MOHIM CHANDRA NATH BHOWMICK Vs. EMPEROR

JUDGEMENT

(1.) The facts necessary to be stated for the purpose of this rule are these: One Naimuddin was the complainant in a case under Section 426, I.P.C., against one Hanif and others, which was tried by Maulvi Mir Hossain, a Magistrate of the Third Class. The accused persons pleaded that the land concerned had been purchased by them and that the complainant Naimuddin was himself an attesting witness to the deed of purchase. The petitioner Mohim Chandra Nath Bhowmik gave evidence in support of the defence proving the execution of the deed and the signature of Naimuddin therein. Naimuddin, while the trial was pending, denied his signature in the deed and applied to the trying Magistrate for the prosecution of all concerned in the forgery. The accused persons were acquitted, the trying Magistrate being doubtful as to the forgery. After the case was over Naimuddin pressed his aforesaid application. The trying Magistrate instead of dealing with the matter himself, as he should have done, forwarded the papers to the Sadar Sub-Divisional Officer for necessary action. The Sadar Sub-Divisional Officer returned the pipers to the trial Magistrate with the following remarks: The only materials are the denial of execution by the complainant, and the dissimilarity of the left thumb impression of the complainant from those on the document Ex. 1. The Court too did not on the judgment come to any finding that it is forged. As such I would leave to complainant to move in the matter if the left thumb impression be really forged.

(2.) What other action on the part of the complainant was contemplated by these remarks it is difficult to see: evidently the learned Sub-Divisional Magistrate was thinking of sanction under Section 195 as distinguished from order for prosecution under Section 476, Criminal P.C., forgetting for the moment the changes effected by the amendments of 1923. As the trying Magistrate did not pass any final order in the matter the complainant moved Mr. L.B. Das, a Deputy Magistrate who had powers under Section 407(2), Criminal P.C. and that officer asked the trying Magistrate to pass such orders. When the said order of Mr. L.B. Das arrived before the trying Magistrate, he rejected the complainant's prayer in these words: Read the order of the appellate Court. Looked into the connected record including the petition of Naimuddi. I have not been personally convineed about the guilt of the accused party and I do not think it quite proper to proceed under Section 476, Criminal P.C.

(3.) The complainant then preferred an appeal which was admitted by the Joint Magistrate, and on the latter vacating his office Mr. L.B. Das, who it is said, succeeded him, dealt with the appeal and being of opinion that the acquittal of the accused persons Hanif and others was wrong and that a prima facie case was made out against the petitioner directed, under Section 476-B, Criminal P.C. a complaint to be lodged against the petitioner for offences under Secs.193 and 465 read with 109 I.P.C. On that complaint the petitioner has been put upon his trial. He impugned at his trial the validity of the proceeding taken against him on the ground that Mr. L.B. Das though he had power under Section 407(2), Criminal P.C. was not competent to pass the order under Section 476B, Criminal P.C., and that consequently the proceedings taken on that complaint cannot stand. The objection has been overruled by the Court in which the trial is going on and the Sessions Judge on being moved to make a reference to this Court has declined to interfere. The petitioner has then moved this Court and obtained the present Rule.