THOKALA SESHAMMA Vs. YELLATURI VENKAMMA

JUDGEMENT

(1.) This is an appeal under Section 476-B against the complaint of the District Judge of Kurnool made under Section 476 of the Cr. P.C. Appellants Nos. 1 and 2 propounded a Will of one Sami Reddi in answer to a suit brought by the plaintiff for the recovery of the properties of Sami Reddi who died on 15 January 1922. The 3 appellant is the writer and appellants Nos. 4 and 8 are the attestors of the Will. The Subordinate Judge came to the conclusion, after a full consideration of the evidence, that the Will was a forgery. On appeal the District Judge agreed with the Subordinate Judge in his conclusion that the Will was a forgery. The plaintiff's widow applied to the District Judge to take action under Section 476 of the Cr. P.C. The learned Judge has laid a complaint before the Sub-Divisional First Glass Magistrate of Kurnool against the appellants for offences under Secs.467, 193 and 196 of the Indian Penal Code

(2.) The first point raised by Mr. Venkatarayaliah is that the District Judge acted without; jurisdiction in laying a complaint about 4 months after he disposed of the appeal. He relies upon the Full Bench decision in Rahimadulla Sahib V/s. Emperor 31 M. 140 : 17 M.L.J. 584 : 3 M.L.T. 79 : 7 Cr. L.J. 54 and Aiyakannu Pillai v. Emperor 1 Ind. Cas. 597 : 32 M. 49 : 19 M.L.J. 42 : 4 M. L.T. 404 : 9 Cr. L.J. 41 and contends that the order of the District Judge should form part of the judicial proceeding in which the offence or offences are said to have been committed. The District Judge disposed of the appeal on 30 September 1924. The plaintiff's widow moved the District Court on 8 November 1924 for action under Section 476. The District Judge passed the order appealed against, on 5 February 1925. The decisions in Rahimadulla Sahib V/s. Emperor 31 M. 140 : 17 M.L.J. 584 : 3 M.L.T. 79 : 7 Cr. L.J. 54 and Aiyakannu Pillai V/s. Emperor 1 Ind. Cas. 597 : 32 M. 49 : 19 M.L.J. 42 : 4 M. L.T. 404 : 9 Cr. L.J. 41 and the decisions following them have no application to a complaint under Section 476 of the present Cr. P.C. Those decisions were passed under the old Cr. P.C. of 1898. The present Section 476 empowers a Civil, Criminal or Revenue Court, if it considers expedient in the interests of justice that an enquiry should be made into any offence referred to in Section 195 Clauses. (b) and (c) which appears to have been committed in or in relation to a proceeding in that Court, to hold such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing. Section 476, therefore, contemplates only a complaint and not an order for proceedings against any person who, it thinks, has committed an offence. The wording of Section 476 of the old Code was different from the wording of the present Section 476. Section 476 of the old Code was as follows: When any Civil, Criminal or Revenue Court is of opinion that there is ground for inquiring into any offence referred to in Section 195, and committed before it or brought under its notice in the course of a judicial proceeding, such Court, after making any preliminary enquiry that may be necessary, may send the case for inquiry or trial to the nearest Magistrate of the First Class." Under the present Cr. P.C., it is not only the Court in which the offence was committed, but also the Court which hears an appeal from that Court, is entitled to proceed under Section 476 and the present section contemplates a party moving the Court by an application to take action under Section 476 In Rahimadulla Sahib V/s. Emperor 31 M. 140 : 17 M.L.J. 584 : 3 M.L.T. 79 : 7 Cr. L.J. 54 the learned Chief Justice observes at page 144 Page of 31 M.--[Ed.: I think there is considerable force in the observation of the Chief Justice that if months after the trial the Court may act tinder Section 476 it is difficult to appreciate the necessity of Section 195. As regards the general policy of the law, I agree with the, view expressed by Geidt, J. I do not think --the learned Judge observes:-- that it was ever intended that when the proceedings had terminated and passed beyond the ken of the Court, the attention of the Court should be subsequently redrawn by some private person to the fact that in those proceedings there had been committed some offence in contempt of the Court's authority or against public justice which deserved punishment. The commission of the offence and the desirability of a prosecution should be so patent as to move the Court at the time to take action without the stimulus of an application by some interested person.

(3.) The two reasons given by the learned Chief Justice are absent now. Under Section 195 of the old Code, sanction was granted to a party for prosecution, but the present Section 195 has done away with the sanction. The second reason that the Court should act suo motu without the stimulus of an application cannot apply to the present section, for it does contemplate an application being made by a party for initiation of proceedings. The words, "Whether on application made to it in this behalf or otherwise" have been introduced into the present section. In Aiyakannu Pillai V/s. Emperor 1 Ind. Cas. 597 : 32 M. 49 : 19 M.L.J. 42 : 4 M. L.T. 404 : 9 Cr. L.J. 41 Sankaran Nair, J., holds that a proceeding under Section 476 does specifically authorise a Court proceeding under that section to make a complaint in writing signed by the Presiding Officer of the Court to a Magistrate of the First Class. Another reason assigned by Sankaran Nair, J., is that there is no appeal against an order under Section 476. The present Section 476-B does provide an appeal both against a complaint made under Section 476 as well as against an order refusing to lay a complaint before a Magistrate. It is clear from the wording of the present Section 476 that all the arguments which weighed with the learned Judges who decided Rahimadulla Sahib V/s. Emperor 31 M. 140 : 17 M.L.J. 584 : 3 M.L.T. 79 : 7 Cr. L.J. 54 and Aiyakannu Pillai V/s. Emperor 1 Ind. Cas. 597 : 32 M. 49 : 19 M.L.J. 42 : 4 M. L.T. 404 : 9 Cr. L.J. 41 for coming to the conclusion that the proceeding under Section 476 should be a part of the judicial proceeding before it or at least so soon after the termination of the judgment proceeding as to make the order under Section 476 a part of the judicial proceeding, are met by the changes made in the said section and by the enactment of two new Secs.476-A and 476-B. It is unnecessary to consider the other cases on the point, as we hold that the changes made in the Code have met the arguments advanced by the learned Judges for coming to the conclusion that the Court acted without jurisdiction, if it passed an order under Section 476 some time after the termination of the proceedings in which the offence complained of was said to have been committed. The case in Maung Shwe Phwe V/s. Ma Me Hmoke 85 Ind. Cas. 244, 3 R. 48, 3 Bur. L.J. 344, (1935) A.I.R. (R) 195, 26 Cr. L.J. 509 does not help the appellant. No doubt, if the Court after the lapse of considerable time makes a complaint under Section 476, such complaint is open to the objection that it was made after an undue delay. Each case would depend upon its circumstances. No hard and fast rule can be laid down as to within what time, a complaint should be made under Section 476. If a Court disposes of a case on the last working day of a term and initiates proceedings under Section 476 on the first day of the re-opening of the Court after the long vacation can it be said that the Court acts with undue delay. In this case the application was made within 40 days of the delivery of the judgment in the appeal. A similar application was made to the Subordinate Judge of Karnool and as the appeal was then pending, he dismissed the application with the remark "that the petitioner, if advised, may renew his application after the litigation ends". The application was renewed before the District Judge after the disposal of the appeal and the District Judge gave notice to the counter petitioner and laid a complaint on 5 February, 1925. It cannot be said that, in the circumstances, there ha3 been undue delay in instituting proceedings under Section 476.