Sudhir Kumar Bhattacherjee v. State — 1960 DIGILAW 52 (CAL)

JUDGMENT 1. THE petitioners in the two Revision cases (No. 1599 of 1959 and No. 1 of 1960) have been committed to take their trial to the Court of Session at Alipore. The petitioner Sudhir Kumar Bhattacharjee has been charged on two counts under section 465/471 and petitioner Monmatha Nath Haldar under section 467 of the Indian Penal Code. They have moved this Court under section 215 of the Code of Criminal Procedure for an order quashing the commitments. 2. THE matter arises in this way: One Bibhuti Bhusan Majumdar instituted proceedings before the Thika Controller at Alipore for eviction of the petitioner Sudhir Bhattacharjee. The proceedings had a leisurely career and eventually terminated in an order of eviction made on the 30th of November, 1954. In December, 1955 an application was made by Bibhuti asking for a complaint to be made against these petitioners for having fabricated false evidence, namely, certain rent receipts and used them as genuine. On this application a complaint was directed to be made, but before any complaint was actually made, an appeal was taken which was, however, dismissed. Thereafter on the 16th of December, 1958 a formal complaint was made by the Thika Controller and addressed to the Police Magistrate at Alipore. It was alleged that a prima facie case under sections 193, 196, 465 of the Indian Penal Code had been made out against the petitioners. On receipt of the complaint cognizance was taken and proceedings were commenced before the Magistrate who held a preliminary enquiry under Chapter XVIII of the Code. At one stage of the argument before us it was doubted whether section 195/476 of the Code of Criminal Procedure at all applied to these proceedings. Quite obviously the Thika Controller made the complaint in pursuance of the provision contained in section 195 read with section 476 of the Code. Section 195 (1) (c) imposes a bar only if the offences mentioned in that clause have been committed by a party to a proceeding in any court. The question, therefore, arose whether the Thika Controller was a court within the meaning of the section. That question is not altogether res Integra. In the case of Rai Harendranath Choudhuri v. Sm. Daulatmani Chaudhurani (1) (62 C. W. N. 143) it was held that the District Judge exercising powers under the Calcutta Thika Tenancy Act, 1949, was a Court. The question, therefore, arose whether the Thika Controller was a court within the meaning of the section. That question is not altogether res Integra. In the case of Rai Harendranath Choudhuri v. Sm. Daulatmani Chaudhurani (1) (62 C. W. N. 143) it was held that the District Judge exercising powers under the Calcutta Thika Tenancy Act, 1949, was a Court. It was observed "in view of the fact that the District Judge is required to determine the dispute finally upon a presentation of their respective cases by the parties, that he is required to decide question upon evidence, that he is empowered to summon and enforce attendance of witnesses and compel production of documents in the name manner as is provided for by the Civil Procedure Code and in view of the fact that the order made by him may be executed in the manner provided in the Civil Procedure Code for the execution of decree and lastly that the procedure prescribed by the Civil Procedure Cede for the trial of suits is to apply as nearly as may be, to the determination of appeals presented before him, it is difficult to resist the conclusion that the District Judge is a Court." 3. IT is true that the question there decided was a question which affected the District Judge in dealing with a. matter arising out of the Calcutta Thika Tenancy Act; but we think the reasons given in the decision equally hold good in the case of a Controller for the purpose of deciding whether he acts as a Court within the meaning of section 195 of the Code of Criminal Procedure. There is, besides, intrinsic evidence in the Thika Tenancy Act itself of the Legislature's intention that the Thika Controller should be regarded as a Court. Section 5 of the Act gives power to the Thika Controller to make orders for eviction of tenants : section 19 speaks of receipt granted by the Controller for rent deposited. The Controller is required to give receipt for rent deposited under "the seal of the Court". The Controller has power under section 32 to require any person by written order to produce for his inspection such accounts, rent receipts, hooks or other documents relevant to the inquiry. The Controller is required to give receipt for rent deposited under "the seal of the Court". The Controller has power under section 32 to require any person by written order to produce for his inspection such accounts, rent receipts, hooks or other documents relevant to the inquiry. Sub-section (2) of section 32 provides that the Controller has power to summon and enforce the attendance of witnesses and to compel the production of documents by the same means and so far as may be, in the same manner, as is provided in the case of a Court by the Code of Civil Procedure. Rule 11 of the Calcutta Thika Tenancy Rules provides that an application under section 25 of the Act shall state the ground or grounds on which the enhancement is claimed and shall be signed and verified in the manner provided in sub-rules (2) and (3) of rule 15 of Order VI of the First Schedule to the Code of Civil Procedure. Rule 12 lays down the procedure for inquiry and says that in making enquiries under the Act, the Controller shall follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure for the trial of suits. There is a proviso attached to this Rule which is equally significant. It says that it shall not be necessary to record the evidence of witnesses any further than recording a memorandum of the substance only of such evidence as in unappealable cases. The procedure for review before the Controller is required to approximate to the procedure provided by Order 17 of the Code of Civil Procedure. Rule 14 provides that the Controller shall follow the procedure laid down in the Code of Civil Procedure in the matter of summoning and enforcing the attendance of witnesses. 4. THESE are some of the provisions of the Thika Tenancy Act and the Rules which clearly indicate that the Thika Controller is a court and not a mere tribunal. That being the position, it must be held that section 195 (1) (b) and (c) read with section 476 of the Code of Criminal Procedure is attracted and a complaint, if required to be made, must be made in accordance with the procedure therein prescribed. During the course of the enquiry, Bibhuti Majumder gave evidence. That being the position, it must be held that section 195 (1) (b) and (c) read with section 476 of the Code of Criminal Procedure is attracted and a complaint, if required to be made, must be made in accordance with the procedure therein prescribed. During the course of the enquiry, Bibhuti Majumder gave evidence. He stated that certain rent receipts marked Exhibits E to E/5 and Exhibits F and F/1 had been produced before the Thika Controller in the course of the proceeding before him. Those documents were produced before the Magistrate holding the preliminary enquiry. Bibhuti Majumder referred to his complaint before the Controller asking for prosecution of the petitioners on appropriate charges. The Bench clerk attached to the Thika Controller stated that the petitioners deposed in the course of the proceedings and produced their depositions before the Controller. The complaint made by the Thika Controller was also proved in the case. That is all the evidence that was produced before the committing Magistrate who made an order on the 27th of November, 1959 by which he committed the petitioners to take their trial before the Court of Session. 5. THE petitioner Monmatha Nath Haider was charged with having forged Exhibits E to E (5) which were receipts produced before the Controller with intent to support the claim of title of the other petitioner Sudhir Bhattacharjee. Petitioner Sudhir Bhattacherjee was charged on two counts with having used as genuine the rent receipts Exhibits F and F (l) and Exhibits E to E (5) which he knew or reasonably believed to be forged. 6. IT is contended on behalf of the petitioners that the order of commitment is not sustainable in the case of either of the two petitioners. So far as petitioner Monmatha Nath Halder is concerned, the contention is that he was not a party to the proceeding and, that being so, he could not possibly have been proceeded against in view of the provision contained in Sec. 195 (1) (c) of the Code of Criminal Procedure read with Sec. 476 of that Code. In the case of the other petitioner Sudhir Bhattacherjee, it has been urged that there is no legal evidence upon which the order of commitment can be sustained. These contentions require examination. In the case of the other petitioner Sudhir Bhattacherjee, it has been urged that there is no legal evidence upon which the order of commitment can be sustained. These contentions require examination. Section 195 (1) (c) is in these words: "no Court shall take cognizance of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code (I.P.C.) when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate." Section 476 (1) provides: "when any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in section 195, sub-section (1). clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate." Section 195 occurs in Part VI of the Code which is headed "proceedings in Prosecutions". There is a subheading "conditions requisite for initiation of Proceedings," appended to section 195 and the succeeding sections occurring in that Chapter. It is reasonably clear that one of the conditions requisite for initiation of proceedings in respect of offences referred to in clause (c), sub-section (1) of section 195, is that there must be a complaint by a court. The opening words of section 195 are imperative. They impose a bar to the taking of cognizance of offences described in that section. The opening words of section 195 are imperative. They impose a bar to the taking of cognizance of offences described in that section. Unless that bar is lifted, no cognizance can be taken of the offences mentioned therein. Confining our attention to clause (c) of sub-section (1) of section 195, it seems plain that a court is forbidden to take cognizance of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the Indian Penal Code when such offences are alleged to have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such court, or of some other court to which such court is subordinate. Thus it would require as complaint of the court concerned if a party to the proceeding has to be prosecuted in respect of the offences mentioned in clause (c). Petitioner Monmatha Nath Haider was not a party to the proceeding. He was merely a witness who gave evidence in the case before the Thika Controller and in the course of that evidence produced the receipts in question. It cannot, therefore, be said that a complaint can properly be made against him in accordance with the provisions contained in section 195 (1) (c) read with section 476 of the Code. Section 476 occurs in Chapter XXXV which is heeded "proceedings in case of certain offences affecting the administration of justice." In our opinion, section 476 is more or less procedural and indicates how a complaint is to be made in accordance with section 195 (1) (b) or (c). On behalf of the State, the learned Deputy Legal Remembrance has argued that section 476 merely refers to offences described in sub-section (1), clauses (b) and (c) of section 195; it has no reference whatever to the persons to be proceeded against. The contention seems to be that, even if a person is not a party to a proceeding, he can still be prosecuted for offences described in section 463 or punished under section 471, 475 or 476 of the Indian Penal Code, provided a complaint is made by the court concerned against such person. We are unable to accept this construction of the section. We are unable to accept this construction of the section. Properly read the provisions contained in section 476 cannot be divorced from the provisions contained in clauses (b) and (c) of sub-section (1) of section 195. To give effect to the contention will be to truncate clause (c) of sub-section (1) of section 195. In our view, the offences referred to in clause (c) of sub-section (1) have to be taken along with the persons mentioned therein and we cannot possibly agree to view the clause piecemeal in order to hold that although a person proceeded against is not a party to the proceeding, he could still be prosecuted upon a complaint made by the court concerned for any of the offences described in clause (c) in accordance with the procedure prescribed in section 476 of the Code. It is significant that while clause (b) of sub-section (1) of section 195 makes no mention of the persons involved, clause (c) contains an express mention of the persons who have committed the offences referred to in that clause. We feel fortified in the view we take of the matter by the observations of Rankin, C. J. in the case of Provat Ranjan Barat and ors. v. Uma Sankar Chatterjee and ors. (2) 35 C.W.N. 98. It was held in that case that a witness not being a party, no complaint under section 476 can. be made against him in respect of offences mentioned in section 195 (1) (c). It was also pointed out that section 476 is co-extensive with subsection (1), clauses (b) and (c) of section 195 in respect of offences mentioned in the two clauses respectively. It was held that a person who was not a party would not get the protection of clause (c) of sub-section (1) of section 195 and consequently would not be within the purview of section 476. It was observed that section 476 nowhere says that no court shall take cognizance of certain offences. That provision is to be found in section 195 and section 476 would only apply to cases where, by reason of other provisions a Magistrate requires a complaint a court in order that he might take cognizance of the charge. It was observed that section 476 nowhere says that no court shall take cognizance of certain offences. That provision is to be found in section 195 and section 476 would only apply to cases where, by reason of other provisions a Magistrate requires a complaint a court in order that he might take cognizance of the charge. It is, therefore, clear that clause (c)of sub-section (1) of section 195 must be taken as a whole and we cannot agree to the view that the words 'party to any proceeding' occurring in the clause can be ignored. As we have indicated, section 476 must be read, more or less, as a procedural provision, but the substantive provision is to be found in section 195 itself. 7. THE learned Deputy Legal Remembrance then argued that the new provision introduced by the Amending Act of 1955 and embodied in section 479a enables the court concerned to proceed against a witness if he forgiven false evidence at any stage of a judicial proceeding or intentionally fabricated false evidence. It is true that this new provision has been introduced; but that provision cannot possibly apply to this case since the section requires that, in order that such prosecution may be ordered, the court concerned has to record at the time of delivering the judgment or final order disposing of the proceeding, a finding to the effect that the witness concerned has either intentionally given false evidence or fabricated false evidence. In this case, the original order of the Thika Controller directing eviction was made in November 1954; section 479a did not come into force until January 1, 1956. That being the position, no question can possibly arise of the petitioner Monmatha Nath Halder being prosecuted under section 479a for having intentionally given false evidence or fabricated false evidence. The condition precedent to taking action under section 479a is that there must be a finding recorded by the court concerned at the time of the judgment or final order disposing of the main proceeding that the witness has intentionally given false evidence or fabricated false evidence. This condition could not obviously have been fulfilled inasmuch as the original order of the Thika Controller was made long before section 479a was enacted. 8. This condition could not obviously have been fulfilled inasmuch as the original order of the Thika Controller was made long before section 479a was enacted. 8. IT was then argued that the opening words of the new section 479a indicate that a person who is not a party can be proceeded against by the court concerned for any of the offences mentioned in clause (c) of sub-section (1) of section 195. It is difficult to accept this contention. What section 479a seeks to provide for is that where a person, who has appeared before a court and given evidence, is proved to have perjured himself or fabricated false evidence, the court concerned is authorised to proceed against him straightaway without holding any further enquiry as to his guilt. Obviously this power is given to the court to deal with persons who quite clearly appear to have perjured or deliberately fabricated false evidence. The obvious purpose is to eradicate the evils of perjury and fabrication of false evidence. It may be that a party is also a witness in a given proceeding. In such a case, it would indeed be a question whether it would be necessary to proceed against such person in accordance with the procedure prescribed in section 476 and the subsequent sections of the Code. We are inclined to think that a party who figures as a witness be proceeded against under section 479a straightaway and this view seems to be supported by the provision contained in sub-section (6) of section 479a which says that no proceeding shall be taken under sections 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under section 479a. This question, however, does not directly arise. Petitioner Monmatha Haldar was not a party to the proceeding. He was undoubtedly a witness. Since he was not a party to the proceeding, he could not be proceeded against in accordance with the procedure prescribed in section 195 (1) (c)476 of the Code. The complaint which was made by the Thika Controller was obviously one made under section 195 (1) (c); that attracted the provisions contained in section 476. But since he was not a party to the proceeding no complaint could be made against him in accordance with section 195 (1) (c). The complaint which was made by the Thika Controller was obviously one made under section 195 (1) (c); that attracted the provisions contained in section 476. But since he was not a party to the proceeding no complaint could be made against him in accordance with section 195 (1) (c). The cognizance in the present case was taken on a complaint which was made by following the procedure prescribed in section 476. That being so, we cannot but hold that cognizance was not properly taken inasmuch as the complaint itself could not have been made by the Court. In the result, his commitment to the court of session must be quashed. The case of Sudhir Bhattacharjee stands on a different footing. He was indeed a party to the proceeding and the charge against him is that he used the rent receipts which were forged knowing or having reason to believe them to be forged. The essential requirement in his case was that there must be evidence to indicate that the receipts were forged receipts and that he knew or had reason to believe that they were forged at the time he used them. It is strange indeed that there is no evidence whatever on the record to indicate that the receipts in question (Exhibits E and F series) were forged. The only evidence that has been adduced in the case is the evidence of Bibhuti Majumdar who merely produced those receipts, referred to the order of eviction made by the Thika Controller and deposed to the effect that there was an appeal against that order which failed. He nowhere stated in his evidence before the Magistrate that those receipts were forged or fabricated documents. The only other relevant evidence came from the Bench Clerk attached to the Thika Controller. He merely produced the depositions of the petitioners Sudhir Bhattacherjee and Monmatha Haldar. Those depositions were marked as exhibits before the committing Magistrate. But they were useless since there was no charge under section 193; the charges were under sections 467 and 471. These are the only materials upon which the commitment of Sudhir Bhattacharjee has been made. It is passing strange that it struck no one connected with the prosecution that there should have been before the committing court substantive evidence to indicate that the receipts were forged. These are the only materials upon which the commitment of Sudhir Bhattacharjee has been made. It is passing strange that it struck no one connected with the prosecution that there should have been before the committing court substantive evidence to indicate that the receipts were forged. It seems to us that everybody proceeded on the footing that the findings reached by the Thika Controller and affirmed on appeal were proof enough that the documents were not genuine. The findings of the Controller or those of the appeal court would not be evidence in the present proceedings to establish even a prima facie case that the receipts were forged receipts. Surely, no court can proceed on the basis that since another Tribunal had pronounced on the documents in question those pronouncements could do duty for evidence. The opinion of that Tribunal would not be evidence in the case. It was at least necessary to aver that the receipts were forged receipts and to produce some evidence in support of that averment. There is no such evidence in the case. Petitioner Sudhir Bhattacherjee cannot possibly be committed to take his trial for having used as genuine the receipts on the finding reached by the Thika Controller and affirmed by the appellate court that they were forged. The committal proceedings were independent proceedings and it was essential for the prosecution to establish a prime facie case that the receipts were forged receipts. In the absence of any such evidence, we find it impossible to uphold the order of commitment. We, accordingly, quash the order committing petitioner Sudhir Bhattacharjee to the court of session. In the result, the Rules are made absolute. The order committing the petitioners to the court of session are accordingly quashed.