Kotval, J.:— That leaves for our consideration the principal contention raised in this case. The contention is that if s. 195 applies in the case of accused No. 5 for the reason that he had in his case, viz., Criminal Case No. 1278 of 1958, got the alleged false document produced, then the section would equally apply to all the other persons, viz., accused Nos. 1 to 4 who are charged with the same or similar offences in relation to that document. It is contended that the word “offence” used in s. 195(1)(c) is, so to say, used in an abstract or general sense without reference to the particular individuals who committed that offence and that, therefore, if the offence requires a complaint under the provisions of s. 195(1)(c), even in the case of one individual, it is the same offence and, therefore, will require a complaint even as against the other accused.

2. The sheet-anchor of this contention is the case reported in In re Narayan Dhonddev1. At p. 385, Mr. Justice Batchelor, delivering the judgment on behalf of the Division Bench, expressed the principle thus:

“…We do not find that there is any serious difficulty in coming to this view which accords, we think, with the provisions of section 195, (1), (c) of the Criminal Procedure Code, for, as we read that section the word ‘offence’ occurring as the third word in the clause is designedly used in a somewhat abstract manner. It is the ‘offence’ in itself, not any particular offender's offence which the section aims at and that is in accordance with s. 40, Indian Penal Code, where offence is defined as the thing made punishable by the Code. In other words, the clause deals with the case where there is a substantive offence committed by a party to a suit. If that condition is realised, then, the clause enacts that no Court can take cognizance of ‘such offence’. In this case ‘such offence’ would mean the offence generally of forgery, and it seems to us that if the criminal Court were to try Lakshmibai's abettors under s. 467, it would in fact be taking cognizance of the offence as those words are used in the clause, and that is the action which is specially forbidden. This reading of the section appears to us to involve no undue straining of the language and to give a more reasonable interpretation than is arrived at by the rival construction; for, upon that construction while the prosecution of the main offender could not be instituted without a sanction, any minor aiders or abettors or accessories of his could be prosecuted without a sanction. That, we think, is hardly a result likely to have been contemplated, and we observe that sub-s. (5) of s. 195 appears to lend countenance to the view which we have adopted.” Now, in the first place, we notice that Narayan's case was not a case where there was any charge of abetment. In that case, a will had been propounded as a defence to a suit. In appeal, arising out of that suit, it was held that the will was a forgery, and consequent upon that finding, the plaintiff had obtained sanction to prosecute the defendant Laxmibai, who had propounded the will and the attesting witnesses of the will as also its scribe. All these persons were charged with substantive offences and not with abetment. At one stage, the High Court, considering the application for grant of sanction, had revoked the sanction granted by the Courts below and thereafter the plaintiff had moved the Court for launching of the complaint under s. 467, Indian Penal Code. Thus, it will appear that the charge in that case against Laxmibai as also the attesting witnesses and the scribe was that they had forged the will. There was no charge against any of the accused persons of abetment. Nevertheless in the passage we have reproduced above reference was made to Laxmibai's abettors. We are unable to see, with all respect, how upon the facts, that observation could have arisen in that case.

3. Reference was also made in Narayan's case to the definition of offence under s. 40 of the Indian Penal Code. But we notice that no reference was made to the definition of offence contained in s. 4(o) of the Criminal Procedure Code which would really govern the case. “Offence” in s. 4(o), Criminal Procedure Code, is deemed as “any act or omission made punishable by any law for the time being in force…” In the face of this definition, we are unable to see how it can be held that the “offence” in cl. (c) of sub-s. (1) of s. 195 is used in an abstract sense and implies the offence itself and not any particular offender's offence. Further, the very terms of sub-s. (1)(c) of s. 195 show that the offence must be alleged to have been committed by any party to any proceeding in any Court. Therefore, by its very terms, the offence is in relation to a party to any proceeding in any Court and cannot be considered apart from the party who commits it. Another case, which takes the same view as Narayan's case and which was relied upon by Mr. Shah, is the one reported in Perianna Muthirian v. Vengu Ayyar . [1929] A.I.R Mad. 21.. The decision is merely founded upon the case in In re Narayan Dhonddev. Suffice it to say, that in a later decision to which the same Judge was a party, the earlier view followed in Perianna's case was negatived and Narayan's case was not followed. That decision is reported in Ponnusami v. Emperor . [1929] A.I.R Mad. 115..

4. But apart from this, there is a volume of authority to support the contrary view. We need not refer to all the decisions that were referred to at the Bar, but we may state that Narayan's case was expressly dissented from in Jiwa Ram v. Gangoli . [1949] All. 716.. In that case, at p. 718 reference was also made to the Madras decision in Periamma Muthirian v. Vengu Ayyar, and the learned Judge observed that the observations in the Madras case were obiter. He also noted that the same Judge had taken a different view in the subsequent Madras case in Ponnusami v. Emperor, and expressly dissented from the view taken in Narayan's case. The contrary view is also supported by the following authorities:—(1) Ponnusami v. Emperor; (2) Giridharee Lal v. Emperor . [1917] A.I.R Cal. 121.; (3) Fakir Singh v. Emperor . [1928] A.I.R Lah 787.; (4) Tulasi Ammal v. Danalakshmi Ammal . [1934] A.I.R Mad. 316.. Incidentally, we may also observe that the case in Fakir Singh v. Emperor was a case of an abettor of an offence and it was held that there was nothing in s. 195, Criminal Procedure Code, to prevent the trial of an abettor of an offence committed by a party to a proceeding in Court, without a complaint by the Court under s. 476, Criminal Procedure Code.

5. If the authority in In re Narayan Dhonddev is to be followed, then obviously the complaint in the present case cannot proceed against all the accused. In re Narayan Dhonddev is a Division Bench judgment and normally it would be binding upon us, but for the reasons which we have set forth, we find it extremely difficult to follow the principle laid down in it. We think it proper that the case should be considered by a Full Bench. Accordingly, we have decided to refer the following question to a Full Bench:—

“Whether the decision in In re, Narayan Dhonddev lays down the correct law?”

6. The question was considered by a full bench composed of Chainani C.J and Mudholkar and K.T Desai JJ.

7. M.A Bane, Assistant Government Pleader, for the State 5

8. Hemendra K. Shah, for accused Nos. 4 and 5.

9. Chainani, C.J:— The question referred to the full bench relates to the interpretation of s. 195(1)(c), Criminal Procedure Code. Sub-section (1) of s. 195 runs as follows:

“(1) No Court shall take cognizance—

(a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;

(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or

(c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, 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.”

10. The marginal notes to these three cls. (a), (b) and (c) are “prosecution for contempt of lawful authority of public servants,” “prosecution for certain offences against public justice,” and “prosecution for certain offences relating to documents given in evidence,” respectively. sub-section (4) of this section states that the provisions of sub-s. (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.

11. Two views have been taken with regard to cl. (c) in sub-s. (1) of s. 195. In In re Narayan Dhonddev, it was held that the word “offence” occurring as the third word in this clause is designedly used in a somewhat abstract manner and it is the offence in itself, not any particular offender's offence, which the section aims at. It was observed that this view was in accordance, with s. 40, Indian Penal Code, where “offence” is defined as a thing made punishable by the Code and that the clause deals with a case where there is a substantive offence committed by a party to a proceeding in any Court. At p. 385 it was observed:

“…This reading of the section appears to us to involve no undue straining of the language and to give a more reasonable interpretation than is arrived’ at by the rival construction; for, upon that construction while the prosecution, of the main offender could not be instituted without a sanction, any minor aiders or abettors or accessories of his could be prosecuted without a sanction. That, we think, is hardly a result likely to have been contemplated….”

12. A different view has been taken by some other High Courts in certain eases, to which I will refer later. The question referred to the Full Bench is whether the decision in Narayan Dhonddev's case lays down the correct law.

13. Sub-section (1) of s. 195 imposes a bar on the Court's taking cognizance of the offences referred to in this sub-section. So far as cl. (c) is concerned, this, bar will apply if three conditions are satisfied. These-are: (1) that the offence is an offence described in s. 463 or punishable under s. 471, 475 or 476, Indian Penal Code, (2) that the offence is alleged to have been committed by a party to any proceeding in any Court, and (3) that the offence is committed in respect of a document produced or given in evidence in such proceeding. If these three conditions are satisfied, then the Court cannot take cognizance of the offence, except on the complaint in writing of the Court, in a proceeding before which the document was produced or given in evidence.

14. Sub-section (4) makes the provisions of sub-s. (1) applicable to conspiracies to commit offences named in sub-s. (1). For an offence of conspiracy there must be at least two persons. If, therefore, the offence, which is committed in relation to a proceeding in any Court, is that of conspiracy to commit an offence of the kind referred to in cl. (c), say, that of forgery, and if only one of the conspirators was a party to the proceeding before the Court,.then an anomalous situation will arise, if it is held that a complaint of the Court is required only for prosecuting the conspirator who was a party to the proceeding in the Court and not for the other co-conspirator, who may have played only a minor part in the offence. The offence committed by both the conspirators is the same and there is no reason why the Legislature should have tried to draw a distinction between the two, requiring the complaint of the Court in one case and allowing a private party to prosecute in the other case. The better view, in our opinion, therefore, appears to be that where an offence of the kind referred to in cl. (c) has been jointly committed by several persons, only one of whom was a party to a proceeding, in a Court, then the complaint of the Court will also be necessary in order to prosecute the other persons, who had jointly committed the offence, even though they were not parties to the proceeding before it.

15. In this connection the wording of cl. (c) may be compared with the language used by the Legislature in ss. 197 and 197AA. Sub-section (1) of s. 197 states that when any person who is a Judge or when any Magistrate or when any public servant, who is not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the appropriate Government. The marginal note to the section is “prosecution of Judges and public servants.” Section 197AA requires previous sanction of the Court for prosecuting a Commissioner appointed by it. Its wording is similar to that of s. 197 and the marginal note is “Prosecution of Commissioner appointed by civil Court.” These two sections, therefore, prohibit the prosecution of the persons mentioned therein, except with the previous sanction of the appropriate authority. The language used in cl. (c) of sub-s. (1) of s. 195 is materially different. It does not say that when a party to a proceeding is accused of an offence of the kind mentioned therein, the Court shall not take cognizance except on a complaint in writing of the other Court. This clause, therefore, appears to he directed against prosecutions for offences committed in relation to proceedings before a Court, irrespective of the persons who had committed them.

16. This view finds support in the marginal notes to these sections. The marginal note to cl. (c) is, “Prosecution for certain offences relating to documents given in evidence.” The emphasis is on offences and not on the persons who had committed them. The wording of this marginal note is different from that of the marginal notes to ss. 197 and 197AA. It is true that a marginal note cannot be looked at for interpreting the provisions of a section, but where an ambiguity arises it can be used to clear it. See Emperor v. Fulabhai Joshi and State v. Heman Alreja. The wording of the marginal note to cl. (c) in sub-s. (1) to s. 195 also suggests that it is the offence and not any particular offender's offence, in respect of which the bar has been imposed.

17. The word “offence” is defined in cl. (c) of sub-s. (1) of s. 4 as meaning any act or omission made punishable by any law for the time being in force. It has been urged that where a number of persons join in committing an offence, the act of each person is a distinct act and that the word “offence” in cl. (c) means the particular act done by the party to the proceeding before the Court. Every act does not, however, constitute an offence. Some offences, such as that of conspiracy or dacoity, cannot be committed by one person alone. They require the acts of more than one person in order to constitute the offence. In each case, therefore, it will have to be determined whether the offence, with which a person (who was not a party to the proceeding in the Court) is charged and in respect of which he claims the protection of cl. (c), is the same offence as was committed, by a party to the proceeding before the Court. If the act committed by him alone constitutes a distinct offence, cl. (c) will not apply and no complaint of the Court will be required for prosecuting him for that offence. If, on the other hand, the act committed by him and the act committed by the party to the proceeding together constitute an offence of the kind referred to in cl. (c), then a complaint of the Court for his prosecution will be necessary.

18. Before a Court can make a complaint in respect of any offence referred to in s. 195(7), it has to hold an enquiry as provided in s. 476. Sub-section (7) of this section states:

“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 interests 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…”

19. It will be noticed that this section refers to offences committed in or in relation to a proceeding in a Court. It is not confined to offences committed by parties to the proceeding.

20. I will now briefly refer to the authorities, which have been cited at the Bar.

21. Most of the cases do not give reasons for the view taken in them. There are three cases of this High Court, to one of which In re Narayan Dhonddev I have already referred.

22. In In re Devji valad Bhavani, certain property was attached in execution of a decree. Thereupon accused No. 1 applied to have the attachment raised, on the ground that he had purchased the property from the judgment-debtor under a sale-deed executed long before the date of the attachment. In the summary inquiry held by the Court, accused No. 1 produced the sale-deed and accused No. 2 was called as his witness in support of his claim. Proceedings were then held under s. 478 of the Code of Criminal Procedure as it then stood. Both the accused were then tried on charges of perjury and forgery. The question then arose whether proceedings under s. 478 could have been held against accused No. 2, who had given evidence as a witness. It was held that the power given to the Court under Chap. XXXV of the Criminal Procedure Code to take action regarding any offence referred to in s. 195, was not restricted, in regard to offences relating to documents, to such offences only as were committed by a party to the proceeding in which the document was given in evidence. It was observed that sanction was not requisite for the prosecution of a witness for an offence relating to the documents and that his prosecution was permissible without sanction. No reasons are given in support of this observation. It is also not clear from the judgment whether the offence, with which the witness accused No. 2 was charged, was the same as was alleged to have been committed by the party to the proceeding, accused No. 1. This decision cannot, therefore, be regarded as an authority for the proposition that cl. (c) in sub-s. (1) of s. 195 is inapplicable, when the person, who is sought to be prosecuted, was not a party to the proceeding in the Court in which the document was produced or tendered in evidence.

23. In Emperor v. Balgaunda, a complaint was filed by a Court not only against the party to the proceeding before it, but also against persons who had been examined as witnesses. It was held that s. 476 was wider than sub-s. (1) of s. 195 and that under s. 476 the Court could file a complaint not only against the party to the proceeding, but also against the witnesses and refer the whole case to a Magistrate for inquiry. In his judgment Murphy J. made an observation that sanction under s. 195 could only have been given against the party to the proceeding. The decision in this case turned upon the interpretation of s. 476, which refers to “an offence which appears to have been committed in or in relation to a proceeding in a Court.” The exact scope of s. 195(1)(c) was not considered in this case.

24. In Debi Lal v. Dhajadari Gashai the question arose whether sanction was necessary for prosecution of a witness. This question was answered in the negative. The judgment gives no reasons for this view, but only states that there was a strong body of authority in the Madras, Bombay and Allahabad High Courts that sanction is not necessary against any person who is not a party to the suit and that witnesses are not to be considered parties to the suit. In support of this view the Bombay case in In re Devji valad Bhavani was cited, to which I have already referred.

25. In The Grown v. Balmokand, it was held that s. 195 read with s. 476 of the Code neither expressly nor impliedly restrains a Magistrate or the presiding officer of a civil Court from taking action against persons who are not parties to the proceedings before him. The question, which arose in this case, was whether the Court can file a complaint not only against the party to the proceedings before it, but also against other persons. This was a different question from the question, which we have to consider, whether a complaint of a Court under s. 195(1)(c) is necessary for prosecuting a person, who is not a party to the proceeding before it.

26. In Fakir Singh v. The Crown,8 it was held that there is nothing to prevent the trial of an abettor of an offence referred to in s. 195(1)(c) of the Criminal Procedure Code committed by a party to a proceeding in Court, without a complaint by the Court concerned under s. 476 of the Criminal Procedure Code. With respect, we agree with the view taken in this case, because the offence of abetment is a distinct and different offence from the offence abetted.

27. In Anna Ayyar v. Emperor,9 the question arose whether a criminal prosecution filed by the defendant in a civil suit against the plaintiff and his witnesses, should be stayed pending the decision of the civil suit. It was held that as sanction under s. 195(1)(c) was necessary in the case of the accused who were parties to the civil suit, the complaint against them must be dismissed. It was observed that as regards the other accused s. 195(1)(c) did not render sanction necessary, as they were not parties to the proceeding in which the document had been produced. No reasons are given in support of this observation.

28. In Perianna Muthirian v. Vengu Ayyar . [1929] A.I.R Mad. 21. Curgenven J. considered the scope of s. 195(1)(c). In his judgment the learned Judge stated that the answer to the question depended primarily upon the construction to be placed upon the term “offence” as it is used in cl. (c)—whether it denotes the transaction of forgery as a whole, so that the Court is debarred from taking cognizance of that transaction, including the shares taken in it by non-parties, as well as parties, or whether it refers only to the share taken by a party, so that the power to proceed against non-parties is not affected. He proceeded to observe that the grounds for adopting the former construction were to be found in In re Narayan Dhonddev, and stated that he was impressed forcibly with the merits of that view of the law. The learned Judge went on to observe (p. 25):

“…It seems contrary to public policy that some only of the participants in an alleged act of fabrication—and those perhaps who play a subordinate part—are exposed to prosecution, while the party in whose interests the act is said to have been done is protected.”

29. In view, however, of the opposite view taken in some other cases, the learned Judge refrained from expressing a definite opinion on this question.

30. The question again arose for consideration before the same learned Judge Curgenven J. in Ponnusami v. Emperor . [1929] A.I.R Mad. 115.. In his judgment the learned Judge referred to In re Narayan Dhonddev, and observed that he felt much in sympathy with the view that this is how the law should stand. In view, however, of what the learned Judge regarded as a large body of judicial opinion, which favoured a contrary interpretation, he felt that he could not say that the lower Court had erred in law in deciding that a criminal case, which had been filed against persons who were not parties to proceedings before the Court without a complaint from that Court, should continue. The learned Judge referred to Anna Ayyar v. Emperor and stated that decision was binding upon him. As I have already pointed out, Anna Ayyar's case only contains an observation that s. 195(1)(c) does not render sanction necessary for persons who are not parties to the proceeding, in which the document had been produced, but it does not contain any discussion of the law on this point.

31. In Jiwa Ram v. Gangoli . [1949] All. 715., a single Judge of the Allahabad High Court held that when several persons combine together to make a forged document and when one of such persons is a party to a legal proceeding in which the forged document is filed, the other persons responsible for making the document can be prosecuted on a private complaint. In his judgment the learned Judge referred to Ponnusami v. Emperor, and observed that 19 years had elapsed since the decision of that case and that no case had been pointed out to him in which the Bombay view expressed in In re Narayan Dhonddev, had been followed. He, therefore, followed the decision in Ponnusami v. Emperor. At p. 719 the learned Judge referred to the definition of “offence” contained in s. 4(1)(o), Criminal Procedure Code, and observed:

“…The act which has been made punishable by section 465, Indian Penal Code, has been described in section 463, Indian Penal Code, to be the making of any false document or part of a document with a particular intent. It seems obvious to me that when more than one person combine to commit forgery, the act of each individual forgerer is distinct from the act of another. According to the Bombay decision, it is the entire transaction that constitutes the offence. This interpretation is opposed to the definition of the word ‘offence’, already quoted, because, according to section 4(o), Criminal Procedure Code, it is the act, and not the transaction, which constitutes the offence.”

32. With respect, we may point out that every act does not constitute an offence. It is only that act, which is made punishable by any law for the time being in force, which is an offence according to the definition given in s. 4(1)(o): As to whether the act of each individual constitutes a different offence is a question, which must be decided on the facts of each case.

33. The last case cited is Ram Prasad v. Maheshanand . [1948] A.I.R Patna 5.. In that case it was observed that s. 195(1)(c) provides a bar to a prosecution only where such an offence is alleged to have been committed by a party to a proceeding in any Court, but that there is no bar if the offence is committed by somebody who is not a party to such proceeding. No reasons are given in support of this observation.

34. It will be seen that in most of the above cases there is no discussion of the provisions of s. 195(1)(C). With respect, it seems to us that the correct view is that s. 195(1)(c) will apply, even when the person accused of the offence in respect of a document produced in a Court was not a party to the proceeding, in which the document was produced, provided such offence was committed by him jointly with a person who was a party to that proceeding.

35. The reply to the question referred to us will be that if an offence of the kind referred to in cl. (c) of sub-s. (1) of s. 195 has been committed by a party to a proceeding in any Court, in respect of a document produced or given in evidence in such proceeding, the complaint of that Court will be necessary for prosecuting even a person, who was not a party to such proceeding, provided the offence with which he is charged is the same as is alleged to have been committed by the person who was a party to the proceeding.

36. The question whether the offence, with which the person, who was not a party to the proceeding is charged, is the same as had been committed by a party to the proceeding must be decided in each case on the facts of that case.