HARIDAS SAHA Vs. DULAL CHANDRA SADHUKHAN

JUDGEMENT

(1.) This rule was issued upon the District Magistrate of 24 Parganas and upon the opposite party to show cause why the order of the District Judge which purports to have been passed under Section 476B, Criminal P.C., and which directs that a complaint be made of offences under Secs.465, 465/109 and 471, Indian Penal Code, should not be set aside. The material facts are as follows : The present petitioner Haridas Saha instituted a suit in the Court of the Subordinate Judge of Alipore in the year 1934 to set aside a certain revenue sale. That suit was heard by Mr. S.C. Chakravarty, an Additional Subordinate Judge of Alipore, and was : dismissed on 31 March 1936. On 25 May 1936, the present petitioner applied under Order 47, Rule 1, Civil P.C., for review of the decree dated 31 March 1936 on the ground of discovery of a new and important matter. Notice was issued under Order 47, Rule 4 by Mr. Chakravarty while still an Additional Subordinate Judge. Thereafter on some date between 24 June 1936 and 4 July 1936 Mr. Chakravarty was appointed Additional District Judge of Alipore. On 8 July 1936, the petitioner Haridas Saha applied to the District Judge for transfer of the review case instituted by him on 25 May 1936, to the; file of Mr. Chakravarty, Additional District Judge. The other parties to the review case gave their consent, and the review case was transferred to the file of Mr. Chakravarty as Additional District Judge.

(2.) On 17 July 1936 certain documents were filed in the Court of Mr. Chakravarty in that review case by a witness cited by the present petitioner Haridas Saha. When the documents were filed the learned Judge passed an order : "Let them be kept with the record." Subsequently, on 25 July 1936, the application for review was dismissed. In the meantime an appeal had been presented against the original decree by Haridas Saha to this Court. An application was made to this Court for permission to use the documents filed on 17 July in the review case as evidence in the appeal, and an order was obtained directing that these papers be printed as an appendix to the paper-book. On 18 March 1938, an order was passed by this Court to the effect that the application for permission to use these documents as evidence would be considered at the time of hearing of the appeal. The appeal was ultimately dismissed on 3 December 1940 and the application to treat these documents as evidence was also dismissed on that date. On 22 January, 1941, an application was filed under Section 476, Criminal P.C., in the Court of the Additional Subordinate Judge of Alipore for a complaint to be made against the present petitioner Haridas Saha. The learned Subordinate Judge heard the parties, took evidence and refused the application by his order dated 30 August 1941. An appeal against that order was preferred to the District Judge under Section 476B, Criminal P.C., and on 22 December, 1941, the learned District Judge allowed the appeal and directed that a complaint be made.

(3.) The ground upon which this rule has been pressed before us was that the learned Subordinate Judge who refused the application under Section 476, Criminal P.C., on 30th August 1941, had no jurisdiction to entertain the application, and that the learned District Judge had no jurisdiction under Section 476B, Criminal P.C., to pass the order which he did pass on 22 December, 1941. It was pointed out by Mr. N.K. Basu, appearing for the petitioner, that the documents which were alleged to have been forged and used with the knowledge that they were forged were filed in Court on 17 July 1936 in connexion with the review application of Haridas Saha. That review application had already been transferred to the Court of the Additional District Judge and was pending in the Court of the Additional District Judge on the date the documents were filed in Court. The review application remained in the file of the Additional District Judge until disposed of, and that review application was never again in the file of the Subordinate Judge after it was transferred from that file on 8th July 1936. Therefore it is argued that the proceedings in which the documents said to have been forged were used, were in the Court of the Additional District Judge and not in the Court of the Subordinate Judge of Alipore. Section 195(1)(c), Criminal P.C., requires that when the offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, the complaint shall be made by such Court or by some other Court to which such Court is subordinate. It is argued that the Court entitled to make a complaint under Section 195(1)(c) was the Court of the Additional District Judge of Alipore and the Court to which that Court was subordinate. The Subordinate Judge of Alipore was neither the Court in which the proceedings were pending nor the Court to which such Court was subordinate. Therefore the Court of the Subordinate Judge had no jurisdiction to pass an order under Section 476, Criminal P.C. In our opinion this contention is sound.