VARADARAJULU NAIDU Vs. EMPEROR

JUDGEMENT

(1.) This is a Reference by the Chief Presidency Magistrate, Madras, and the questions referred are: (1) Whether the complaint preferred in, pursuance of an order passed by the Officiating Chief Justice on an office note is an. order passed by the Court within the meaning of Section 476, Criminal P.C. (2) Whether the Officiating Chief Justice could pass an order under Section 176, Criminal P.C., in a case where no orders were passed under Section 476, Criminal P.C., either by the trial Judge or his successor or the appellate Bench that decided the Original Side appeal against the judgment and decree in C.S. No. 542 of 1931. (3) Whether the Officiating Chief Justice could be deemed to be the successor to the trial Judge who decided C.S. No. 542 of 1931 in the exercise of the original civil jurisdiction.

(2.) The facts are set out in the order of reference, and briefly stated, they are that during the trial of C.S. No. 542 of 1931 on the file of the High Court, two documents dated 10 March 1928 and 10 May 1928, purporting to be certified copies of orders dated 2 March, 1928 and 26 April 1928 alleged to have been passed in O.P. No. 38 of 1928, were filed on behalf of one of the defendants. The trial Judge, the present Chief Justice, found that the documents were fabricated and used by Varadarajulu Naidu, one of the defendants in the suit, knowing them to be such, and the matter was under the directions of the trial Judge reported to the police for necessary action. The police filed a charge-sheet against Varadarajulu Naidu under Section 471 read with Section 466, I.P.C., and he was committed to the High Court Sessions for trial. There was however no complaint in writing by the High Court as required by Section 195, Criminal P.C., and the order of committal was quashed by Cornish, J. on the ground that the offence under Section 471, I.P.C., cannot be taken cognizance of except on the complaint of the Court in which the documents were given in evidence. The Original Side office then put up a note to the Officiating Chief Justice setting out the entire facts, and the Officiating Chief Justice passed an order under Section 476, Criminal P.C., directing the Registrar to make a complaint under Section 471 read with Section 466, I.P.C. The complaint was filed accordingly and process was issued to the accused. Objection was taken by him to the validity of the complaint and hence this reference.

(3.) The order was in terms passed under Section 476, Criminal P.C., and the real question is whether the Officiating Chief Justice had no jurisdiction to pass the order. The complaint required by Section 195, Criminal P.C., is the complaint of the Court in which the documents were given in evidence and not of the trial Judge, and as pointed out in Bai Kasturbai v. Vanmalidas AIR 1925 Bom 436, when a suit is tried by a Judge of the High Court, the term Court occurring in the section must be taken to mean "the High Court". There is nothing to prevent any Judge of the High Court from dealing with the matter though as a matter of convenience this would seldom be done, and the matter was in this case placed before the Officiating Chief Justice, as the trial Judge was absent at the time. The Court may, under Section 476, Criminal P.C., make the complaint on the application made to it or otherwise, and it need not hold a preliminary enquiry. Notice to the person proceeded against is not essential, and it is apparent from the order itself that it was passed by the Officiating Chief Justice in the exercise of ordinary original jurisdiction. There is therefore no substance in the contention that the Officiating Chief Justice had no jurisdiction to pass the order under Section 476, Criminal P.C., and questions 1 and 3 do not arise. The proper course for the accused was to appeal against the order under Section 476, Criminal P.C., and it is queer that objection should have been raised and permitted before the Magistrate. The reference is answered accordingly and the records will be retransmitted to the Chief Presidency Magistrate for proceeding with the case according to law.