LALA MATHUR PRASAD Vs. PITAMBAR SINGH

JUDGEMENT

(1.) This application in revision is directed against a complaint made under Section 476, Criminal P. C, by the Second Subordinate Judge, Gaya, against the petitioner for his prosecution under Secs.465 and 471, 5. P. C. The petitioner is a pleader practising at Gaya. One of his clients Pitambar Singh deposited through him on different dates two sums, each of Rs. 515 under s, 83, T. P. Act. Two miscellaneous cases under Section 83 were thereupon started. In the case relating to the first deposit, the mortgagee appeared and filed objection, and the case was disposed of. In the other ease, the mortgagee filed no objection. Subsequently, on the strength of two compromise petitions purporting to have been filed on behalf of Pitambar Singh and the mortgagee, the petitioner withdrew the said sums. These compromise petitions which were filed on different dates were signed on behalf of Pitambar Singh by the petitioner and on behalf of the mortgagee, in the case of the first deposit by his pleader who had previously filed the objection on his behalf and in the case of the second deposit by another pleader who filed a vakalatnama purporting to be signed by him. The case of Pitambar Singh is that he never instructed the petitioner to file any compromise petition or to withdraw the amounts and that the compromise petitions were forged by the petitioner. It is said that the signature of the mortgagee's pleader on the first petition was forged by the petitioner and that the other petition was signed by another pleader on behalf of the mortgagee on the petitioner falsely identifying before that pleader a stranger as the mortgagee.

(2.) On the application of Pitambar Singh an inquiry under Section 476, Criminal P. C, was held by the learned Subordinate Judge. He found that a prima facie case under Secs.465 and 471, Indian Penal Code was made out against the petitioner. He accordingly made a complaint. On appeal the Subordinate Judge's order has been upheld by the learned Sessions Judge. Hence, this application in revision. It has been argued by Mr. Jaleshwar Prasad on behalf of the petitioner that the petitioner not being a party to any proceeding in Court, the offences complained of do not come under Section 195(1)(c), Criminal P. C, and therefore the learned Subordinate Judge had no jurisdiction to make a complaint under Section 476. Section 476 provides for an inquiry by a Court into "any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (e), which appears to have been oommitted in or in relation to a proceeding in that Court." In the present case the relevant clause of Section 195, Sub-section (1), is Clause (c) which says: No Court shall take cognizance of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such 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, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.

(3.) As Secs.195 and 476 now stand after the amendment of 1923, it is clear that they must be read together. Section 195, Sub-section (1) lays down a bar to the cognizance of certain offences. Section 476 lays down the procedure as to how the bar imposed by Section 195, Sub-section (1), Cls. (b) and (c), is to be removed. Section 476 operates only to remove the bar created by Section 195, Sub-section (1), Cls. (b) and (c). Where, therefore, there is no bar created by these clauses of Section 195, Sub-section (1), Section 476 has no operation. Nor does Section 476, as it now stands, apply to offences referred to in Section 195, Sub-section (1), Clause (a), with regard to which the complaint is to be by the public servant concerned and not by a Court. From Section 195, Sub-section (1), Clause (c), it is clear that it bars the cognizance of the offence of forgery and certain connected offences, when the offence is committed by a party to any proceeding in Court. It creates no bar if such offence is committed by any person who is not a party to any proceeding in Court. Consequently in such case Section 476 has no application. The view I take is supported by the decisions in Provatranjan V/s. Umasankar , Emperor V/s. Kushal Pal Singh and Tulsi Ammal v. Danalakshmi A. I. R. 1934 Mad. 316. All these cases refer to the offence of forgery. In the Calcutta case, Rankin C. J. with whom C. C. Ghose J. agreed, said: It is clear to my mind that Section 476 can only apply to cases, where, by reason of a provision in the Code, the Magistrate requires a complaint by a Court, in order that he may take cognizance of the charge.