JUGESHWAR SINGH Vs. EMPEROR

JUDGEMENT

(1.) The appellants have been convicted by the Sessions Judge of Gaya of offences committed in connection with an unregistered usufructuary mortgage deed which was used by the defence in a criminal case in which Jageshwar Singh and Jagdeo Singh were accused under Section 447, Indian Penal Code. Possession of a plot of land was in issue and the document purported to create a hypothecation of this plot in favour of Jageshwar and Jagdeo Jugal Lal's signature appeared on it as an attesting witness and it purported to be scribed by Parmeshwar Lal of Misirbigha. The document was found to be a forgery. The Honorary Magistrate Khan Sahib Syed Mohammad Islam, who disposed of the case, called on Jageshwar, Jagdeo and Jugal to show cause against their prosecution. It was alleged that the document was not written by Parmeshwar Lal but by Raghubar Dayal. He was also called on to show cause against prosecution. So was Bikhari Lal, another person whose name appeared on the margin as an attesting witness. The Honorary Magistrate purporting to act under Section 476, Indian Penal Code, complained against Jageshwar, Jagdeo and Jugal Lal, the first two under Secs.471 and 467 read with Section 120 and the third under Secs.193 and 467 read with Section 120, Indian Penal Code. His view was that the forged document came into being as a result of conspiracy and the complaint appears to have been intended to refer to Section 120B, Indian Penal Code. He declined to prefer a complaint against Raghubar Dayal and Bikhari Lal.

(2.) Against this order Shamdeo, the complainant of Section 447 case, preferred an appeal to the District Magistrate, who after reviewing the facts, found that there was a prima facie case against Raghubar Dayal and Bikhari also, and under Section 476B, Criminal Procedure Code, he complained against these two persons under Section 467 and Section 467 read with Section 120B, Indian Penal Code. He directed these two accused to be proceeded against in the same case as the other three persons already being prosecuted. The Sessions Judge found that the document was forged, being his judgment on possession of the land by the opposite party, Shamdeo Singh ; on the production of rent receipts by Shamdeo ; on the fact that the original raiyati khatian was in possession of Shamdeo ; on the fact that proceedings have been taken by Shamdeo under Section 40, Bengal Tenancy Act ; on the absence of mention of this document in the written statement of Jageshwar and Jagdeo in the Section 447, case; on the fact ,that the stamp paper was of insufficient value being on 4 annas stamp instead of 8 annas; on the fact that the purchase of the stamp paper as endorsed thereon was later than the date of the alleged document ; and on the evidence of the hand-writing expert and other persons as to handwriting. The explanations offered for the appellants entirely failed to displace the reasoning of the Sessions Judge which is fully supported by the evidence, and the argument in the appeal has been directed mainly to an attack on the regularity of the initiation of the proceedings. The order of Khan Sahib Syed Muhammad Islam for the prosecution of the first three accused was dated February 7, 1934, and his complaint was presented on February 16. At that time he was not exercising the powers of a Magistrate. He had been vested with such powers by Notification No. 2581, dated September 27, 1930, for a period of three years expiring on September 26, 1933. He was again vesled with magisterial powers on July 18, 1931, and it is argued that in the interval he was not a Court capable of initiating proceedings under Section 476. The Sessions Judge thought that, once a commitment had been made it was too late for the accused to take an objection against the initiation of the proceedings which they ought to have taken at an earlier stage. They had [not appealed to the District Magistrate against Abe order purporting to be made under Section 476, directing their prosecution, nor, to the Sessions Judge against the order of the District Magistrate under Section 476B.

(3.) The Sessions Judge's view is supported by the decision of the Calcutta High Court in Jabbar Ali V/s. Emperor AIR 1929 Cal. 203 : 116 Ind. Cas. 632 : 30 Cr.LJ 656 : 49 CLJ 193. The decision is followed by the same Court in Ali Ahmad v. Emperor AIR 1932 Cal. 545 : (1932) Cr. Cas. 545 : 140 Ind. Cas. 544 : 34 Cr.LJ 39 : 55 CLJ 336 : Ind Rul. (1933) Cal. 11. The intention of the legislature appears to be to prevent innocent persons being put on trial at. the instance of persons likely to be moved by motives of revenge and not protect guilty persons from the penalty of their crimes. There is another answer available to the prosecution and that is that the Sub Divisional Magistrate, before whom the case against all these appellants was inquired into, had before him the complaint of the District Magistrate under Section 476-B against two of the persons who were put on trial. What Section 195, prohibits is taking cognizance of an offence of a certain class except on a complaint of a Court ; but where a Court has complained of an offence specified in this section, then cognizance can be and is to be taken of the whole case, that is to say prosecution will go forward as against all the persons found to be concerned in the offence and also under any sections found applicable to (he facts which are the subject-matter of the complaint. It was so held in this Court in the case of Mathura Singh V/s. Emperor 15 PLT 438 : 155 Ind. Cas. 58 : AIR 1934 Pat. 467 : (1934) Cr. Cas. 1062 : 36 Cr.LJ 641 : 7 RP 536 and in Jamuna Singh v. Laldhari Singh 15 PLT 694 : 152 Ind. Cas. 228 : AIR 1934 Pat. 536 : (1934) Cr. Cas. 1191 : 36 Cr.LJ 26 : 7 RP 156. The complaints considered in those cases were complaints by private parties and not of offences requiring a complaint by a Court for the institution of proceedings.