TaxTMI 
TaxTMI 
1960 (11) TMI 143
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....Court, which may be taken in evidence and kept with the record. On 31-7-57 the petitioner filed a petition praying to send the above-mentioned patta for examination to the expert at Nasik. This petition, however, was rejected on the ground that, according to the plaintiff, who filed the patta, it did not relate to the land in suit, and, therefore, it was not a relevant document for the purpose of deciding the title and possession of the plaintiff with regard to the disputed land. On 29-10-57 the suit was transferred from the 1st court of the Munsif at Hajipur to, the court of the Additional Munsif of the same place, according to the order of the District Judge. Before the Additional Munsif, the petitioner filed a petition on 19-12-57 asking the court to inspect the" disputed patta and to mention in the order sheet that the stamp affixed on it is of King George V. On this petition, the Additional Munsif inspected the patta and recorded his memo of inspection, in the order sheet of that day, to the following effect: Inspected the alleged Khista patta filed by the plaintiff on 27-5-57. It purports to have been executed on 5-6-1900 Fifth day of June Nineteen hundred and six....
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....rned Munsif because the petitioner wanted just to satisfy his own sense of grudge. He also entertained doubts about the competency of the Munsif, 2nd Court, to file complaint as contemplated by Section 476, Code of Criminal Procedure. 6. The defendant, thereupon, being aggrieved by the above order, came up in revision to this Court and obtained the Rule under consideration. 7. The first point, raised by Mr. Hussain, was that the reasons given by the Court of appeal below for disallowing the application of the petitioner under Section 476, Code of Criminal Procedure, are erroneous and his decision is reverse (Sic). It was further argued that the court of appeal below has erred in law in holding that as the patta was not exhibited in the suit and the court trying the suit had no opportunity to express its opinion on its genuineness or otherwise, it cannot be said that the plaintiff had committed an offence under Section 471 of the Penal Code, simply because he filed if in court, intending thereby to use it in evidence, because, he submitted that, the word "uses", occurring in Section 471 of the Penal Code, also includes filing of the document, even though, it is not subsequentl....
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....r used dishonestly or fraudulently. The nature of the user is not material. It is, therefore, not necessary that the court should accept a document produced before it or filed in court. If a person puts forward a document as supporting his claim in any matter, whether that document is acted upon by the court, or used in evidence, is immaterial for the purpose of constituting 'use' of the document by the party within the meaning of this section. The use of a document as genuine must be fraudulent or dishonest. The use of a forged document, which is contemplated by this Section, is such use as causes wrongful gain or wrongful loss. The use of a forged document will be fraudulent and dishonest under this section, even though the document itself is unnecessary for the case of the party who uses it, and, though, in fact, he has a perfectly good title without it. 16. There is, therefore, no doubt that in order to bring a person within the purview of Section 471, it is enough if he files a forged document, which he knows or has reason to believe that it is a forged document. 17. The view of the court of appeal below, therefore, that because there is nothing to show that t....
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....sented, but either rejected or not taken into account by the court. 21. In 17 C W N 94, it was held by a Division Bench of the Calcutta High Court, presided over by Holmwood and Imam, JJ., that the filing of a forged document as the basis of a plaint or as a necessary sequel to the pleas in the plaint constitutes an user of it within Section 471, I.P.C., and it is incumbent on the person using it to show that he filed the document in all good faith believing it to be genuine. 22. It was, further, held that the mere fact that a litigant is interested in establishing the contents of a forged document filed by him in support of his case does not raise the presumption that he filed it knowing it to be forged. 23. The facts of the above case, however, are very much similar to the facts of the present case, and, therefore. the above case is of great significance here. In the just mentioned case, the accused filed a forged document in support of his case, but, when the forgery was discovered, he fled away without prosecuting his case and without attempting to offer any explanation. On these facts, it was held that, this conduct of the accused was not consistent with his innocence....
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....itted", in Section 476, Code of Criminal Procedure, also show that the intention of the Legislature is that there must be sufficient materials before the Court to show that an offence is likely to have been committed. Where there is no legal evidence which goes to show that there is reason to believe that an offence has been committed and where it is obvious that the prosecution is bound to end in a failure a complaint ought not to be preferred. 27. The learned District Judge has kept in view the above principles, and, therefore, his opinion, which is a judicial opinion based on evidence before him, and not on fanciful or empty grounds, cannot be said to> be perverse or based upon a mere surmise or suspicion. The order of the learned Judge, therefore, is not vulnerable on the above grounds. 28. It was, next argued, by Mr. Hussain that the learned District Judge has wrongly held, that as the disputed patta was filed in the suit which was decided by the Additional Munsif, on the suit being transferred to him from the First Munsif, the Second Munsif, to whom the proceeding under Section 476 of the Code of Criminal Procedure was transferred on the abolition of the Additional Cour....
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....aikar ILR 58 Cal. 1117 : and, Purna Chandra Dutta v. Sheikh Dhalu 34 Cal WN 914. 31. In 27 Cri. LJ 780 : AIR 1928 Sind 215. A Division Bench of the Sind Judicial Commissioner's Court held that the only Court which can exercise the power conferred under Section 476 of the Cr. P.O. is the Court which has jurisdiction over the suit in which the alleged offence has been committed, whether such suit was instituted in such court or came to its file, by transfer from any other Court or otherwise. 32. In ILR 58 Cal 1117 : a Division Bench of the Calcutta High Court held that there is only one Court of Sessions in each sessional division, sitting at different places and manned by a number of Judges, and, therefore, when an offence of perjury is committed before one Judge of a Court of Session, a complaint by any other judge of that Court is a valid complaint. 33. In 34 Cal WN 914 another Division Bench of the Calcutta High Court held that a Court of law does not consist of the particular individual or individuals who may be presiding over the proceedings therein at any particular moment but it is a permanent institution, and, therefore, any judicial officer who sits in the Cour....
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.... in that court' is necessarily naturally wide because it has to cover offences under Clause (b) as well as Clause (c) Sub-section (1) of Section 195 of the Code. The words "in relation to a proceeding" in Section 476 mean that the offence has entered as a component into the proceeding. The offence need not have been committed before the Court, and it may have been committed before the proceedings began, but it is indispensable that the offence must in some manner have affected these proceedings or been designed to effect them or come to light in the course of them. An offence committed after the close of the proceedings, is, as such, outside the scope of Section 476 Cri P.C. Section 476, therefore, like Section 1.95(l)(b) applies when the offence is committed not only in a proceeding in a Court of law, but also in relation to a proceeding in such Court. These words "in or in relation to a proceeding in court" occur in Section 476, as well as in Clause (b) of Sub-section (1) of Section 195, but not in Clause (c) of Sub-section (1) of Section 195. These words have been left out in Clause (c) of Section 195(1), because the sense produced by these words is sufficiently con....
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....e court before which the offence is alleged to have been committed and not by any other Court. The power to direct prosecution is conferred 'by Section 478, on the "Court" and not on the particular officer who fills the judicial office at a particular time, and therefore, the successor in office is competent to make an order under Section 476 in respect of an offence committed before his predecessor-in-office. This has now been made clear also by Section 559(1) of the Code. But where a court is abolished and sometimes afterwards the said court is restored, but with its territorial limits somewhat curtailed, the court that is reconstituted cannot be held as the same as the one that had ceased to exist, because there is no such continuity. If the Court is not a permanent one, with a perpetual succession of judges, but is only a temporary one, or an additional court created for some time for some special purpose, and, thereafter, it is abolished, then it is only the superior court, to which that temporary or additional court, was subordinate within the meaning of Section 195(3), that can make a complaint in the manner provided by Section 476, under Section 476 A of the Code.....
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....transfer the proceeding under Section 476 Cri. P.C. from the Additional Munsif to the Second Munsif, in my opinion, he could not do so, for the obvious reason that a proceeding under Section 476 Cri. P.C. is a special proceeding which must be decided only by the two courts, mentioned in Section 195(l)(b) or Section 195(1)(c), as the case may be, read with Section 476 of the Code of Criminal Procedure. The District Judge cannot transfer such a proceeding under Section 476 Cri. P.C., for whatever reason it may be, to a court, which, in view of Section 195(l)(b) and (c) read with Section 470 Cri. P.C. has no jurisdiction either to entertain the application or make a complaint, because it is not one of the two courts mentioned in S. l95(l)(b) and (c) Cr. P.C. Section 195 contains an express prohibition against taking cognizance of the complaint, in the instant case, for an offence under Section 471 Cri. P.C., alleged to have been committed in relation to a proceeding before another court, which was not subordinate to it, within the meaning of Section 1953 Cri. P.C. 44. This question was considered by a learned single judge of the Allahabad High Court, Ashwortht J., in Rameshar La....
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....hich appeals ordinarily lie from that Court, to entertain the question of preferring a criminal complaint. In my opinion also, the word 'proceeding" in Section 24 of the Code of Civil Procedure, covers all proceedings contemplated at the date when the Civil Procedure Code was passed in 1908 and it does not cover a special proceeding not then in contemplation but introduced subsequently by the Criminal Procedure (Amendment Act (XVIII of 1923) in 1923. This construction of Section 24 of the Code of Civil Procedure is quite consistent with the scheme of Section 476 Cri. P.C. in respect of the matter of a Court making complaint for offences mentioned in Section 195(1)(b) and (c) Cr. P.C. From the terms of Section 476 Cri. P.C. it is manifest that the Legislature did not intend the power of making a complaint conferred by Section 476 Cri. P.C. to be exercised by any other court except the Court before whom the offence has been committed, or a Court to which appeals from that court ordinarily lie. Section 24 of the Code of Civil Procedure, therefore, does not apply to a proceeding of a civil court arising out of the power conferred on a civil court by Section 476 Cri. P.C., ....
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.... has granted or refused a complaint and its order is appealed from to the appellate court. Section 24 C P.C. therefore, cannot be invoked to allow a court, other than the court, in the course of proceedings to which, the offence is-alleged to have been committed, or, a court to which appeals ordinarily lie from that court, to entertain the question of preferring a criminal complaint. The reason is that the provisions of Section 476, Code of Criminal Procedure, are self-contained and exhaustive and the power of making a complaint cannot be exercised by any one except the court before which the offence has been committed or a court to which appeals from that court ordinarily lie. 49. In the instant case, Section 476-A, Cri. P.C., was applicable, because the court of the Additional Munsif having been abolished, before he made the complaint under Section 476 Cri. P.C., or rejected the application for the making of such complaint, the District Judge himself, being a superior court, to which the Additional Munsif's court was subordinate, within the meaning of Section 1953 Cri. P.C., could make the complaint, if he thought fit, under Section 476 Cri. P.C., which applied. This Se....