where the sanction has been granted by a Court of first instance on the strength of its decision in a civil suit, that order must be taken to have lapsed when the judgment in the Civil suit has been reversed on appeal, because the foundation for the order for prosecution has disappeared. In the case before us, the decree in the civil suit was confirmed on appeal. It was, therefore, competent to the Court of first instance, as also to the Court of Appeal, to take action under Section 476 of the Criminal Procedure Code. We may point out, however, that the order is not accurately worded, and in accordance with Section 476, the Court ought to have sent the case for inquiry or trial to the nearest Magistrate of the first class. This, no doubt, is what the Court intended. The verbal in accuracy, doubtless, has not in any way prejudiced the petitioner; at the same time, it is desirable that judicial officers in Civil Courts, who may not be familiar with the provisions of the Criminal Code and who may have to pass orders under Section 195 or 476 of the Criminal Procedure Code, should adhere strictly to the language used by the legislature and not endeavour to paraphrase the same.

2. The Rule is discharged.


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