Emperor v. Balgaunda Ramgaunda Patil And Others (Original Accused Nos. 1 To 4)

Beaumont, C.J:—

[Why do you say that In re Devji valad Bhavani was decided under the impression that sections 195 and 476 were independent of each other?]

Because if they were considered dependent on each other, the qualifications stated in clause (c) of section 195 would necessarily qualify section 476. See also the judgments in Govinda Iyer v. Rex and C.T Guruswamy v. D.K.S Ebrahim.(5) And, besides, accused No. 1 was to be tried under section 471, and accused Nos. 2 to 4 under an altogether different section, viz., 467. So that it cannot be said that the accused Nos. 2 to 4 were dealt with under section 476 of the Criminal Procedure Code in respect of the same offence as accused No. 1. Thus In re Devji valad Bhavani is not really an authority for this case.

Beaumont, C.J:—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 he 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.

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. As the proceedings took place before 1923, the provisions of the Code apply as they were before the amendments made in 1923. Sections 195 and 476 were amended in various particulars in 1923. 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.

There has been considerable difference of opinion amongst the High Courts of India as to the meaning of sections 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 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. Rex is unanswerable upon that point. But I do not think that it follows from 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 fond 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, 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 467 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. D.K.S Ebrahim 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.

On the merits I really have nothing to add to the very full judgment of the Sessions Judge. The evidence turns partly on expert evidence of handwriting which Mr. Koyajee says that it is unsafe to act upon. I agree, but here was ample further evidence to justify the allegation that this will had been forged, and it seems to me that there is no ground whatever for differing from the finding of the Sessions Judge. The appeal must, therefore, be dismissed.

Appeal dismissed with costs.

Murphy, J.:—These are appeals by four persons. Appellant No. 1 was convicted and sentenced under section 471 of the Indian Penal Code and the remaining appellants under section 467, Indian Penal Code.

The circumstances are unusual, owing to the delay which occurred before bringing these persons to trial. The prosecution originated in an application for letters of administration made to the District Judge of Satara in 1921 by the appellant Balgaunda. It ended in the dismissal of the application and an order sending the applicant Balgaunda and the remaining three appellants to the nearest Magistrate, First Class, under section 476 of the Criminal Procedure Code, for inquiry into offences punishable under section 471, Indian Penal Code, in the case of No. 1 and under section 467, Indian Penal Code, in the case of the three others. This order was made on November 6, 1922, before sections 195 and 476 of the Criminal Procedure Code were amended with effect from September 1, 1923. We have consequently to consider the legality of the trial in the light of section 476 as it then stood. The delay is in part due to the different appeals which were made and during which these proceedings had to be stayed, and partly to mislayings of documents and records in the different offices concerned.

On the merits little can be said in appellants' favour. The will accused No. 1 propounded purported to have been, made by one Malgaunda on December 30, 1915. He died on January 7, 1916, probably of plague. He was a boy of nineteen owning considerable property, and the last male member of his house, and left him surviving two widows, both then minors. Accused No. 1 was a distant kinsman living in the same village. It was improbable in the circumstances that Malgaunda would make appellant No. 1 his heir and disinherit his two widows of their estate, coupling this with a direction that they were not to adopt to him during appellant No. 1's lifetime. Appellant No. 1 has admitted that he was told of the making of the will in his favour on the day after Malgaunda's death. But he never produced or mentioned it till five years later.

The method of obtaining it is also suspicious. Appellant No. 1 filed a suit against a person called Jinappa, since dead, to produce it and Jinappa did so, the suit being filed in a civil Court of the neighbouring State of Sangli, which issued a search warrant, on which it was produced. This transaction has every mark of what is called in ordinary language a “put up job” and I believe it was one.

Between Malgaunda's death and this highly suspicious suit there were many occasions on which, if the facts were as the appellant maintains, we would have expected a man in his position to mention the will. These occasions are detailed in the learned Sessions Judge's judgment, and I need not repeat the story here. It is enough to say that appellant No. 1 acted throughout as would a man who did not know of any will in his favour. The explanation is that he could not get the document and was told by a pleader, whose name is not given, that alleging the existence of the will without producing it would have been useless in a Court of law. As the writer and the attesting witnesses were fellow villagers, I cannot believe that appellant No. 1 felt he could do nothing in the matter on this ground. The greater probability is that he would have maintained his claim on the evidence available. His long silence and manner of production of the will, even apart from the expert evidence as to handwriting, make it certain that no will was ever made by the deceased, and that the present one, which could have been written at any time by the scribe and attested as it is, was forged soon before its production in the Sangli Court.

This finding of fact disposes of the case of appellant No. 1, who was a party to the original proceedings and whose case falls within sections 195(c) and 476 of the Criminal Procedure Code whether before or after the amendment of 1923.

The cases of the other appellants are also clear on the facts, for, if the will was subsequently forged, as I believe it was, they were parties to the forgery when they attested it, but their cases present a legal difficulty. Before the amendment of sections 195 and 476 of the Criminal Procedure Code, there were two courses open to a Court in the circumstances of offences of this nature. It could grant sanction under section 195 and so remove the bar to a private prosecution, or it could proceed under section 476. In the former case sanction could only have been given against a party to the proceedings. Was there a similar obstacle to proceeding against witnesses under section 476? The views of the several High Courts on this point were conflicting. But this Court has held that witnesses could be proceeded against under section 476, Criminal Procedure Code, and section 467, Indian Penal Code, on the view that section 476 was wider than, and independent of, section 195(c). Since the 1923 amendment the granting of sanction to a private prosecutor is abolished and sections 195 and 476 are closer connected so that the only proceeding now open is one under section 476. That section is now practically one regulating the procedure to be followed in all cases falling under section 195. But to my mind this was clearly not so before the amendment of these sections. Sections 195 and 476 provided alternative procedures and the cases falling under section 476 were defined by a reference to section 195 generally. The other view is that section 195 governed section 476 in the sense that prosecutions under section 476 could only be instituted in the cases in which sanction could be given under section 195, but the language of section 476, as it was, contained no such limitation and it was “into any offence referred to in section 195, sub-section (1), clause (b) or clause (c).” The offence of forgery is one of those referred to, the reference being to its definition in section 463 and by implication including the varieties of the offence specified in the succeeding sections including section 467 after which the reference is to offences punishable under different sections, being offences which are further developments of forgery such as using a forged document and so on. In other words, in my view, by the words “offences referred to” the section meant what it said, and not offences covered by the section and committed in the qualifying circumstances mentioned in section 195(c), that is, by a party to the proceeding. This is the view of the section laid down by this Court in the case of In re Devji valad Bhavani, this being a ruling of a Division Bench which is binding on us. The same view was taken by Sankaran-Nair, J. in Aiyakannu Pillai v. Emperor. It is not necessary now to decide whether or not this view is still correct since the amendment of the two sections for the order in this case was made before the amendment and the procedure then in force governs all the subsequent stages of the proceedings. For the same reason, the fact that the papers were sent for inquiry to the nearest Magistrate, instead of to the Magistrate having jurisdiction, cannot affect the present convictions. I agree that the appeal should be dismissed and the sentences confirmed.

Appeal dismissed.

B.G.R