BHARGAVA, J. - (1.) THIS order will dispose of revision applications No. 246 of 1960 and No. 247 of 1960 preferred by Brijmohanlal and Bhagwandas respectively against the order of the learned Sessions Judge Jodhpur directing a complaint to be filed against them for commission of offences under Secs. 209, 467 and 471 of the Indian Penal Code.
(2.) THE facts which have given rise to this order are that applicant Bhagwandass filed a civil suit in the court of Civil Judge, Jodhpur for recovery of Rs. 4000/- against Sohanraj on the basis of a promissory note and a receipt dated 15th September, 1954. Applicant Brijmohanlal was the attesting witness of both these documents. THE defendant denied the execution of the promissory note and the receipt and also taking of any loan from the plaintiff. Both the documents are on a printed form and on the promissory note are affixed four stamps of -/1 /- each bearing Sohanraj's signatures at two places. On the receipt also there is affixed a stamp of-/1/- and bears Sohanraj's signature. Plaintiff's case was that the whole unprinted matter in the promissory note and the receipt was in the hand writing of the defendant himself. Apart from the defendant's signatures on the stamps, these two documents contain his signatures at another place meant for the signatures of the executant in the printed form. In support of his case plaintiff examined himself and the attesting witness Brijmohanlal. On the other hand the defendant in his defence produced Shri K. R. Sunda-ram, Supervisor India Security Press, Nasik who stated that the revenue stamps affixed on the promissory note Ex. 1 and the receipt Ex. 2 were printed on October 26, 1956 and were issued for sale in January 19, 1957. The learned Civil Judge on a consideration of this evidence came to the finding that the two documents could not be executed in the year 1954 as stamps affixed on these two documents could not be available in that year. He was also of opinion that the plaintiff was not a man of status and could not have advanced Rs. 3000/- to the defendant and further observed that the evidence of the plaintiff was unreliable and false. On these findings the learned Civil Judge dismissed the plaintiff's suit with costs. After the judgment was pronounced Sohanraj defendant submitted an application under Secs. 476 and 479 A before the learned Civil Judge for filing a complaint against the plaintiff and his witness Brijmohanlal for having committed forgery. By the time this application came to be decided the learned Civil Judge who had tried the civil suit was succeeded by another Civil Judge who heard this application and dismissed it on the ground that no prosecution could be ordered in view of the provisions of sub-sec. 6 of sec. 479 A of the Code of Criminal Procedure because at the time of the delivery of the judgment no such finding as is required to be recorded under sec. 479 A (1) was given. Sohanraj preferred an appeal against the order of refusal to make a complaint before the learned Sessions Judge, Jodhpur. The learned Sessions Judge, as stated earlier, ordered a complaint to be filed against the plaintiff and his witness Brijmohanlal under secs. 209, 467 and 471 of the Indian Penal Code. Accordingly a complaint purporting to be signed by the learned Sessions Judge on 24. 8. 6o was sent by a forwarding letter dated 22nd September, 1960 to the City Magistrate, Jodhpur. The learned Sessions Judge agreed with the learned Civil Judge that a complaint for commission of offence under sec. 193 of the Indian Penal Code could not be filed against the plaintiff and his witness because of the provisions of sub-sec. 6 of sec. 479 A of the Code, but held that the aforesaid provision would not be a bar to the prosecution of the applicants for offences under sec. 209, 467 and 471 of the Indian Penal Code because in his opinion there was nothing in sec. 479 A which could be said to be applicable to the offences punishable under these sections. The learned Sessions Judge observed that a prima facie case was made out against Bhagwandass (plaintiff) for the commission of offence under secs. 209,467 and 471, and under sec. 467 and 471 against Brijmohanlal and complaint should be drawn up against them for these offences. He, therefore, partly allowed the appeal and rejected Sohanraj's prayer for filing a complaint against the applicants for having committed an offence under sec. 193 of the Indian Penal Code. Being aggrieved by this order the applicants have come to this Court in revision. The main contention of the learned counsel for the applicants is that the order of the learned Sessions Judge is bad in law because he has failed to comply with the terms of Sec. 476 of the Code of Criminal Procedure inasmuch as he has not recorded a finding that it was expedient in the interest of justice that a complaint may be filed against the applicants for the commission of the aforesaid offences. It is contended that the provisions in this regard are mandatory and any non-compliance of this provision, vitiates the order of filing a complaint. In support of his contention learned counsel has referred to Surendranath Jana Vs. Kumeda Charan Misra (1), Keramat Ali Vs. Emperor (2), Dr. B. K. Pal Chaudhry Vs. State of Assam (3), P. K. S. Meyappa Chettiar Vs. Nagammai Achi (4), Sharada Bai and another Vs. K. Lakshminarayana Rao (2), In re Pakkiriswami Pillai (6), Nabaninath Mukherji and another Vs. Emperor (7), Raja Ram Vs. L. Chotey Lal and another (8), Takshir Ahmad Vs. Emperor (9), and (Chaduvula) Munuswami Naidu Vs. Emperor (10 ). The facts of the case in Surendra Nath's case (1) are almost similar to the facts of the present case. In that case a complaint was ordered to be drawn up on appeal by the District Judge under Secs. 465 and 471 I. P. C. Although the learned District Judge gave a finding as in the present case that a clear prima facie case had been made out yet he failed to record a finding that it was expedient in the interest of justice that a complaint should be filed. It was urged before that court that a finding that a prima facie case had been madeout coupled with the fact that a complaint had been ordered is sufficient to enable the court to infer that the opinion of the lower appellate court was that it was expedient in the interest of justice that such an enquiry should be made. This contention was repelled and it was held that it is not possible to say that an express statutory provision for a finding to be recorded is satisfied by inferences which may or may not be drawn from other findings of fact arrived at by the lower appellate court. The order of the District Judge, was, therefore, set aside. In Munuswami Naidu's case (2), It was held that: "though the Courts should be anxious to put down perjury as much as possible, it is not every case of perjury that should form the subject of an inquiry. It is only when the interests of justice require that a complaint should be made, then and then only a complaint should be made. " In In re Pakkiriswami Pillai (6), although the judgment is very small one it was held that: "in absence of a finding that the prosecution is expedient in the interests of justice an order under Sec. 476 cannot stand as the defect is incurable. " In Taskhir Ahmad's case (9) it was held that: "in the case of a criminal charge to which Ss. 476 and 195 apply, the accused is entitled to the benefit of a strict construction of, and compliance with relevant provisions of the statutes, and is entitled to succeed on a technical point. " It was further held that: - "under S. 476, the Court making the original complaint has to be Satisfied first that it 'appears' that an offence referred to in S. 195 (1) (b) or (c) has been committed, and, secondly, that it is expedient in the interest of justice that an enquiry should be made into such offence. When it has come to that conclusion, it is the duty of the Court to record a finding to that effect. And it finally has to make a complaint 'thereof. It is needless to refer to other cases relied on by the learned counsel in view of the pronouncement of the Supreme Court in Dr. B. K. Pal's case (3), to which provisions of Sec. 479a sub-secs. 1 and 5 were applicable. Sub-sec. 1 of Sec. 479a also requires the court intending to make a complaint, to record a finding at the time of the delivery of judgment or final order that any person appearing before it has intentionally given false evidence and that for the eradication of the evil of perjury and in the interests of justice, it is expedient that such witness should be prosecuted for the offence and to give the witness proposed to be proceeded against, an opportunity of being heard as to whether a complaint should be made or not". In the case before their Lordships the terms of Sub-sec. 1 of Sec. 479a were not complied with before the order of prosecution was passed and in those circumstances their Lordships set aside the order because it was made in breach of the express provisions of Sub-secs. 1 and 5 of Sec. 479a. The requirement of recording a finding that it is expedient in the interest of justice that a complaint be filed under Sec. 476 is similar to the one as is mentioned in Sec. 479a and on a parity of reasoning the observations of their Lordships of the Supreme Court fully apply to the facts of the present case. Learned counsel for Sohanraj has tried to distinguish this case and has urged that in fact it is a complaint which really matters because the appeal itself lies against the making of complaint and not against the finding that an offence mentioned in Sec. 195 Sub-sec. 1 clauses (b) and (c) has been committed in relation to proceedings before a civil or revenue court and that it is expedient in the interest of justice to hold an enquiry or file a complaint. He points out that in the complaint which was drawn up by the learned Sessions Judge it has been mentioned in paragraph 8 that it is expedient in the interest of justice that the accused Bhagwandass should be tried for offences under Secs. 209, 467 and 471 while accused Brij Mohanlal should be tried for offences under Secs. 209 and 471 read with Sec. 109 of the Indian Penal Code. It is urged that by mentioning this fact in the complaint the learned Sessions Judge has complied with the provisions of Sec. 476 of the Code. In this connection learned counsel has relied upon Mohammad Illayas Vs. State of Uttar Pradesh, (11) where it was held that: "it is not the recording of the finding about expediency, or the non-recording of a finding about the expediency, that is the subject-matter of appeal: it is the making of, or the refusal to make, a complaint, that is the subject-matter to appeal. and further, "that the period of limitation starts from the date on which the complaint is made; it does not start on the date on which the finding is recorded or from the date on which the complaint reaches the Court of a Magistrate having jurisdiction to try it. " The argument is that when an appeal lies against the making of complaint and the period of limitation also starts from the date the complaint is made it is the complaint which is material and if it contains a finding that it is in the interest of justice that a complaint should be filed no separate finding is necessary. So far as the case relied upon by the learned counsel is concerned, it does not lay down the proposition which the learned counsel wants to urge. It only lay down that an appeal lies only when a complaint is made and the period of limitation starts from the date of making the complaint. It goes no further. The language of Sec. 476 of the Code indicates that before a complaint is made the court has to record a finding that an offence referred to in Sec. 195 Sub-sec. 1 clauses (b) and (c) has been committed in proceedings in that court, that an enquiry should be made into such offence. Recording of the above finding is a pre-requisite for making a complaint. The findings come first and the complaint follows. In the present case as stated earlier the order was passed by learned Sessions Judge on 9th June, 1960 and the complaint was prepared by him on 24th August, 1960 and was forwarded to the court of the City Magistrate on 22nd September, 1960. Therefore, the statement in the complaint that it is in the interest of justice that a complaint should be filed will not avail the opposite party when the learned Sessions Judge failed to record it in his order dated 9th June, 1960. Learned counsel has also urged that a failure to record a finding is a mere irregularity and is not fatal to the order. In this connection he has referred to Kailashpati Mishra and others Vs. Nand Lal Ahir (12), and Vidhayadhar Vs. Sita Ram and another (13), In Kailashpati's case (12) the learned Judge who ordered the filing of the complaint had said "this is a fit case" and these words were construed as meaning that it is expedient in the interest of justice that an enquiry should be made into the offence. In the present case there is no such expression of opinion by the learned Sessions Judge from which an inference may be made that he was satisfied that it was in the interest of justice that a complaint may be drawn up against the applicants. In Vidyadhar's case (13) the learned Judicial Commissioner refused to interfere in exercise of his powers under S. 439 Criminal Procedure Code because neither the District Judge nor the subordinate Judge acted as a criminal court and further did not like to interfere in his powers of superintendence under Article 227 of the Constitution of India. The observations that the omission to record a finding that it was expedient in the interest of justice to launch a prosecution did not 'ipso facto' render the order invalid were obiter dicta in that case. I am conscious of the fact that in view of the evidence of Shri K. R. Sundaram Supervisor India Security Press, Nasik that the stamps affixed on Exs. 1 and 2 were printed in October 1956 and were issued for sale in January, 1957. No exception can be taken to the finding of the learned Civil Judge that they could not have been affixed on these two documents on September 15, 1954. But the other circumstances of the case have also to be kept in view before a prosecution is ordered. As mentioned earlier the whole unprinted matter on Exs. 1 and 2 was alleged by the plaintiff to be in the handwriting of the defendant. It was also stated that there were signatures of the defendant on the stamps as well as at another place. Neither the learned Judge who tried the civil suit nor the learned Sessions Judge in the course of their judge ments have said anything about the genuineness of these signatures. There is no finding that the document is not in the handwriting of the defendant and does not bear his signatures. The courts were influenced mostly by the fact that the stamps on these documents could not be available in the year 1954. It is also noteworthy that the only person who has been cited as a witness in the complaint is Shri K. R. Sundaram and he would only prove that the stamps were printed and published in 1956 and 1957. Possibility of the applicant's proving that the signatures on the stamps were of the defendant cannot be altogether excluded. In such circumstances it would be difficult for the criminal courts to hold that offences under Secs. 209 476 and 471 of the Indian Penal Code had been made out. It is true that the man who has committed forgery is not entitled to any consideration but as observed by Asutosh Mooker-jee, J. in Janu Nandan Singh Vs. Emperor (14), that: "no sanction should be granted, or prosecution directed, unless there is a reasonable probability of conviction, though the authority granting a sanction under Sec 195, or taking action under Sec. 476, should not decide the question of guilt or innocence. Great care and caution are required before the criminal law is set in motion, and there must be a reasonable foundation for the charge in respect of which a prosecution is sanctioned or directed. " Taking all the circumstances of the case into consideration, I am of opinion that the order of the learned Sessions Judge is bad because he has failed to comply with the terms of Sec. 476 of the Code and has not recorded a finding that it is in the interest of justice that a complaint may be filed against the applicants and further I do not consider it in the interest of justice that a complaint may be filed against the applicants. These revisions are therefore, accepted, the order of the learned Sessions Judge, Jodhpur directing the drawing up of a complaint is set aside and it is ordered that the complaint filed in the court of City Magistrate should be withdrawn. . ;