Decided on November 16,1950

MATHURA DASS Respondents


- (1.) THE circumstances giving rise to the present revision petn. by Gita Ram Kalsy, an Advocate of Ludhiana, are as follows. A case was pending in the Ct. of a Mag. at Ludhiana tinder Ss. 364 and 302, Penal Code, regarding the disappearance and death of one Faqir Chand. Among the documents on the file of this case was a pronote purporting to be executed by Gita Ram, petnr, and his father Hansa Ram in favour of Mathra Das, the complainant in the case, and on 16. 3-1950, Mathra Das put in an appln. before the trial Mag, in which he stated that the pronote in question which had been produced by him before the police and placed on the file of the case had been intact at the time, but on an examination of the file it had been discovered that the name of Gita Ram in the body of the pronote and his signature at the foot had been scored out, this fact being brought to the notice of the Ct. which recorded an order about it on the file of the case. In the appln. Mathra Das stated that this was a serious matter which required investigation and that if an immediate enquiry were held, it could be proved that the tampering was recent. He therefore prayed either that the learned Mag. should himself hold an investigation into the matter or make a report to the Dist. Mag. with the same object. The learned Mag. recorded an order of the appln. in which after briefly setting out the facts he said that the matter needed investigation and that he would be obliged if the City Inspector of Police would look into it and report by an early date. On this the petnr. moved the learned Dist. Mag. in revision for the cancellation of this order on the ground that the learned Mag, could not order an investigation by the police of a non-cognizable offence. The learned Dist. Mag. , however, dismissed the petn. and the present revision petn, has been filed in this Ct.
(2.) THE learned trial Mag. has not mentioned under what particular provisions of the Cr. P. C. he was asking the City Inspector to look into the matter and report, but since, if any offence is found to have been committed, it is likely to be under one of the sections of the Penal Code mentioned in Section 195 (1) (c), Cr. P. C. , it may be presumed that the action of the learned Mag. was taken under the provisions of Section 476, Cr. P. C. the relevant portion of which read: (1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such. preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class haying jurisdiction, and may take sufficient security for the appearance of the accused before such Mag, or if the alleged offence is non bailable may, if it thinks necessary so to do, send the accused in custody to such Mag. and may bind over any person to appear and give evidence before such Magistrate. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200. It is to be borne in mind in the present case 'that it is still to be decided as the result of a preliminary investigation firstly whether any offence at all has been committed and secondly, if so, who is the probable culprit, and the question "for decision is whether the preliminary enquiry referred to in Section 476 (1) can legally be deemed to include a reference to the Police to find out whether an offence has been committed and who committed it. It is strenuously contended by the learned counsel who have appeared on behalf of Mathra Das and the State that there is nothing in the section which debars a Ct. from invoking the assistance of the Police in the preliminary enquiry under this sub-section, while on behalf of the petnr. it is contended that a reference to the Police at this stage is debarred by the absence of any provisions for it in the section, and that the preliminary enquiry -could only be held by the learned Mag. himself, and further that the matter could only be referred to the Police for investigation after the complaint had been sent to another Mag. and he began the proceedings mentioned in Sub-section (2 ). "without any reference to authority I should say that prima facie the contention of the learned counsel for the complainant and the State is correct and that there is nothing in Sub- Section (1) which debars a Mag. to whose notice a case of tampering with a document during the pendency of a case, has been brought from asking the Police to assist him in the preliminary enquiry before drafting a complaint and forwarding it to another Ct. , and the learned counsel for the petnr. admitted that he had no authority to the contrary dealing exactly with a case of this kind. On the other hand, reliance is placed on the decision in Waman Dinkar v. Emperor, 43 Bom. 300: (A. I. R. (6) 1919 Bom. 103: 20 Cr. L. J. 433 ). The facts in that ease were that a landlord had brought a suit against some tenants for recovery of rent which was decided by a Subordinate Revenue Judge called a Mamlatdar. Some appeals were preferred to the Ct. of the Assistant Collector who after deciding the appeals in which he found reason for doubting the genuineness of a Kabulayat called on the landlord and also the Mamlatdar for their reports. He was not satisfied with those reports and therefore had the matter investigated by the C. I. D. whose assistance he obtained through the Dist. Mag. As a result of the report of the Police he passed an order under Section 476, Cri. P. C. for an enquiry to be held by the nearest first class Mag. who in turn committed the Mamlatdar and landlord to the Sessions Ct. where they were convicted. Among the grounds taken in the appeal which was heard in the H. C. by Heaton and Hayward JJ. was that the whole of the preliminary enquiry ought to have been made by the Assistant 'collector himself and that he was functus officio after he had referred the matter to the Dist. Mag, The decision of the Ct. on this point was that some enquiry at least having been made by the Assistant Collector he was not deprived of jurisdiction to act under the section by the mere fact that he took the precaution of making a more careful and deliberate enquiry with the assistance of the C. I. D. , or by the fact that he applied to the Dist. Mag. for assistance. The decision in Shabbir Hasan v. Emperor A. I. R. (15) 1928 ALL. 21: (28 Cr. L. J. 986) has also been relied on. Unfortunately, the facts are not fully set out in this judgment, but it can be gathered from it that a Civil Subordinate Judge had found reason to suppose that; one of the offences mentioned in Section 195 (1) (c ). Cri. P. C. had been committed in connection with a case in his Ct. and instead of holding an enquiry and proceeding himself under Section 476, Cri. P. C. , he sent the case to the Dist, J. for his taking action in the matter, and it was held by Dalai J. that the Subordinate Judge was negligent in his duty in not taking action under Section 476, Cr. I. C, and passing on the trouble of an enquiry to the Dist. J. and that under Section 476 an enquiry has to be made by the Civil Ct. and if the Civil Ct, so desires an enquiry may be ordered by the Police, but in that case when the Police papers arrive the Civil Ct. has to determine whether it is necessary to take action against; particular persons under Section 476. It is thus clear that the Judges of two Cts. have taken the view that there is nothing in Section 476 which debars a Ct. from obtaining the assistance of the Police in a preliminary enquiry under Sub-section (1) and there is no case directly in point to the contrary.
(3.) A number of cases were cited on behalf of the petnr. in which it has boon held that once a Mag. has taken cognizance, of a complaint under Section 190, Cri, P. C. he cannot refer the matter to the Police for investigation under Section 156, These cases, however appear to me to be irrelevant to the point under consideration. In the present case the matter has not been referred to the Police with the object of the Police instituting a prosecution if an offence is found to have been committed by a certain person or persons, but merely with the object of finding out whether an offence has been committed, and by whom, with a view to the Mag's taking further proceedings under Section 476. In fact oven if the Police did discover that an offence had been committed and established the identity of the culprit, they could not take any further action, which could only be taken by the learned Mag. in whose Ct. the case was pending. To my mind, it would be absurd if the learned Mag. in this case were simply to record a finding that prima facie a document in the custody of the Ct. in connection with a case had been tampered with and to forward a complaint to some other Ct. and leave that Ct. to make the investigation and discover the identity of the culprit, and in fact the section clearly only contemplates the forwarding of a complaint against one or more definite accused, who are either to he bound down to appear in the other Ct. or else sent in custody and obviously the Police are the best persons to assist the learned Mag in the preliminary enquiry in discovering when and by whom the offence, if any, was committed. In the circumstances I see no reason to interfere and therefore, dismiss the petn.;

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