EMPEROR Vs. BALGAUNDA RAMGAUNDA PATIL

JUDGEMENT

(1.) In this appeal accused No. 1 was convicted under Section 471 of the Indian Penal Code for using a forged document, viz., a will and accused Nos. 2 to 4 were convicted under Section 467 of the same Code which is the section which imposes a penalty for forging a will, the offence of forgery being described in Section 463 of the Code, The facts shortly are that the maker of the will, Malgaunda A, Patil, died on January 7, 1916, and five years later, viz., on January 21, 1921, an application was made by accused No. 1 to the District Judge of Satara for letters of administration with the will annexed. Accused No. 1 was the principal beneficiary under the alleged will. In these proceedings the District Judge came to the conclusion that the will was forged. He came to that conclusion after examining all the accused as witnesses and he dismissed the application. On November 6, 1922, he made an order under Section 476 of the Criminal Procedure Code sending the case to the nearest Magistrate for inquiry and to be dealt with. In so doing he expressed the opinion that accused No. 1 was guilty of an offence under Section 471 of the Indian Penal Code and accused Nos. 2 to 4 were guilty of offences under Section 467, Indian Penal Code. The subsequent history of the matter is dealt with in the judgment of the learned Sessions Judge. A great deal of delay was occasioned, largely by appeal to the High Court in respect of the District Judge's dismissal of the application for letters of administration and subsequent failure to notify the result of the appeal to the District Court, and ultimately the accused were put up for trial and were convicted on July 23, 1930.

(2.) Mr. Koyajee who appears for the accused, takes a point of law in favour of accused Nos 2 to 4, His point is that they were never properly committed for trial under Section 476 of the Criminal Procedure Code since they were not parties to the proceedings for obtaining letters of administration. Aa the proceedings took place before 1923, the provisions of the Code apply as they were before the amendments made in 1923. Secs.195 and 476 were amended in various particulars in 1928, I am disposed to think that the only amendment really material for the purposes of this case is that under Section 476 of the old Code a complaint had to be made to the nearest Magistrate, whereas under the amended Code it has to be made to the Magistrate having jurisdiction.

(3.) There has been considerable difference of opinion amongst the High Courts of India as to the meaning of Secs.195 and 476 of the old Code and it is suggested that this Court has taken the view that Section 476 is an independent section and not controlled by Section 195 I am not satisfied that that view has formed the ground of any actual decision by this Court, and I myself think, as a matter of construction, that both under the old Code and the new Code, Section 476 is a corollary of Section 195. It seems to me that the reasoning of the Full Bench of the Madras High Court in Govinda Iyer V/s. Rex (1919) I. L. R. 42 Mad. 540, F. B. is unanswerable upon that point. But I do not think that it follows from that that it was not competent for the Court under Section 476 of the old Code to make a complaint against persons who were witnesses, and not parties, in the proceedings which came before the Court and to which Section 195 applied. Section 195 is a disabling section, and Section 476 is an enabling section, and I see no inherent reason why the powers conferred by Section 476 should be strictly limited by reference to the disabilities imposed by Section 195. For the purposes of this appeal the only Sub-section of Section 195 which is relevant is (1) (c), and reading that Sub-section with Section 476 it seems to me to come to this, that if once it is ascertained in judicial proceedings that there is an offence described in Section 463 of the Indian Penal Code or punishable under Section 471, 475, or 476 of that Code and such offence appears to have been committed by a party to the proceedings, then under Section 476 the Court can inquire into the matter, and if it comes to the conclusion that other persons also, for example witnesses, are guilty of the offence, I think that it can refer the whole case to a Magistrate for an inquiry and committal. It seems to me that the words of Section 476 of the old Code are wide enough to justify that conclusion. That conclusion is also directly justified by the decision of this Court in In re Devji valad Bhavani (1893) I. L. R. 18 Bom. 581, in which it was held that a case could be dealt with under Section 476 in respect of witnesses as well as of parties, Mr. Koyajee says that in that case the witnesses, as well as the party, were charged under Section 471, Indian Penal Code, which is one of the sections mentioned in Section 195 whereas in this case the witnesses were charged under Section 467, which is not a section mentioned in Section 195. But the answer to that is that Section 487 merely provides for the punishment of the offence of forging a will and the offence of forgery is described generally in Section 463 which is one of the sections mentioned in Section 195 (1) (c), so that, if that point be material, the witnesses here were charged with an offence referred to in Section 195. That being so, I think the technical objection fails. I think that the District Judge before whom the proceedings for letters of administration came was entitled to refer the case of accused Nos. 2 to 4 as well as of accused No. 1 to the nearest Magistrate and that course he adopted. Speaking for myself, I think that I would have arrived at the same conclusion if I were dealing with a case under the amended Code. I am disposed to think that the view taken by the Rangoon High Court in the case of C. T. Guruswamy V/s. D. K. S. Ebrahim (1924) I. L. R. 2 Ran. 374 is somewhat too narrow. It is obviously very inconvenient if a Court finding that an offence has been committed by a party to certain proceedings before it, and also finding that other persons are guilty of the same offence, has to adopt one form of procedure for obtaining a committal in the case of the party and another form in the case of the other persons. That inconvenience must, I think, have been present to the minds of those who framed the alterations in the Code, and I should not hold that the Code has produced that result unless the language compelled me to do so which I do not think it does. The technical objection, therefore, fails.