HARIRAM ONKAR Vs. MT. RADHA W/O. JAIRAM KUMHAR

JUDGEMENT

(1.) THIS revision relates to a complaint made under Section 467, Penal Code, for the forgery of a document which purports to be the will pi one Onkar. It is said to bear his thumb mark and purports to have been executed on 14th July 1941. The complaint was made to the Sub-divisional Magistrate at Harda on 9th August 1941 and, it is important to note that the complaint was a private one and not one made by a Court under Section 476, Criminal P.C. After this, on 12th September 1941, an application for probate was made in the Court of the District Judge, Hoshangabad. Probate was refused on the ground that the testator was not of sound disposing mind. On the question of execution the Court held (1) that the will was executed by Onkar and (2) that it was "not prepared to hold that the will was forged." These questions are still under consideration by the High Court. The appeal has not yet been heard.

(2.) I agree that these findings are not res judicata in a criminal case. The rule does not apply to criminal proceedings though the underlying principle is applied in another way. An accused person can plead autrefois convict or autrefois acquit under Section 408, Cr. P.C. But no question of that arises here. The probate judgment is irrelevant. The proceedings in the trial Court were stayed during the pendency of the probate proceedings but as soon as they were concluded, the trying Magistrate decided to proceed with the trial. The accused made an application to the Sessions Judge asking for a reference to the High Court with a view to quashing the trial. This the Sessions Judge (the same Judge who decided the probated refused, Accordingly the accused has come up in revision. I was asked by counsel for the accused to keep this revision pending until the probate appeal in this Court has been decided. Counsel for the complainant objected strongly unless the accused was placed on terms, the terms being that he have the probate matter expedited. I did not think it proper to impose terms in a Criminal case, so proceeded to hear the application.

(3.) ALL the High Courts are now agreed that once a forged document is brought into Court, then private complaints subsequent to this are barred by Section 195 even in respect of anterior forgeries - anterior that is to the litigation. The cases are collected at pages 660 and 661 of B.B. Mitra's Criminal Procedure Code, Edn. 10, and I need do no more than cite his book. But the question whether this applies to previously instituted complaints has not been as frequently considered. In re Parameswaran Nambudri A.I.R. 1916 Mad. 72 Ayling J. said that it is necessary that the "proceeding in any Court" referred to in the clause should be actually instituted before the criminal Court is asked to take cognizance of the offence and added: If it is not, there is nothing in Section 195 to prevent the Court from taking cognizance of the case. And once the Court has lawfully taken cognizance of the case its jurisdiction is not affected by the subsequent coming into existence of a circumstance which would have barred its jurisdiction, if it had existed at the time of its institution.