1. These are two appeals from an order dated 9th May 1930 made by Costello, J., directing that a complaint be made and forwarded to the Chief Presidency Magistrate under Section 476, Criminal P.C., The appellant in Appeal No. 7 is Provat Ranjan Barat and the appellants in Appeal No. 53 are Sivapada Bhattacharjee, Ramendra Lal Gupta and Satis Chandra Bose.
2. It appears that one Uma Sankar Chatterjee applied for Letters of Administration to the estate of Sreemuthy Krishna Bhamini Devi, alleging that she died intestate on 18th February 1928. Thereupon the appellant Provat Ranjan Barat filed a caveat on 19th April 1928 by Ramendra Lal Gupta, an attorney of this Court, claiming to be the sole executor under a will which turns out to bear date 22nd Magh 1334 B.S. A caveat was also filed on behalf of the Secretary of State and another on behalf of one Jungilal Ghose. The matter having been set down as a contentious cause, came on for hearing before the learned Judge on 20th February 1929. Provat Ranjan Barat did not appear either in person or by advocate, but the other parties came to terms and Letters of Administration were granted to Uma Sankar Chatterjee, it being ordered that the terms of settlement be recorded. The caveat of Provat Ranjan Barat was dismissed with costs; and the learned Judge directed that the records be sent to the Government Solicitor with a view to obtain his opinion whether Provat Ranjan Barat could be prosecuted. It would seem that the Government Solicitor was of opinion that the matter should be considered by the Public Prosecutor who took the matter up at the instance of this Court. After considering certain documents and inspecting the alleged will at the office of Mr. Ramendra Lal Gupta, and considering certain letters written by Ramendra Lal Gupta on behalf of Sivapada Bhattacharjee and referred to in the affidavit of documents of Uma Sankar Chatterjee, the Public Prosecutor came to the conclusion that there was a prima facie case of forgery not only against Provat Ranjan Barat, but also against the attorney Ramendra Lal Gupta, Sivapada Bhattacharjee and Satis Chandra Bose, the scribe of the alleged will. Accordingly the learned Judge, after considering the report of the Public Prosecutor, made the order now complained of under Section 476, Criminal P.C., complaining against Provat Ranjan Barat of forgery, or procuring- the forging of the will, under Section 467, I. P.C., and of dishonestly using as genuine the said will, under Section 471, I. P.C. He likewise complained against Satis Chandra Bose, Sivapada Bhattacharjee and Ramendra Lal Gupta for having abetted or conspired with Provat Ranjan Barat in the commission of the said offences, and against all the parties mentioned for having conspired with one another to commit the said offences and aiding and abetting one another in the commission thereof.
3. In Appeal No. 47, Provat Ranjan Barat takes exception to this order on the grounds that there were no materials before the learned Judge to justify it and that the learned Judge was not entitled under Section 476 of the Code to proceed upon the basis of any police enquiry, but was bound, if he thought any enquiry to be necessary, to hold such enquiry himself. In Appeal No. 53, the appellants take an additional point to the effect that as they were none of them parties to any proceeding before the learned Judge, their offence, if any, does not come within Clause (c), Sub-section 1, Section 195 and that no such order as has been made is within the provisions of Section 476 of that Code.
4. The first question is whether the phrase in Section 476,
such Court may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect
is to be read as meaning that if any enquiry is necessary it is to be made by the Court. Upon this question there is some authority. In the case of Shabir Hossain v. Emperor : AIR1928All21 , Dalai, J., said:
Under Section 476 an enquiry is to be made by the civil Court. If the civil Court so desires an enquiry may be ordered by the police, but in that case, when the police papers arrive, the civil Court is to determine whether it is necessary to take action against particular parsons under Section 476.
5. In Waman Dinkar v. Emperor  43 Bom. 300, a case under the old section, the Assistant Collector had obtained a full report from the police prior to making his order under Section 476 as it then stood. Hay-ward, J., said:
It is to be observed that the preliminary enquiry to be made is only such enquiry as may be necessary and it cannot be denied that in this case some enquiry was made by the Assistant Collector himself. It does not therefore appear to me to be a defect which could deprive him of jurisdiction in that he took the precaution of making a more careful and diligent enquiry with the assistance of the Criminal Investigation Department.
6. In Ruktu Singh v. Emperor A.I.R. 1921 Pat. 94, also under the old section, a Commissioner in a mutation case directed an enquiry by the police, and on receipt of the police report directed the prosecution under Section 476. Adami, J., said:
The section contemplated that the preliminary enquiry should be made by the Court itself and the only ground on which the Commissioner's jurisdiction can be attacked in this case is that he did not make the enquiry himself. He called on the petitioner to show cause by way of enquiry, but the petitioner did not call any witnesses but merely put in a petition. It would have been open to the Commissioner to pass an order under Section 476 without any further enquiry since his judgment and order showed that he was satisfied that fraud had been practised by the petitioner from the evidence given before him in the course of the judicial proceeding. It seems clear that the direction with regard to a police enquiry was made ex majore cautela as shown by the order. I cannot find that jurisdiction was either wanting or exceeded.... In his order the Commissioner refers back to his order of 27th August and that order refers to the record of the mutation case and so the order under Section 476 sufficiently discloses the material on which it is based. It refers to the police report as well, but this reference cannot take away or impair jurisdiction.
7. I am loath to add a single word to the language used by the legislature in Section 476; but having regard to the fact that an appeal is given from an order made under the section, I am prepared to hold that it is not open to a civil Court, if it thinks that some preliminary enquiry is necessary, to proceed upon the (basis that an enquiry by the police and the police report is an enquiry contemplated by the section. It appears to me that the section contemplates that the enquiry is to be made by the Court itself. I agree with Waller, J., in Raja Rao v. Emperor A.I.R. 1926 Mad. 1008 at (p. 661 of 50 Mad) that
the nature, method and extent of the preliminary enquiry are entirely at the Court's discretion. The enquiry need not be such as to satisfy the Court that an offence actually has been committed but merely that an offence appears to have been committed.
8. I think however that the enquiry must be of such a character as is compatible with the ordinary procedure of the Court in question. I do not doubt that the learned Judge could look at documents on the file or could call for documents and look at them and could consider the whole matter in view of any facts coming to light in the course of the substantive-proceedings. But just as it cannot be contemplated that a Judge should go about asking questions for himself from members of the public who might have some knowledge of the matter, so I think it cannot be intended that reports made by the police after making such enquiries should be the basis of the action of the Court under Section 476. In my judgment therefore the order of the learned Judge cannot be based upon the police report. After he had directed that the papers be laid before the Government Solicitor or Public Prosecutor, it would of course have been quite in order that one or other of these officers should apply to the Court upon evidence for an order directing that a complaint be made. I am not prepared as at present advised to say that such an application could not be made ex parte, but this question does not now arise.
9. It appears, that in the present case by an order made in June 1928 the learned Judge directed the will to be deposited with the Registrar. It appears, further, that the Public Prosecutor's report was in substance to the effect that if this document be conceded together with two-letters of 22nd and 23rd February 1928, there is ground for thinking it expedient that an enquiry should be made into the question of forgery. Accordingly, as copies of the letters were included in the copy, of the correspondence prepared for the use of the Judge, I have thought it right to consider whether these materials by themselves justifying a complaint being preferred against Provat Ranjan Barat for an offence under Section 467 or 471, I. P.C. In my opinion they were insufficient by themselves, but in the circumstances while setting aside the order of the learned Judge we should make it clear that it will be open to him to make further enquiry under Section 476 and to pass such order as may be justified upon the materials thus disclosed. It is inadvisable that we should discuss the matter further, Appeal No. 47 must be allowed.
10. In Appeal No. 53 the appellants are none of them parties to the proceeding before the learned Judge, and as the offence in question is thus not within Clause (c), Sub-section (1), Section 195, Criminal P.C., a criminal Court does not require a complaint in writing by the learned Judge to enable it to take cognizance of the offence alleged. Their case therefore is not within Section 476 at all. Sub-section 4, Section 195, means that where a party to a proceeding is alleged to be guilty of conspiracy to commit or of abetment of an offence of forgery committed in respect of a document produced or given in evidence in a proceeding in any Court the bar imposed by Section 195 applies, but in my opinion a person who is not a party gets no protection from Clause (c), Sub-section (1), Section 195, and is not within the purview of Section 476 in respect of. the offences mentioned in Clause (c). I am not prepared to give any unusual or extended meaning to the phrase ' party to any proceeding ' in Clause (c). The appellant Sivapada made an affidavit of due execution of the alleged will set up by Provat when the script was brought into Court in May 1928, but a witness is not a party. It is open to the Public Prosecutor to take any action which he may choose without any order of the learned Judge as against these appellants and in my opinion Appeal No. 53 should be allowed.
11. Of course if the learned Judge chooses to make a complaint to a Magistrate independently altogether of Section 195 or Section 476, Criminal P. C, he is exercising a right of privilege which belongs to any citizen and his action in such a case is in no way open to review by a Court of appeal because it is not a judicial act at all. I do not say that it is not a complaint made by a Court within the meaning of Section 200, Criminal P.C. that is another question. The directing of a section under Section 476 is clearly a judicial act and the order made in this case purports to have been made as a judicial order under that section.
12. I understand some difficulty has been felt as to the meaning of the phrase in Section 476, Criminal P.C.,
into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court.
13. These words, when compared with the words in Clause (b), Section 195, Sub-section (1), and contrasted with the language of Clause (c) of the same section, appear to have been thought to give room for a contention to the effect that Section 476 embraces cases which would not be within the terms of Clause (b) or Clause (c), Section 195 at all. In my view, there is no difficulty of that kind. Section 476 nowhere says that no Court shall take cognizance of certain offences. That provision is only in Section 195 and it is clear to my mind that Section 476 can only apply to cases where by a reason of a provision in the Code the Magistrate requires a complaint by a Court in order that ha may take cognizance of the charge. Otherwise, it is manifest that an order might be made under Section 476 and an appeal might be brought; but whatever the result of the proceedings under Section 476 or Section 476 (b), it would be open to the Public Prosecutor or to any other member of the public to ignore the result altogether and file a complaint before a Magistrate upon which the Magistrate would be obliged to take proceedings. The use of the words 'in or in relation to a proceeding in that Court ' is, to my mind, nearly to say that the Court, e.g. at Alipore, is not to take action where the offence has relation to a proceeding in some other Court. It is merely to indentify the Court itself which is to take action under Section 476, Criminal P.C. The language ' in or in relation to a proceeding in that Court' is necessarily and naturally wide because it has to cover cases under Clause (b) as well as Clause (c).
C.C. Ghose, J.
14. I agree.