C.C. Ghose, Actg. C.J.
1. This is a Rule calling upon the Chief Presidency Magistrate and the complainant to show cause why the order made by one of the Presidency Magistrates Mr. Wazen Ali, dated March 7, 1933, committing the accused to the Sessions Court for trial under Section 447, Indian Penal Code, should not be quashed; or why such other or further order should; not be made as to this Court may seem fit and proper on the ground that the evidence adduced by the prosecution does not disclose an offence under Section 477, Indian Penal Code and as such, the commitment of the accused is bad in law. We have heard Mr. P.R. Das of the Patna Bar in support of the Rule and Mr. Probodh Chandra Chatterjee has shown cause. In order to understand the facts involved in this matter and which have given rise to the present prosecution it is necessary to state a few facts very shortly.
2. It appears that one Janardan Sarkar died some time in 1924 after having executed a will on December 24, 1918. The will after execution remained with the Solicitors Messrs. Kar Mehta & Co. till February 2, 1926, when it was made over to the present accused who is the only son of the testator. The testator died leaving a widow named Tarangini Dasi who had a brother named Brojo Kishore Mondal and the person who said that he represented the complainant in the present, proceeding, namely Ranjit Kumar Malik a daughter's son of the testator. ID appears that although the accused got possession of the will from the Solicitors Messrs. Kar Mehta & Co. on February 2, 1926, he did not take any steps whatsoever to apply to this Court on its original side for obtaining probate thereof. The receipt granted by the accused to Messrs. Kar Mehta & Co has been produced in the present proceedings and is marked Ex. 17.
3. The explanation which has been sought to be given on behalf of the accused for his inaction in the matter of obtaining probate of the will is said to be this: that on the terms of the will there was nothing provided to show the destination of the corps till a certain event had taken place, namely, the death of the widow and that although various provisions are to be found in the will in the matter of legacies and annuities, the accused, who, it will be remembered, is the only son of the testator was not to get any portion of the movable or immovable properties left by the testator till the widow of the testator died. It is said on behalf of the accused that there was a complete intestacy so far as the corpus of the estate was concerned and that he had been advised that under the circumstances obtaining in the present case, he being the only son entitled to get the property de hors the will under the Hindu Law was not under any obligation whatsoever to apply for probate. Be that as it may, so far as the fads are concerned it appears that the widow of the testator, namely, the accused's mother, started a civil suit on the original side of this Court for obtaing a suitable maintenance for herself. That suit being Suit No. 903 of 1930 was Started by the mother of the accused in the month of May, 1930 and it resulted in a compromise decree some time in December, 1930.
4. The result of the compromise decree in that suit was that directions were given for the payment to the plaintiff, i.e., the mother of the accused, a sum of Rs, 200 per mensem on account of her maintenance. That suit was managed on behalf of the plaintiff by Messrs. Kar Mehta & Co. who were the testator's Solicitors who were the people who had the custody of the will up to February, 1926 and who had made over the will to the accused in February, 1926 after they had obtained a proper receipt from the accused namely, Ex. 17. It appears that the accused had to obtain from the Land Acquisition Court certain moneys in respect of the acquisition of a portion of the testator's estate and that for some reason or other he took it into his head to swear to an affidavit some time in July, 1930, to the effect that the testator had died intestate. But at any rate the fact remains that the people who were advising the widow and who were managing the suit on her behalf knew at all material times from 1926 down to the date of the compromise decree in the maintenance suit that there had been a will executed by the testator, that the will had remained in the custody of the solicitors and that the will had been made over to the accused on taking a proper receipt in respect thereof from the accused.
5. It is also in evidence that although, according to the accused's thinking, the testator had died intestate as alleged by him in the affidavit referred to above he had gone on making payments to the legatees and the annuitants in terms of the will and in support of this, reference may be made to the deposition of the mother-in the present proceedings wherein she makes it abundantly clear that that was done by the accused. But be that as. it may, the matter stood like this that the accused who had the will in his custody did not apply for probate and it was not until August 17, 1932, that the will was discovered as the result of a Police search in the accused's house on a complaint made ostensibly by the mother but on a complaint filed by Ranjit Kumar Mullik on behalf of the mother. Whether or not the mother was the real complainant is a question which admits of very considerable doubt having regard to the course of the proceedings in the present prosecution, because if one goes through the order sheet from August 16, 1932, down to March 7, 1933 one cannot say with any degree of certainly that the presecution which had been going on was in truth and in substance a prosecution on behalf of the mother and that no one else-be he Ranjit Kumar Mallik, the daughter's son of the testator or anybody else such as Brojo Kishore Mandal--had anything to do with engineering the prosecution. But we will proceed on the assumption that the complainant was the mother of the accused. It appears that alter the will had been discovered in August, 1932, attempts were made to bring about a settlement between the mother and the accused and that ultimately probate was applied for in respect of the will in question and probate was obtained.
6. After probate had been obtained the mother instituted a second suit on the original side being Suit No. 447 of 1933 for construction of the will and for administration of the estate left by the testator. That suit is still pending but in that suit an interlocutory application having been made the maintenance which was allowed by the compromise decree in the maintenance suit has been increased and a sum of Rs. 300 a month has been directed to be paid by way of and as maintenance to the mother. That was on January 25, 1933. So far as the estate itself of the testator is concerned it is reasonably clear that effective steps have been taken, are being taken and will be taken in the administration suit for obtaining the Court's directions for the purpose of safeguarding the estate itself; but the present prosecution has been allowed to goon and so far as the Magistrate's Court is concerned, it did not terminate till March 7, 1933 when the order referred to above and which is the order complained of was passed by the Magistrate.
7. We are not concerned, although a great deal may be said on the facts, with whether this present prosecution is a bona fide prosecution or net. There are indications which induce in the mind of the Court very considerable doubts; but, as we have said just now, we are not concerned with those doubts nor with the determination of the question as to who is the real complainant in the case or whether other persons are not interested in seeing the case drag out its ordinary length with ulterior motives or not. Leaving that question apart and aside we have got to consider the terms of the ground on which the present Rule has been issued and whether the accused can be roped in within the four corners of Section 477, Indian Penal Code. So far as that question is concerned, and that is the only question which need detain us, the facts, if one may summarise them again, are these that, at any rate, from February, 1926, the people who had been responsible for the conduct of the two suits referred to above and who must have been advising the plaintiff, i.e., the mother of the accused at all material times from 1930 onwards, were aware of the existence of the will and of the fact that the will had been made over to the duly constituted executor by the solicitors on a proper receipt being taken in respect thereof.
8. If the solicitors were aware of the existence of the will it is unreasonable to hold that plaintiff in the two suits did not know or could not know or could not have been advised as to the existence of the will in question. Any one acquainted with what obtains on the original side when suits for maintenance are started need not be reminded that the first question which engages the attention of the Pleader who draws the plaint or of the solicitor who advises the Pleader who draws the plaint is whether or not the person oat of whose estate the maintenance is to come died leaving a will or died intestate. That is the first question to engage one's attention and, as we have said, it is unreasonable to hold that the existence of the will did not become known or could not have become known to the plaintiff in the first of the original side suit. If, as is only natural to assume, the existence of the will must have become known to the plaintiff, that disposes of at once the question whether there was a secretion of the will within the meaning of Section 477, Indian Penal Code.
9. Mr. Chatterjee who has addressed to us a strenuous argument has confined his attention to a few of the words occurring in the section. He has confined his attention to the question as to whether the conduct of the accused was a fraudulent and dishonest one. No doubt, that is a very important circumstance to be taken into consideration; but the central fact emerging from a consideration of the proceedings had in this suit is whether there was a secretion of the will in question within the meaning of Section 477, Indian Penal Code. If there was no secretion, then nothing further need be considered. As we have said just now it is difficult to come to a conclusion that there was a secretion in fact of the will in question.
10. We will come in a few moments to the question of the affidavit in 1930, a matter to which properly Mr. Chatterjee has drawn our pointed attention. The explanation is that the terms of the will showed that the accused was entitled to the property left by the testator subject to the legacies and annuities de hors the will. That may or may not be so as a matter of construction, but we are unable to overlook the point that has been rasied on behalf of the accused that he was advised that having regard to the terms of the will it was not necessary to obtain probate and also the fact that the will had passed into the lawful custody of the executor duly nominated and constituted under the terms of the will. If as matter of fact the accused had been advised that in the circumstances obtaining and having regard to the terms of the will, it was not necessary to obtain probate, that would furnish, in our opinion, sufficient explanation (this explanation is being added not for the purpose of justifying the action of the accused) for the action of the accused in suggesting in the affidavit of July, 1930, that the testator had died intestate. That affidavit had become necessary, we are informed, because the accused had to make arrangements for withdrawal of a certain amount of compensation money from the Land Acquisition Court in respect of an acquisition of a portion of the testator's estate; but whether that was so or not, the only point that need engage our attention is whether the explanation that has been submitted for the affidavit in. question is an explanation which may be taken into consideration. On the facts of this particular case we are reluctant to say that the explanation need not be taken into consideration. We think it should be taken into consideration.
11. The only further point that need be considered is whether if the executor obtains possession of the will with the knowledge of the solicitors who were responsible for the drawing up of the will, who were responsible for the custody thereof till February, 1926, it can be said in these circumstances, in addition to what has already been observed, that there was a secretion in the eye of the law and within the meaning of Section 477, Indian Penal Code. We have examined the entire record from cover to cover and we think that the accused may reasonably urge that there has been no secretion whatsoever of the will. The accused would have been well advised if he himself had acquainted his, mother of the facts referred to above, namely, that the will had passed into' his possession from the solicitors Messrs. Kar Mehta & Co. In various affairs of life, people commit various mistakes, but that is neither here nor there. The only question is whether the accused has placed himself in such a position that he does come within, the clutches of Section 477, Indian Penal Code. After the fullest and the most anxious consideration we have come to the conclusion that the accused has made good the ground on which the present Rule has been issued and that the proceedings started against the accused should be quashed and we accordingly direct that these proceedings be quashed and that the accused, if he is under any order for bail, should be discharge form such order.