GOVINDA IYER Vs. REX

JUDGEMENT

(1.) I am of opinion on the construction of the section that the words "any offence referred to in Section 195" refer to offences within the scope of Section 195, and not to all offences against sections of the Indian Penal Code enumerated in Section 195 whether or not they are within the scope of that section. The preponderance of authority is in favour of this view, beginning with Abdul Khadar v. Meera Sahib (1892) I.L.R. 15 Mad. 224. Parker and Shephard, JJ, gave no reasons for their decision in that case, but they were no doubt familiar with the history of the section, and knew that the words " committed before or brought under its notice in the course of a judicial proceeding" were first introduced into the section in the Code of 1882 as a further limitation on its operation, and that the corresponding sections of the Codes of 1861 and 1872 were clearly limited to cases coming within the operation of the sections corresponding to Section 195 of the present Code. In the Code of 1872, Section 471 (now 476) was immediately preceded by Sections 467, 468 and 469/which in 1882 were consolidated and transferred as Section 195 to an earlier part of the Code. Section 171 began thus: " When any Court, Civil or Criminal is of opinion that there is sufficient ground for enquiry into any charge mentioned in Sections 467 468, and 469; the Court, after making such preliminary enquiry, etc." The marginal note " Procedure in cases mentioned in Sections 467, 4 68 and 469", meaning, of course, procedure in cases mentioned in those sections where such proceedings were taken by a Civil or Criminal Court in my opinion correctly represents the effect of the section. There appears to me to be no sufficient reason for holding that Section 471 of the Code of 1872 or the corresponding section of the Code of 1861, intended to give all Courts, Civil or Criminal an unlimited power of originating prosecutions under all the sections of the Indian Penal Code mentioned in the sections referred to, or that the substitution of the words " any offence referred to in Section 195" for "any charge mentioned in Sections 467, 468 and 469" had that effect. On the1 contrary the power conferred on the Court by Section 471 of the Code of 1872, even as restricted with reference to the preceding sections, was apparently considered too wide, and was further limited in 1882 by imposing the restriction that the offence must have been " committed before it or brought under its notice in the course of a judicial proceeding." The attention of the learned Judges who decided Akhil Chandra De v. Queen Empress (1895) I.L.R. 22 Cal. 1004 and of the referring Judges in this case was not called to the fact that Sections 195 and 476 of the present Code were not enacted for the first time in their present form, in which case they might have been expressed differently and other cases, such as the present, included, or to the fact that the awkwardness or tautology to which they refer was the result of introducing a further limitation nito the section by the words added in 1882. In some cases covered by Section 195, the new restriction was no doubt unnecessary as pointed out by the referring Judges, but as a matter of drafting it was the easiest course to make the new restriction in general terms even at some risk of tautology. I may add that, where sections are repealed and re-enacted in slightly different form, there is a presumption against implied as contrasted with express alterations in the scope of the section. I would answer the question in the affirmative. Ayling, J.

(2.) I agree. Kumaraswami Sastri, J.

(3.) I agree.