Decided on February 11,1965

BABU Appellant
STATE Respondents


G. Kumar, J. - (1.)BABU applicant had been convicted by the magistrate of an offence Under Sections 454/380 IPC and was sentenced to undergo 9 months' K.I. In his defence the applicant had produced certified copies of two applications ostensibly bearing the dates of 29.1.1963 and 27. 9.1961. On the former application the D. M. of Mathura had passed an order on 8. 8. 1963 and on the latter on 14.8.1963. The certified copies had been filed by the applicant before the trying magistrate on the plea that their originals had been weeded out. Later on it was discovered that the original applications did exist at the relevant time; hence the magistrate concerned summoned the original applications and it was found that the application ostensibly bearing the date of 29.1. 1963 bore stamps dated 29.6.1963. On that application the D.M. had passed an order dated 8. 8. 1963. The second application originally bore the date 27.9.1961 but it was changed into 29.7.1963. On this application the D.M. had passed an order on 14. 8. 1963. Thus there was intrinsic evidence in the said applications and the orders passed thereon that they had been back -dated in order to provide a false defence to the applicant. Thus Babu applicant had prima facie committed forgery in the said applications with a view to manufacturing false defence for himself. However, the trying magistrate did not take any action against him Under Section 476 -A or 476 simpliciter but convicted the applicant as stated above. When the applicant went up in appeal before the Sessions Judge, it was the latter who directed issue of a notice to the accused to show cause why a complaint be not instituted against him for forging the two applications in question. It is this part of the order of the Sessions Judge which is under consideration be before me now.
(2.)THERE can be no manner of doubt that the trying magistrate could have taken action against the applicant under the first part of Section 476 -A read with Section 476 Code of Criminal Procedure in respect of the forgery alleged to have been committed by the applicant in the proceedings pending before him. If the original court had not cared to take necessary proceedings Under Section 476/476 -A Code of Criminal Procedure the appellate court (which is the court of the Temporary Sessions Judge, Mathura in the instant case) could take similar proceedings in accordance with the procedure laid down Under Section 476 Code of Criminal Procedure. The perusal of Section 476 Code of Criminal Procedure reveals that if the court is satisfied about the ostensible guilt of the person concerned of any of the offences referred to therein, it may record a finding to that effect and make a complaint thereof in writing and forward the same to a magistrate of the first class having jurisdiction.
But if that court considers it necessary in the interest of justice it may make a preliminary enquiry before lodging the complaint against the offender. The first step for making a preliminary enquiry would obviously be to issue a notice to the accused to show cause why a complaint be not instituted against him for an offence of forgery etc. This is exactly what the Sessions Judge has done in the instant case. No illegality or irregularity is involved in the order of the Sessions Judge dated 17.2. 1S64 which is being challenged before me now.

The revision has no force and it is accordingly dismissed. The record shall be sent down to the Sessions Judge concerned with all expedition.


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