G. SRINIVASA AYYANGAR Vs. RAMASAMI AYYANGAR AND ANR.
HIGH COURT OF MADRAS
G. Srinivasa Ayyangar
Ramasami Ayyangar And Anr.
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Byers, J. -
(1.) ACCUSED 1 is an amin who is alleged to have intentionally made a false return on an execution process entrusted to him at the instigation of a party to the litigation with intent to cause injury to some other persons, and the question which now arises for decision is whether this was an offence punishable Under Section 167 or Section 193, Penal Code. If the former section is applicable, then no complaint is required Under Section 195(1)(b), Criminal P.C.; but if the latter section is applicable, then the complaint at the instance of a party is not maintainable. The process was issued in the course of proceedings in execution of a decree of a District Munsif's Court and the execution proceedings' were adjourned pending the return of the process. It was the amin's duty to remove an offending obstruction on the property in suit and to put the decree -holder in possession before returning the process to the Court, but he did neither of these things, and he returned the process with a false report that he had, in fact, removed the obstruction and placed the party in possession.
(2.) ACCORDING to the rules contained in -chap. 2, Part 1 (vol. 2), Civil Rules of Practice, read with Order 21, Rule 25, Civil P.C., the amin is required to endorse on the process the manner of its service or execution and, when returning it to the Court, he has to make an affidavit of his return for which purpose Nazirs, Deputy Nazirs and Assistant Nazirs are empowered to administer the oath. It is, therefore, clear that the process server or amin is, under Order 21, Rule 25, Civil P.C., and the relevant rules of the Civil Rules of Practice, bound by an express provision of law to state the truth and to make an affidavit as to the mode of his return. This brings him within the scope of Section 191, Penal Code, and as the execution warrant or process arose in the course of a judicial proceeding and forms part of the record of those execution proceedings, the offence committed by the amin, comes Under Section 193, Penal Code. The offence also appears to come Under Section 167, Penal Code, which does not require the complaint of the Court Under Section 195(1)(b), Criminal P.C., but there is ample authority in support of the proposition that a complainant cannot avoid the provisions of Section 195 of the Code, by making his complaint for a lesser offence for which a complaint by the Court is not necessary. The distinction between Section 167 and Section 193, Penal Code, seems to be that, whereas the former section relates to the incorrect preparation of a public record as, such, the latter section applies when the record forms part of the records of a judicial proceeding, as it does in the present case. In the result, I find that the view taken by the learned Magistrate that the complaint is not maintainable is correct and the revision petition is dismissed.;
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