1. We are invited in this Rule to set aside an order by which the Court of appeal below, in reversal of the order of the original Court, has directed the prosecution of the petitioner under Section 195 of the Code of Criminal Procedure for attempt to commit an offence punishable under Section 471 of the Indian Penal Code. The circumstances under which the order has been made are not disputed before this Court. On the 18th August 1909, the plaintiff, now opposite party before us, instituted a suit for recovery of arrears of rent against the petitioner. On the 7th September, the defendant filed his written statement in which he pleaded payment of the sum claimed to the officer of the plaintiff. On the 19th December the defendant filed what purported to be a receipt for the sum alleged to have been paid. On the 3rd March 1910, the plaintiff petitioned to the Court not to accept this receipt, because it had been filed too late. The plaintiff further appears to have impugned the genuineness of the document. On the 31st March, the defendant petitioned to the Court that the document then on the record might not be accepted as genuine. He asserted that the receipt filed by him had been removed from the record and in its place had been substituted the document which was justly impugned as forged by the plaintiff. On the 8th April, the suit was decreed, and we have been informed that no evidence was adduced by the defendant to prove the payment alleged to have been made by him. On the same day, the successful plaintiff prays that the receipt might be kept in safe custody, and on the 7th May following, he applied for sanction to prosecute the defendant. The defendant contended that he had not committed any offence. He denied that the receipt on the record had been filed by him and he reiterated his former statement that the document impugned as forged had been substituted by some person for the genuine document originally produced by him. The Court disbelieved this evidence and came to the conclusion that the document on the record had been originally filed by the defendant. But the Court refused the application under Section 195, in view of the decision of this Court in the case of Ambika Prasad v. Emperor 35 C. 820 : Cr. L.J. 398 which was treated as authority for the proposition that the filing of a document in Court was not an act which constituted an offence within the meaning of Section 471 of the Indian Penal Code, because it had never been tendered in evidence. The plaintiff then appealed against this order. The learned Judge has held, upon the authority of the decision of this Court in Queen-Empress v. Laid Ojha 3 C.W.N. 653 that the defendant is liable to be prosecuted for an offence under Section 471 of the Indian Penal Code read with Section 511; he has also directed the defendant to pay to the plaintiff the costs of the proceedings under Section 195, Criminal Procedure Code.
2. This decision has been assailed before us on two grounds, namely, first, that the petitioner has not committed any offence, and, consequently, his prosecution cannot be directed under Section 195; and, secondly, that no order for costs ought to be made against him even if the order under Section 195 is maintained. In our opinion the first of these contentions is unsustainable but the second must prevail.
3. It is clear upon the facts stated which have been determined only for the purpose of the present proceedings, that the applicant is liable to be prosecuted for attempt to commit an offence punishable under Section 471, Indian Penal Code. The Courts below have concurrently found that the receipt in question is a forged document and was filed by the defendant in support of the allegation previously made in his written statement that he bad paid to the officer of the plaintiff the sum claimed as arrears of rent. Two questions, therefore, arise for consideration, namely, first, whether the applicant has used as genuine a document which he knew to be forged, and, secondly, if this question be answered in the negative, whether he has attempted to use a document as genuine which he knew or had reason to believe to be forged.
4. In regard to both these questions, reliance has been placed, as already stated, upon the case of Ambika Prasad v. Emperor 35 C. 820 : Cr. L.J. 398 which has been treated as an authority for the propositions that the mere filing of a document in Court without tendering the same in evidence does not constitute user of it within Section 471 of the Penal Code. In our opinion, the head-note to the report is more comprehensive than the judgment, and we are not prepared to affirm it as an inflexible proposition of law that the filing of a document in Court can never constitute an user of it within Section 471, Indian Penal Code, till it has been actually tendered in evidence. It has further been argued, on the strength of this decision, that the filing of a document in Court does not constitute an attempt to use it as evidence, and that, consequently, the petitioner is not liable to be prosecuted under Section 471 read with Section 511, Indian Penal Code. No doubt, there is one isolated sentence in the judgment in the case of Ambika Prasad v. Emperor 35 C. 820 : Cr. L.J. 398 which lends some apparent support to this contention. But if the learned Judges intended to lay it down as an inflexible rule that what has been done in the case before us did not in law constitute an attempt to use the document, we are not prepared to accept that view as well founded. Here the petitioner has done everything that was necessary to enable him to tender the document in evidence at the trial. He had produced it and filed it in Court; and his purpose admittedly was to rely upon it at the trial with a view to support his plea of payment of the sum claimed by the plaintiff. Upon these facts, we are of opinion that the case is, undoubtedly, one of an attempt to use the document, though possibly not a case of using the document itself. It is not necessary for our present purpose to give a definition of an attempt to commit an offence within the meaning of Section 511, Indian Penal Code. The line of separation between preparation and attempt' may in some cases be very fine and the question whether what has been done amounts only to preparation or constitutes an attempt must depend upon the circumstances of each case. The danger which necessarily pursues an endeavour to define what constitutes a preparation' and an 'attempt' is well illustrated by the decision in Empress v. Riasat Ali 7 C. 352 : 8 C.L.R. 572 where Sir Richard Garth, C.J., relied upon the case of Reg. v. Chaseman Lewis & Cavres 145 and Macpherson's case Dean & Bell 202 for the purpose of defining what constitutes an attempt. The cases relied upon, however, have been, subsequently, overruled in England Queen v. Brown 24 Q.B.D. 357 and Queen v. Williams (1893) 1 Q.B. 320. Without undertaking, therefore, to define the term 'attempt,' we hold that the circumstances of the case before us show that the prosecution of the petitioner has been rightly ordered and that order will stand.
5. But in so far as the order of the Court below directs the payment of costs by the petitioner to the opposite party, it must be set aside. A proceeding under Section 195 of the Criminal Procedure Code ought not to be treated as a proceeding between private parties. The person who applies for sanction presumably does so in the interests of the administration of public justice, and if that be his real point of view, he cannot very well claim costs from the party against whom he obtains the order. Besides, the grant of sanction does not establish the guilt of the person against whom the order is made; if ultimately it transpires that the person is innocent, the order for payment of costs by him to the party who obtained the sanction cannot very well be justified. We, therefore, make the Rule absolute in part and set aside the order for payment of costs. The order of the Court below is affirmed in other respects.