NARAJAPPA Vs. CHIKKARAMIAH

JUDGEMENT

(1.) This is a criminal revision petition against the order passed by the learned First Additional Sessions Judge, Bangalore Division, in Criminal Miscellaneous Appeal No. 2 of 1957. The facts and circumstances which have led to the present criminal revision petition, briefly stated are as follows :

(2.) There were proceedings under Section 145 of the Code of Criminaf Procedure in Criminal Misc. Case No. 17/55 in the Court of the First Class Magistrate, Tumkur. Amongst the documents which had been produced by the first party in those proceedings was a certain kandayam receipt which bore the date 15-12-1947 and purported to be for Rs. 66-11-3 and had been signed by Narajappa second member of the first party. This Narajappa appears to have been examined as P.W. 4 in the said proceedings and this receipt has been marked as Exhibit D-23. This receipt purported to show that the payment of the said amount of Rs. 66-11-3 had been made by Sidclara-makka the first of the first party; but, it also appears that there was an entry made by this very same Navajappa in the Khirdi showing that this sum of Rs. 66-11-3 had been paid by Chikkaramiab, the first member of the second party. The relevant Khirdi appears to have been marked as an exhibit in the case. The final order in the said Criminal Misc. Case was passed by the learned First Class Magistrate, Tumkur, on 14-4-1956. Subsequently, on 14-5-1958 an application I.A. No. 1 was filed by the first member of the second party. That application purported to be under Section 195 (1) of the Cri. P. C., and the prayer in the petition was to the effect that Exhibit D-23 was a forged document and that proceedings should be taken against the said Narajappa for having committed an offence punishable under Section 465 of the I. P. C. Orders on this application were passed on 21-0-1957 by the then Magistrate to whom the said application had been transferred and it was the successor that passed the orders on 21-6-1957. By the said order dated 21-6-57, the learned Magistrate dismissed the application I.A. No. I. In so dismissing that application, the learned Magistrate took into consideration the circumstances that no opinion had been expressed by his predecessor in regard to Exhibit D-23 and further that it was his predecessor that was tho proper person to have ordered prosecution had ho considered that the same was necessary. This order was taken up in appeal by the first member of tho second party to the Court of Session. Tho said appeal was Criminal Miscellaneous Appeal No. 2/1957 on the file of the First Additional Sessions Judge. Bangalore Division. The learned Sessions Judge took tho view that under Sub-section (1) of Section 476 of Cri. P. C., the holding of a preliminary enquiry was necessary and the order passed by the learned Magistrate rejecting the application without holding such a preliminary enquiry, could not be supported. Consequently, he allowed the appeal and remanded the case to the District Magistrate, Tumkur, directing him to hold a preliminary enquiry and then to pass such order as the Magistrate might find expedient. It is against this order passed by the learned Additional Sessions Judge, that the present revision petition has been preferred by the second member of the first party.

(3.) The view taken by the learned Additional Sessions Judge, to the effect that there should always be a preliminary enquiry before a Court can mako an order under Sub-section (1) of Section 476 of the Cri. P. C. does not appear to be correct. The relevant portion of Sub-section (1) of Section 476 runs as follows : "....such Court may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof....." It is seen from these wordings that the Court may record a finding to that effect and for that purpose may hold such preliminary enquiry, if any, as it thinks necessary. It is, therefore, clear that it is a matter left entirely to the discretion of the Court as to whether it should in the circumstances of any case hold any preliminary enquiry or not before recording a finding and making a complaint. The learned counsel for the respondent has not placed before me any authority in support of the view taken by the learned Sessions Judge. I do not think that it is proper to place any fetters on the discretion of the Court in the matter of holding a preliminary enquiry. Under these circumstances, the view taken by the learned Additional Sessions Judge is not correct.