1. The circumstances of this case are as follows : The petitioner, Sirat Chandra Sen, is a Naib of the Bijui Raj.
2. The Raj brought a rent suit against one Ramnath Sonar and on June 2nd, 1914, obtained a decree for costs amounting to Rs. 6-2-9, with an order that if the turn were not paid within one month he should be ejected from his holding. On December 23rd, 1915, the Raj filed an application for execution of the decree, and this application was verified by the petitioner. There were several inaccuracies in the petition but it is not necessary to deal with them, for the substantial point is the allegation that the sum had been paid within one month from the decree. The result of the execution proceedings was that Ram Nath was ejected from the holding on May 19th, 1916. Then a fresh tenant was inducted on the land, and there followed a struggle between him and Ram Nath, which caused the local Magistrate to institute proceedings under Section 145, Criminal Procedure Code. In the course of the proceedings Ram Nath set out what he alleged to be the true facts about the decree and the execution proceedings. On the conclusion of the case under Section 145 the Magistrate submitted a report to the Munsif, and the latter after making an enquiry has passed an order under Section 476, Criminal Procedure Code, directing the prosecution of the petitioner.
3. The petitioner obtained this Rule on two grounds, viz., that the Munsif had no jurisdiction, and that the facts do not warrant the order.
4. Regarding the second ground I wish to say no more than this, that on the facts we are not prepared to interfere.
5. With respect to the first ground, the execution proceedings may be said to have come to an end when the order for ejectment was carried out on May 19th, 1916. The present order under Section 476, Criminal Procedure Code, was passed on May 30th, 1918. The argument on behalf of the petitioner is that the offence 'was not committed before the Court or brought under its notice in the course of a judicial proceeding.' I cannot myself see any substance in this argument; the offence, if any, was committed before the Court in the course of a judicial proceeding, although knowledge that the offence had been committed did not come to the Court until long after the close of the proceeding, and I can see nothing in the plain meaning of the words which I have quoted to suggest that the Court is powerless to deal with an offence committed before it merely because it was not aware of the offence until after the judicial proceeding had terminated.
6. It is urged, however, that support for the argument is to be found in the case of Begu. Singh v. Emperor 34 C. 551 : 11 C.W.N. 568 : 5 C.L.J. 508 : 5 Cr.L.J. 398 : 2 M.L.T. 298 decided by a Full Bench of this Court. It is true that Maclean, C.J., spoke of the power under Section 476, Criminal Procedure Code, as 'a power exerciseable only at, or immediately after, the conclusion of the trial in which the offence is alleged to have been committed' and Harington, J., described the section as intended to enable a Court to deal promptly with an offender.' But these remarks must be read in reference to the facts of the case then before the Court. The facts are stated very clearly at the beginning of the report, and they differ from those of the present case in the very important point that all the materials for forming an opinion were before the Court before the proceeding came to an end. The learned Judges did not have to consider the question now before us, and I think it would be wrong to treat the remarks which I have quoted as intended to cover circumstances like those of the present case. My only difficulty arises from the remarks of Chandavarkar, J., in the case of Lakshmidaa Lalji, In re 32 B. 184 : 10 Bom.L.R. 28 : 7 Cr.L.J. 35 : 3 M.L.T. 116, but they can be explained by the fact that that judgment was delivered before the later Full Bench case of Bahadur v. Eradatullah Mallick 6 Ind. Cas. 801 : 14 C.W.N. 799 : 12 C.L.J. 45 : 11 Cr.L.J. 407 : 37 C. 612, and the learned Judge's argument depends mainly upon that part of the decision in Begu Singh's case 34 C. 551 : 11 C.W.N. 568 : 5 C.L.J. 508 : 5 Cr.L.J. 398 : 2 M.L.T. 298 which was overruled. I think, therefore, that Begu Singh's case 34 C. 551 : 11 C.W.N. 568 : 5 C.L.J. 508 : 5 Cr.L.J. 398 : 2 M.L.T. 298 does not support the argument put forward on behalf of the petitioner.
7. On the other hand the case of Tilak Pandey v. Emperor 29 Ind. Cas. 97 : 13 A.L.J. 466 : 37 A. 344 : 16 Cr.L.J. 465 supports the view that I have expressed.
8. In my opinion the Rule must be discharged.
Shamsul Huda, J.
9. In my opinion ordinarily the powers under Section 476 of the Criminal Procedure Code should be exercised only at or immediately after the conclusion of the trial in which the offence is alleged to have been committed and by the Judge before whom it was committed or to whose notice it was brought in the course of a judicial proceeding. But as pointed out by Geidt, J., in the Full Bench case of Begu Singh v. Emperor 34 C. 551 : 11 C.W.N. 568 : 5 C.L.J. 508 : 5 Cr.L.J. 398 : 2 M.L.T. 298, no universal rule can be laid down that in no case can the order for a prosecution be made by an officer other than that before whom the offence was committed.' This view is not inconsistent with the decision of the Full Bench in the case of Bahadur v. Eradatullah Mallick 6 Ind. Cas. 801 : 14 C.W.N. 799 : 12 C.L.J. 45 : 11 Cr.L.J. 407 : 37 C. 612. In that case, it may be observed that the proceedings under Section 476 of the Criminal Procedure Code were initiated by the Munsif before whom the offence was committed, but this officer was transferred while the enquiry was still pending and his successor finished the enquiry and passed the order under Section 476 of the Criminal Procedure Code.
10. In this view of the case I agree with my learned brother in discharging the Rule. In coming to this decision I am largely influenced by the consideration that the party aggrieved is not likely to apply for sanction under Section 195 of the Criminal Procedure Code against the Naib of his own landlord. There is undoubtedly a case for enquiry and having regard to the facts I do not think I would be justified in shutting it out.