DULAL KANTI DAS Vs. STATE

JUDGEMENT

(1.) On conclusion of an enquiry in a proceeding under S.109 Cr P. C against one Gour Chandra Ghose, the learned Sub divisional Judicial Magistrate, Ranaghat, directed him to execute a bond of Rs. 500/- for maintaining good behavior. After Sri Ghosh and his learned advocate Sri Monomohan Das executed the bond in terms of the said order it was handed over to Dulal Debnath, assistant Sub-Inspector of Police then attached to Ranaghat Criminal Court for placing the same before the learned Sub divisional Judicial Magistrate for acceptance When the bond was placed before the learned Magistrate on August 22, 1979 it appeared to him to be forged. He enquired into the matter and found that Sir Debnath, the petitioner in this Rule, in collusion with the advocate Sri Das and others forged the bond and attempted to use the same as genius. The learned magistrate forwarded the report of his enquiry to the Sessions Judge and the Chief Judicial Magistrate of Nadia; and the latter, in his turn referred the matter to the Superintend before the Sub-divisional Judicial Magistrate, Ranaghat on 12.11.79 and prayed for bail in the said case. The learned Magistrate held that the case instituted against the petitioner was not maintainable in view of S.195(1)(b) of the Cr. P.C. And released the petitioner forthwith after making certain caustic remarks against the Sub-divisional Police Officer. Aggrieved by the said order the State preferred a provisional application before the learned Sessions Judge, Nadia, who set aside the order of the learned Magistrate and directed him to proceed against the accused in accordance with law. The above order of the learned Judge is under challenge in this Rule.

(2.) I am in complete agreement with the learned Sessions Judge that S. 195(1)(b) has no manure of application in the facts of the instant case. The prohibition under that section applies to offence committed in respect of a document produced or given in evidence in a proceeding in any Court (emphasis mine). In the instant case it cannot be said that the bond in respect of which forgery is alleged to have been committed was produced in a proceeding in a Court. It is undoubtedly true that the bond was produced before a Magistrate, but at stage. When the bond was produced there was no proceeding in a Court as the proceeding, which was earlier pending in the Court, namely, the proceeding under S.109 Cr.P C. Had been concluded. Acceptance of a bond often the proceeding is concluding, is administrative acts of the Magistrate and not a judicial act; and such functions of a magistrate cannot be equated with the judicial functions of a Court. This distinction was pointed out in the case of Kamalapati Trivedi v. State of West Bengal, reported in (1980) 2 Supreme Court Cases, page 91, Justice Koshal, speaking for the majority, observed inter alias as follows:

(3.) I, therefore, reject this application and discharge the Rule. Let records to sent down forthwith to enable the learned Magistrate to act in terms of the order of the learned Sessions Judge. Rule discharged.