PERIANNA MUTHIRIAN Vs. MVENGU AIYAR

JUDGEMENT

(1.) These are respectively a Criminal Revision Petition and a Criminal Appeal arising out of certain proceedings (M.C. No. 24 of 1926) under Section 145, Criminal Procedure Code, taken before the Sub-divisional Magistrate of Musiri. The petitioner and appellant here, Perianna Muthirian, alleged possession of the immoveable property in dispute as lessee of certain persons holding it as trust property. His possession was challenged by the agents and lessee of one P. M. A. Muthia Chetti, who had purchased the land at a Court sale. For the purpose of these proceedings it is unnecessary to enter more fully into the circumstances leading up to the possession case. The petitioner impleaded as counter-petitioners in that case eight persons, of whom only the first two need be here mentioned, Narayanaswami Aiyar described as an agent of the Chetti, and Kothandapani Nadan, the Chetti's lessee. The petitioner's case was that on 5 June, 1926, Narayanaswami Aiyar came to the land with a body of men and disturbed the possession which he had enjoyed for some time past. The case for the counter- petitioner was that the Chetti had obtained possession on 17 April, that Kothandapani Nadan had on 24 May signed an agreement to take a lease of the lands and had on that day entered into possession; and that on 4 June a formal lease-deed had been executed. We are concerned here with the agreement to lease, or Varthamanam (Ex. VIII) which the petitioner denounces as a forgery. It was got up, according to him, after the police had made their local inquiry on 10 June, and because the counter-petitioners party had to account for seedlings obviously sown before the date of the lease-deed. This document purports to have been executed by Kothandapani Nadan to Narayanaswami Aiyar, to have been written and attested by one Ratnam Pillai and to have been attested by one Alagiri Rajah. The petitioner asserts that besides these participants, two other persons conspired to fabricate it, Vengu Aiyar, who is another of the Chetti's agents, and N. Ramaswami Aiyar, the High Court Vakil, who conducted the counter-petitioners case. On 16 April, 1927, while the possession case was still going on, the petitioner filed a complaint before the District Magistrate of Trichinopoly against Vengu Aiyar and N. Ramaswami Aiyar of abetment of forgery. The District Magistrate transferred the complaint to the Sub-divisional Magistrate of Musiri, who decided to dispose of the possession case before proceeding with it. As soon as that was done he took a sworn statement from the complainant and issued process. In response, the two accused persons filed what they term a "statement of objection," adducing grounds why they should be discharged without further inquiry; and the Sub-divisional Magistrate accepting those grounds, or some of them, in an order, dated 26 September, 1927, discharged the accused under Section 253 (2), Criminal Procedure Code. An application to the Court of Session, Trichinopoly, to revise that order was unsuccessful, and a further attempt is now being made here to upset it by means of the revision petition under disposal. The Criminal Appeal is preferred against an order of the Sessions Judge declining to proceed against Narayanaswami Aiyar and the two counter-petitioners to the revision petition under Section 476-A, Criminal Procedure Code.

(2.) Dealing first with the Criminal Revision Petition, Mr. Ethiraj for the petitioner concedes, as is indeed indisputable, that if at any stage the Court found a legal bar to the prosecution of the accused it was acting rightly in discharging them. The burden of establishing such a bar rests upon the counter-petitioner s, and it is argued that it is created in two separate ways by the terms of Section 195, Criminal Procedure Code--under Clause (b) of Sub-section (1) and also under Clause (c).

(3.) Under Clause (b) no Court shall take cognizance of any offence punishable under certain sections of the Indian Penal Code, including Section 193, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.