In this case it appears that proceedings under secs. 465, 467 and 471 of the Indian Penal Code have been taken in the Court of the Senior Deputy Magistrate of Howrah, against the Petitioners. These proceedings are in respect of a deed of sale executed by one Niroda Moyi Dasi in favour of Petitioner No. 1, Nolini Kanta. Laha, though ostensibly in favour of Petitioner No. 3. Fakir Chandra Chakraverty. The document bears date 11th September, 1915, and was registered on the 26th October, 1915 before the Sub-Registrar of Amta.
The complainant in the proceedings is one Anukul Chandra Laha, who holds a conveyance of the same plot of land purporting to have been executed by Niroda Moyi on the 10th October, 1915. This document was presented for registration to the Sub-Registrar of Howrah on the 25th of October and was ultimately registered under the order of the District Registrar, on the 2nd December, 1915. The Complainant's case is that the document in favour of Nolini Kanta and Fakir Chandra has been fraudulently antedated, and his complaint was made before the District Magistrate of Howrah as against the 1st, 3rd, 4th and 5th Petitioners on the 12th July, 1916, and as against the 2nd Petitioner on the 2nd August, 1916. Both complaints were transferred by the District Magistrate to the Deputy Magistrate for disposal.
The complaints, it may be observed, were made after preliminary proceedings which continued before the Sub-Registrar of Amta, the District Registrar, and an enquiring officer, from the 28th of October 1915, to the 29th of June 1916. The offences charged are the alleged fabrication of the document on or about the 26th of October 1915, and the fraudulent use thereof before the Sub-Registrar of Amta on that date.
Meanwhile on the 29th of January 1916, proceedings under sec. 145 of the Criminal Procedure Code had been taken in the Court of the Sub-divisional Magistrate of Ulubaria against Complainant Anukul as the first party and against the present Petitioner Nolini and Fakir, as the second party. These proceedings were disposed of by an Honorary Magistrate to whom they had been transferred on the 29th of March 1916.
It may be next observed that on the 7th July, 1916, i.e, four days before the first complaint in the Criminal Court and about a month before the 2nd, the Petitioner Nolini brought a suit on the document in the Court of the 2nd Munsif at Amta. In this suit the Complainant Anukul is the Defendant and the essential question in that suit will be whether the document which is the subject of the present criminal proceedings is or is not a genuine document.
On behalf of the Petitioner it is then contended before us, firstly, that in the proceedings before the Honorary Magistrate under sec. 154, Cr. P.C, to which the Petitioners Nolini and Fakir were parties—the document now in question was produced or given in evidence,” and that therefore under the provisions of sec. 195(1), (c) the absence of the said Magistrate's sanction is a bar to the criminal proceedings in respect of the antecedent forgery and the antecedent user before the Sub-Registrar of Amta. It is secondly contended that the institution of the civil suit in the Court of the 2nd Munsif at Howrah, having preceded the complaint on which the criminal proceedings have been taken these proceedings should await the determination of that suit.
We have then first to ascertain whether the document was in fact “produced or given in evidence” in the course of the sec. 145 proceedings. When these proceedings were pending the document, it appears, was on the record of a case instituted against the stamp-vendor Doyal Sau and on the 8th of March the present Petitioner Nolini Kanta Laha presented a petition to the Honorary Magistrate in which he prayed that the document should be called for and used in the sec. 145 proceedings. Thereupon on the 11th of March the Honorary Magistrate called for this document and other documents on the ground that reference to them was essentially necessary and the document was accordingly transmitted to him by the Sub-divisional Officer, Uluberia, on the 15th of March.
We next find that in the course of the argument the pleader for the 2nd party Nolini and Fakir made use of the document and that in his judgment the Honorary Magistrate refers to it though he refrains from expressing any opinion on its authenticity. On these facts we think that we ought to hold that in the proceedings in the Court of the Honorary Magistrate of Amta, the document was produced within the meaning of sec. 195(1), (c). In support of this view we may refer to the cases of Guru Charan v. Girija Sundari(1), Akhil Chandra v. Queen-Empress(2), Sew Bollock v. Ramadhin(3) and In re Gopal(4).
The question then is whether this production makes a sanction necessary before the Petitioners Nolini and Fakir who were parties to the proceedings, under sec. 145, Or. P.C, can be prosecuted in respect of the antecedent forgery and the antecedent user before the Sub-Registrar.
The Crown contends that such sanction is necessary only when the offences charged have been committed by the persons accused as and when parties to the proceedings in which the production took place.
The language of sec. 195(1), (c) is by no means clear and would seem to admit of either construction, but though the contention on behalf of the Crown is supported by the case of Noor Mahomed v. Kaikhosrie(5), we are of opinion that this is unduly to limit the scope of the sub-clause under consideration. The view urged on behalf of the Petitioner has been taken in Teni Shah v. Bolahi Shah(6) and Bhawani Das v. Emperor(7) and is also supported by the course of reasoning followed in Re Parmaswaran Nambudri(8). With these decisions we agree and in this view the prosecution of the principal Petitioners Nolini and Fakir Chandra cannot proceed without sanction. The other three Petitioners who are charged as accessories were not parties to the case under sec. 145, Cr. P.C, but it is not desirable that proceedings should be taken piecemeal or against the abettors while there is still a bar to the prosecution of the principals.
In this view it is unnecessary to discuss the second contention advanced on behalf of the Petitioners.
For the reasons given, we quash the proceedings now taken against the Petitioners Nolini and Fakir, and stay the proceedings against the remaining three Petitioners until the bar to a prosecution of the principals has been removed.
S.C.M