PONNUSAMI UDAYAR Vs. EMPEROR

JUDGEMENT

(1.) The two petitioners filed this criminal revision petition against the order of the Sub- Divisional Magistrate of Tirukoilur dated 6 October 1927 deciding to continue the criminal case filed against them by the police under Secs.465 and 109, I.P.C., and Section 411, I.P.C., respectively.

(2.) In a rioting case tried by the Sub-Magistrate of Tirukoilur ten persons were accused and they were defended by a vakil named Anantha Ayyar, now petitioner 2. At one of the hearings the tenth accused was absent and reported to be ill. The vakil offered to get a special vakalat from him, so that the case might be proceeded With in his absence. It is alleged that this special vakalat, instead of being executed by accused 10, who lived at a distance of nine miles from the Court, was fabricated in the witness shed adjoining the Court building. The vakil, it is said, dictated it; it was written by accused 9 in the rioting case and the son of the absent accused 10 affixed his father's name to it. This document was then produced in Court by the vakil as genuine. According to the Police version, the whole transaction in the witness shed was observed and as soon as the document was produced the attention of the Sub-Magistrate was drawn to the circumstances, a comparison of the signature with the admitted signatures of accused 10 was made and on the same day, the Sub-Magistrate sent the document to the police for investigation. The inquiry resulted in the institution by the police of the proceedings out of which this petition arose. Besides the vakil and the accused 10's son, accused 9 was also prosecuted but on the ground that he was a party to the proceedings in which the vakalat. was produced, and therefore that his prosecution could only have been initiated under Secs.195 (1) (c) and 476, Criminal P.C., by the Sub-Magistrate, the case against him was dropped. After the case against the other two accused had made considerable progress, the question whether their prosecution too was not incompetent in view of the same provision of law was raised and decided in the order now under reference.

(3.) This is the main point which has been brought up here. The question is whether, when an offence of forgery is committed by more than one person, one at least being a party. to the proceeding in which the document is produced, such participants in the forgery as are not parties to the proceeding may be prosecuted otherwise than under the provisions of Section 195 and 476, Criminal P.C. The answer to the question depends primarily upon the construction to be placed upon the term offence as it is used in Clause (c), Section 195 (1). Whether it denotes the transaction of forgery as a whole, so that the Court is debarred from taking cognizance of that transaction, including the shares taken in it by non-parties, as well as parties, or whether it refers only to the share taken in the transaction by a party, so that power to proceed against nonparties is not affected. It appears to me that the language of the section is not incompatible with either construction. It may be reasonable to construe the word offence as there used, as comprehending the whole transaction in which the act of forgery is committed, or it may be read in the sense in which it is used in some of the sections of the Criminal Procedure Code, e.g., Section 239, as the act of a single person who contributes his part to the transaction. An examination of the sections in Ch. 19 of the Code, headed of the charge, leads to the conclusion that the word there bears the latter or analytical meaning of an act of a single person. I have only further to observe that if the former and undoubtedly exceptional meaning is to be attached to it the language of the section might well have made this clear.