BHAGWANDAS NARANDAS Vs. D D PATEL AND CO

JUDGEMENT

(1.) [after setting out facts, the judgment proceeded :] Section 476 (1) of the Criminal Procedure Code is as follows : When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made 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, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate. Provided that, where the Court making the; complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint, For the purposes of this sub-Section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class.

(2.) THE former Section 476 was amended by Section 128 of the Code of Criminal Procedure (Amendment) Act, 1923. Several decisions based upon the former Section have been cited to me, but, as was pointed out by Crump J. in Bai Kasturbai v. Vanmalidas (1925) I. L. R. 49 Bom. 710 : s. c. 27 Bom. L. R. 616, the effect of them is very materially affected by the amendment.

(3.) THEN it was contended that the applicant is not entitled to adduce evidence outside the record of the proceedings out of which the application arises to show that evidence given in those proceedings was false. In support of this contention certain observations of the Judges in In re Chatur Jethaji (1912) 34 Bom. L. R. 1247 were relied upon. They did not, however, say that the Court could look only to the record of the proceedings for the purpose of ascertaining whether the evidence was false. This was certainly not the opinion of the Judges in reference to the former Section in Lakshmidas Lalji, In re. In that case Chandavarkar J. said (p. 191) : "an offence may be committed in the course of a trial before a Judge, and no one may know anything about it. It may be discovered long after the trial has ended ; the Judge or his successor may come to know of it in the course of some other trial or in some other way. No private party may think it worth his while then to apply for a sanction to prosecute ; and yet in the interests of public justice it may become necessary that there should be a prosecution. " These observations in my opinion apply with even greater force to the present Section, which contains the words which were not present in the former Section "whether on application made to it in this behalf or otherwise. " In my view in deciding whether it is in the interests of justice that an enquiry should be made the Court is not confined to the record of the proceedings, but is entitled to take into account and consider information otherwise acquired.