RAMAUTAR MISTRI Vs. RAJINDRA SINGH
LAWS(PAT)-1960-11-4
HIGH COURT OF PATNA
Decided on November 23,1960

RAMAUTAR MISTRI Appellant
VERSUS
RAJINDRA SINGH Respondents


Referred Judgements :-

IDU JOLAHA V. THE CROWN [REFERRED TO]
MR. HUSSAIN PLACED RELIANCE ON GERIMAL V. SHEWARAM [REFERRED TO]
BAJU JHA V. EMPEROR [REFERRED TO]
PROVAT RANJAN BARAT VS. UMA SANKAR CHATTERJEE [REFERRED TO]
SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS VS. IJJATULLA PAIKAR [REFERRED TO]
(MT ) RADHARANI DASSAYA VS. PURNA CHANDRA SARKAR [REFERRED TO]
EMPEROR VS. RAJA KUSHAL PAL SINGH [REFERRED TO]
RAMESHAR LAL VS. RAJDHARI LAL [REFERRED TO]


JUDGEMENT

Raj Kishore Prasad, J. - (1.)THIS application, by the defendant, arises out of his application made under Section 476 of The Code of Criminal Procedure, for filing a complaint against the plaintiff-opposite party, far his prosecution under Sections 471 and 193 of the Indian Penal Code.
(2.)THE history of the litigation, leading up to the present application, may briefly be stated as below: On 3-4-56 a title suit was instituted, by the plaintiff-opposite party, against the defendant petitioner, in the court of the 1st Munsif at Hajipur. In that suit, the plaintiff on 27-5-57 filed a patta, purported to have been executed on 5-6-1906, by Ajodhya Mistry, the father of the petitioner, in favour of the grandfather of the opposite party, along with a petition, stating therein that he had found out this document as well as other documents from old records, and, therefore, he was filing the disputed patta as well as other documents in 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. THE revenue stamp affixed on the Khista patta appears to have been cut before posting. THE face of the King is not visible, only the Crown is visible. It cannot be said whether the revenue stamp affixed on the said Khista patta bears the face of King George the V or King George. the VI. But it is certain that the revenue stamp does not bear the figure (face) of King Edward the Seventh. THE suit was, thereafter, decided by the Additional Munsif, who dismissed it on 23-12-57.
It may be noted here that the disputed patta of 1906, although filed by the plaintiff, for being used in evidence by him, was not actually used by him, and, therefore, it was not exhibited in the suit.

On 9-1-58 the petitioner filed a petition, under Section 476 Code of Criminal Procedure, for filing a complaint against the opposite party not before the First Court of the Munsif, where the disputed patta was filed, and, before whom the suit was instituted and then pending, but, before the Additional Munsif, to whom the suit was transferred subsequently and who had decided the suit. On this application a miscellaneous case was started, and, 'thereafter, on 15-2-1958 as the Additional Court of the Munsif, before whom the application under Section 476, Code of Criminal Procedure, was made, was abolished, it was transferred to the 2nd Court of the Munsif of the same place, according to the order of the District Judge. The learned Munsif, 2nd Court, held the enquiry and on 8-1-59 allowed the application of the petitioner and held that a prima facia case has been made out against the opposite party, and, therefore, a complaint should be made before the Subdivisional Magistrate, Hajipur, against the opposite party for his prosecution under Sections 471 and 193 of the Indian Penal Code. He, accordingly directed a complaint to be filed.

An appeal against the above order was then taken, by the plaintiff opposite party, to the court of the District Judge, Muzaffarpur, who, by his order of the 17th February, 1960, set aside the order of the learned Munsif and refused to file a complaint, as he held that no prima facie case had been made out, and that there was no reasonable chance of conviction of the opposite party, and, further that it would not be expedient in the interest of justice to allow the complaint to be filed against, the opposite party as directed by the learned 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.

The defendant, thereupon, being aggrieved by the above order, came up in revision to this Court and obtained the Rule under consideration.

(3.)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 subsequently used as evidence in the suit.
It may be mentioned that Mr. Hussain confined himself only to the offence under Section 471, Penal Code, and, therefore, no argument was put forward regarding the offence under Section 193 of the Penal Code, which was also alleged by the petitioner to have been committed by the opposite party, and, as such I shall also deal only with Section 471, Penal Code.

In support of his above contention, Mr. Hussain relied on Idu Jolaha v. The Crown 3 Pat LJ 388 : AIR 1918 Pat 274, Baju Jha v. Emperor. 9 Pat LT 800 : AIR 1929 Pat 60 and, Mobarak Ali v. Emperor, 17 Cal : WN 94.



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