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Nalini Kanta Laha and ors. Vs. Anukul Chandra Laha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in39Ind.Cas.490
AppellantNalini Kanta Laha and ors.
RespondentAnukul Chandra Laha
Cases ReferredBhawani Das v. Emperor
Excerpt:
criminal procedure code ( act v of 1898), section 195 (1)(e) - 'produced,' meaning of--alleged forged document used in possession proceedings--prosecution for antecedent forgery and user--sanction-penal code (act xlv of 1860), section 465, 467, 471. - .....essential question in that suit will be, whether the document which is the subject of the present criminal proceedings is or is not a genuine document.6. on behalf of the petitioner it is then contended before us, firstly, that in the proceedings before the honorary magistrate under section 145, criminal procedure code, to which the petitioners nalini and fakir were parties, the document now in question was 'produced or given in evidence,' and that, therefore, under the provisions of section 195 (1)(c) the absence of the said magistrate's sanction is a bar to the criminal proceedings in respect of the antecedent forgery and the antecedent user before the sub-registrar of amta. it is, secondly, contended that the institution of the civil suit in the court of the. 2nd munsif at howrah.....
Judgment:

1. In this case it appears that proceedings under Sections 465, 467, and 471 of the Indian Penal Code have been taken in the Court of the Senior Deputy Magistrate of Howrah, against the petitioners. These proceedings are in respect of a deed of sale executed by one Niroda Moyee Dasi in favour of petitioner No. 1, Nalini Kanta Laha, though ostensibly in favour of petitioner No. 3, Fakir Chandra Chakraverty. The document bears date 11th September 1915, and was registered on the 26th October 1915, before the Sub-Registrar of Amta.

2. The complainant in the proceedings is one Ankul Chandra Laha, who holds a conveyance of the same plot of land purporting to have beer; executed by Niroda Moyee on the 10th October 1915 This document was presented for registration to the Sub-Registrar of Howarh on the 25th of October and was ultimately registered under the order of the District Registrar on the 2nd December 1915. The complainant's ease is that the document in favour of Nalini Kanta and Fakir Chandra has been fraudulently antedated, and his complaint was made before the District Magistrate of Howrah as against the 1st, 3rd, 4th and 5th petitioners on the 12th July 1916, and as against the 2nd petitioner on the 2nd August 1916. Both complaints were transferred by the District Magistrate to the Deputy Magistrate for disposal.

3. The complaints, it may be observed, were made after preliminary proceedings which continued before the Sub-Registrar of Amta, the District Registrar and an enquiring officer from the 28th of October 1915 to the 29th of June 1916. The offences charged are the alleged fabrication of the document on or about the 28th of October 1915, and the fraudulent use thereof before the Sub-Registrar of Anita on that date.

4. Meanwhile on the 29th of January 1916, proceedings under Section 145 of the Criminal Procedure Code had been taken in the Court of the Sub-Divisional Magistrate of Uluberia against complainant Anukul as the 1st party and against the present petitioners, Nalini and Fakir, as the 2nd party. These proceedings were disposed of by an Honorary Magistrate to whom they had been transferred on the 29th of March 1916.

5. It may be next observed that on the 7th July 1916, i.e., four days before the 1st complaint in the Criminal Court and about a month before the 2nd, the petitioner Nalini brought a suit on the document in the Court of the 2nd Munsif at Amta. In this suit the complainant Anukul is the defendant and the essential question in that suit will be, whether the document which is the subject of the present criminal proceedings is or is not a genuine document.

6. On behalf of the petitioner it is then contended before us, firstly, that in the proceedings before the Honorary Magistrate under Section 145, Criminal Procedure Code, to which the petitioners Nalini and Fakir were parties, the document now in question was 'produced or given in evidence,' and that, therefore, under the provisions of Section 195 (1)(c) the absence of the said Magistrate's sanction is a bar to the criminal proceedings in respect of the antecedent forgery and the antecedent user before the Sub-Registrar of Amta. It is, secondly, contended that the institution of the civil suit in the Court of the. 2nd Munsif at Howrah having preceded the complaint on which the criminal proceedings have been taken, these proceedings should await the determination of that suit.

7. We have then first to ascertain whether the document was in fact 'produced or given in evidence' in the course of the Section 145 proceedings. When these proceedings were pending the document, it appears, was on the record of a case instituted against the stamp vendor Dayal Sau and on the 8th of March the present petitioner Nalini Kanta Laha presented a petition to the Honorary Magistrate, in which he prayed that the document should be called for and used in the Section 145 proceedings. Thereupon on the 11th of March the Honorary Magistrate called for this document and other documents on the ground that reference to them was essentially necessary and the document was accordingly transmitted to him by the Sub-Divisional Officer, Uluberia, on the 15th of March.

8. We next find that in the course of the argument the Pleader for the 2nd party Nalini and Fakir made use of the document and that in his judgment the Honorary Magistrate refers to it, though he refrains from expressing any opinion on its authenticity. On these facets we think that we ought to hold that in the proceedings in the Court of the Honorary Magistrate of Amta the document was produced within the meaning of Section 195(1)(c). In support of this view we may refer to the cases reported as Guru Charan Shaha v. Girija Sundari Dasi 29 C. 887 ; 7 C.W.N. 112, Ahhil Ohandra Sen v. Queen impress 22 C. 1004 ; 11 Ind. Doc. (N.S.) 667, Ramdin Bania v. Sew Baksh Singh 6 Ind. Cas. 473 ; 14 C.W.N. 806 ; 11 Cr. L.J. 357 ; 37 C. 714 and Gopal Sidheshvar, In re, 9 Bom. L.R. 735 ; 6 Cr. L.J. 78.

9. The question then is whether this production makes a sanction necessary before the petitioners Nalini and Fakir, who were parties to the proceedings, under Section 145, Criminal Petitioner Code, can be prosecuted in respect of the antecedent forgery and the antecedent user before the Sub-Registrar.

10. The Crown contends that such sanction is necessary only when the offences charged have been committed by the persons accused and when parties to the proceedings in which the production took place.

11. The language of Section 195 (1)(c) is by no means clear and would seem to admit of either construction, but though the contention on behalf of the Crown is supported by the case reported as Noor Mahomad Cassum v. Kaikhosru Maneckjee 4 Bom. L.R. 268, we are of opinion that this is unduly to limit the scope of the sub-clause under consideration. The view urged on behalf of the petitioner has been taken in Teni Shah v. Bulahi Shah 5 Ind. Cas. 879 ; 14 C.W.N. 479 ; 11 Cr. L.J. 280 and in Bhawani Das v. Emperor 35 Ind. Cas. 161 ; 38 A. 169 ; 14 A.L.J. 74 ; 17 Cr. L.J. 289 and is also supported by the course of reasoning followed in Parameswara Nambudri, In re 31 Ind. Cas. 161 ; 39 M. 677 ; 18 M.L.T. 322 ; 16 Cr. L. J. 721. With these decisions we agree and in this view the prosecution of the principal petitioners, Nalini and Fakir Chandra, cannot proceed without sanction. The other three petitioners who are charged as accessories were not parties to the case under Section 145, Criminal Procedure Code, but it is not desirable that proceedings should be taken piecemeal or against the abettors, while there is still a bar to the prosecution of the principals.

12. In this view it is unnecessary to discuss the second contention advanced on behalf of the petitioners.

13. For the reasons given, we quash the proceedings now taken against the petitioners Nalini and Fakir, and stay the proceedings against the remaining three petitioners until the bar to a prosecution of the principals has been removed.


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