Empeeor v. Waman Dinkar Kelkar And Another., Bombay High Court, Judgment, Law, casemine.com

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Case Number

Criminal Appeals Nos. 36 and 37 of 1918

Attorney(S)

Binning, with N.V Gokhale, for the Mamlatdar.
G.S Rao, for the Inamdar.
Velinkar, with S.S Patkar, for the Crown.

Judges

Heaton
Hayward, JJ.

Acts

sections 209, 471, 219 and 109 of the Indian Penal Code.
sections 195 and 476 of the Criminal Procedure Code
SECTION 476 CRIMINAL PROCEDURE CODE
section 476 of the Criminal Procedure

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Smart Summary

Factual and Procedural Background

This opinion arises from two appeals against convictions recorded by the Sessions Judge of Satara, following a trial with assessors. The appellants were (1) the Inamdar of Patan and (2) the Mamlatdar of Patan.

The Inamdar was convicted of: (a) bringing a false claim for rent against his tenants (certain Chambhars) in the Mamlatdar's Revenue Court; (b) using as genuine a Kabulayat which had been altered by forgery to establish his claim in the Revenue Court; and (c) abetting a corrupt judgment passed by the Mamlatdar against those Chambhars. The assessors concurred and the Sessions Judge sentenced him to concurrent sentences which had the practical effect of sending him to five years' rigorous imprisonment under sections 209, 471, 219 and 109 of the Indian Penal Code.

The Mamlatdar was convicted of: (a) forgery by altering the Inamdar's statement on the first hearing of the Revenue case to support the forged Kabulayat; and (b) delivering a corrupt judgment against the Chambhars in his Revenue Court. The assessors concurred and he was sentenced to concurrent sentences which had the practical effect of sending him to five years' rigorous imprisonment under sections 466 and 219 of the Indian Penal Code.

Procedural history relevant to a preliminary jurisdictional objection: the Revenue Court decision was appealed on 8 March 1916 to the Assistant Collector, who reversed the decision on 18 July 1916 because of suspicions about the forged Kabulayat. The Assistant Collector called for an explanation from the Inamdar on 28 July 1916; the Mamlatdar submitted a report on 10 October 1916. Believing the matter required further inquiry, the Assistant Collector on 7 March 1917 applied to the District Magistrate for assistance from the Criminal Investigation Department. A police report was submitted on 2 July 1917, and the Assistant Collector referred the matter under section 476 of the Criminal Procedure Code to the nearest First Class Magistrate for inquiry. The result was commitment of the appellants for trial before the Sessions Court of Satara.

Legal Issues Presented

Whether the committal and trial before the Sessions Court were valid where the alleged offences arose from judicial proceedings in the Mamlatdar's Revenue Court and subsequent action was taken by the Assistant Collector under section 476 CrPC.
Whether the jurisdiction conferred by section 476 CrPC was invalid as to the Mamlatdar because the alleged offence was not "brought to notice" during the judicial proceedings as regards him.
Whether the Assistant Collector became functus officio and thereby lost jurisdiction to act under section 476 CrPC after making a reference to the District Magistrate (and by implication delegating further inquiry to the District Magistrate or police).
Whether delay between the conclusion of the judicial proceedings and the exercise of powers under section 476 CrPC was fatal to jurisdiction — i.e., whether the order under that section must be made immediately at the conclusion of the judicial proceedings or so shortly thereafter as to be part of those proceedings.

Arguments of the Parties

Appellants' Arguments

The offences arose from judicial proceedings in the Mamlatdar's Revenue Court, but the appellant Mamlatdar's criminality was not brought to notice during those proceedings — only the Inamdar's was; therefore the committal was invalid as to the Mamlatdar.
The Assistant Collector should have completed the whole of the preliminary inquiry himself; by making a reference to the District Magistrate (and seeking police assistance) he became functus officio and lost jurisdiction to act under section 476 CrPC.
There was delay between the conclusion of the revenue judicial proceedings and the exercise of powers under section 476; according to authorities from the Madras and Calcutta High Courts (as cited), such delay is fatal and the section must be exercised in the course of or immediately after the judicial proceedings.

The opinion does not contain a detailed account of the respondent's (prosecution's) separate arguments; the Court's reasoning addresses and rejects the appellants' objections.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rahimadulla Sahib v. Emperor	Held that orders under the relevant provision must be made either at the end of the judicial proceedings or so shortly thereafter that the order may reasonably be considered part of those proceedings.	Cited as authority for the proposition that timing is essential to jurisdiction; the Court noted this decision but treated it as part of a body of decisions with which it respectfully differed on the correct interpretation of the section.
Aiyakannu Pillai v. Emperor (Full Bench, Madras)	Held the power ought to be exercised either in the course of judicial proceedings or at its conclusion or so shortly thereafter as to make it a continuation of those proceedings.	Recognised by the Court as a later Full Bench decision modifying the earlier language; acknowledged but not followed by the Court, which preferred a different interpretation.
Begu Singh v. Emperor	Held that the power conferred should be exercised immediately after conclusion of the trial.	Noted by the Court as following the restrictive approach; the Court declined to adopt this narrow temporal limitation.
Bahadur v. Eradatullah Mallick (Calcutta High Court)	Laid down that action must be prompt and expeditious in order to be within the jurisdiction conferred by the section.	Noted as part of the Calcutta High Court authorities advocating prompt action; the Court accepted promptitude as desirable but rejected an implied strict time-bar in the section's wording.
In re Lakshmidas Lalji (dicta of Chandavarkar J., Bombay High Court)	Contains obiter dicta to the contrary of the Madras/Calcutta view — suggesting the section does not impose the strict temporal limitation urged by those decisions.	The Court (Hayward, J.), with respect to the contrary authorities, adopted the view expressed in these dicta and held that the section contains no express temporal limitation; the dicta were followed in preference to the restrictive approach.

Court's Reasoning and Analysis

The Court addressed the appellants' preliminary jurisdictional objection in three parts and rejected each limb:

On the contention that the case was not "brought to notice" as regards the Mamlatdar: the Court analysed the language of the provision (section 476 CrPC) and observed that it provides for sending the "case" for inquiry after a preliminary inquiry into any offence brought to notice — that is, the provision contemplates sending the case, not necessarily all the offenders who may be concerned. The subsequent clause permitting the sending of an offender in custody was construed as permissive and applicable only to such offenders as might at that time be known and within the enquiring officer's grasp. Thus the fact that the Mamlatdar's alleged criminality was discovered during the preliminary inquiry did not deprive the committing authority of jurisdiction.
On the argument that the Assistant Collector became functus officio by referring the matter to the District Magistrate and therefore could not act under section 476: the Court noted that the preliminary inquiry required by the section is only such inquiry as may be necessary. The Assistant Collector had in fact made some inquiry himself. Referring for assistance to the District Magistrate (as Executive Controller of Police) and using the Criminal Investigation Department for further inquiry was characterised as a legitimate and prudent step that did not divest the Assistant Collector of jurisdiction under the section. The reference was regarded as administrative/operative to secure police assistance rather than a transfer of judicial power that would render the Assistant Collector functus officio.
On the objection of delay: the Court first found, factually, that there was no undue or unreasonable delay. The Assistant Collector acted within ten days after his decision of 18 July 1916 by calling for explanation on 28 July 1916; the remaining time was taken up by the preliminary inquiry and the police investigation. The Court then engaged with authorities from the Madras and Calcutta High Courts which had read a strict temporal limitation into the section (requiring exercise of the power during or immediately after the judicial proceedings). Respectfully disagreeing with those authorities, the Court held that to read such a limitation into the section would be to import words not present in the statute. While it was desirable that action be taken promptly, nothing in the section's wording or the reasons for its enactment imposed the strict limitation argued for; rather, the section was intended to facilitate prosecutions whenever offences came to notice, even if the identity of offenders became clear only after months or years.

On the merits, the Court (Hayward, J.) considered the charges individually. He concluded that, on the charges originally discussed regarding the Chambhar tenants, there was sufficient basis to dismiss the appeals and confirm convictions and sentences. However, on other charges relating to a tenant named Dayanu (Dnyanu/Dnyanu Gopal), the Inamdar had been acquitted of making a false claim, yet was convicted of abetting a corrupt judgment; the Mamlatdar's convictions relating to that tenant (for forgery of the tenant's statement and for delivering a corrupt judgment) were difficult to support in light of the acquittal and the assessors' divided opinion as to the forgery. Accordingly, the Court reversed the convictions on those specific charges for both appellants.

Heaton, J. added briefly that he could not accept the restrictive interpretation of section 476 urged by the Madras and Calcutta authorities; he agreed with the view that the section is worded to permit inquiry and action even where the actual offender is not immediately known and that months or years may elapse before offenders are identified. He expressed the view that imminent legislative revision (repeal or alteration of sections 195 and 476 CrPC) would clarify the matter.

Holding and Implications

Primary Holding: Convictions and sentences in relation to the principal charges concerning the Chambhar tenants were confirmed, and the appeals on those counts were dismissed.

Partial Reversal: Convictions relating to the separate tenant Dayanu (Dnyanu/Dnyanu Gopal) — specifically the Inamdar's conviction for abetting a corrupt judgment and the Mamlatdar's convictions for forgery of that tenant's statement and for delivering a corrupt judgment — were reversed for both appellants.

Implications:

Direct effect on the parties: the Inamdar's overall sentencing (concurrent sentences practically resulting in five years' rigorous imprisonment under sections 209, 471, 219 and 109 IPC) and the Mamlatdar's overall sentencing (concurrent sentences practically resulting in five years' rigorous imprisonment under sections 466 and 219 IPC) were upheld except to the extent of the reversed charges relating to the tenant Dayanu.
Jurisdictional position: the Court rejected a strict temporal limitation on the exercise of powers under section 476 CrPC — holding that the section contains no express words of limitation requiring action during or immediately after the judicial proceedings, and that preliminary inquiry and later identification of offenders do not necessarily deprive the committing authority of jurisdiction. The Court therefore preferred the view (expressed in dicta by Chandavarkar J. in In re Lakshmidas Lalji) that the section was intended to facilitate prosecutions whenever offences came to notice.
Precedential effect: the opinion engages with and expressly disagrees with the majority positions of the Madras and Calcutta High Courts on the temporal limitation issue; the Court's reasoning represents its interpretive stance but the opinion itself does not announce any legislative change. Heaton, J. noted that legislative reform (of sections 195 and 476 CrPC) was anticipated and would resolve existing conflicts in authority.

Order pronounced: Convictions and sentences confirmed (subject to the specific reversals noted above).

Registry notation in the opinion: "R.R" (as printed in the source).

Show full summary ...

Empeeor v. Waman Dinkar Kelkar And Another.

Hayward, J.:— These are two appeals against convictions recorded at a trial with assessors by the Sessions Judge of Satara. One appellant is the Inamdar of Patan. The other appellant was the Mamlatdar of Patan. The Inamdar has been convicted of having brought a false claim for rent against his tenants, certain Chambhars, in the Revenue Court of the Mamlatdar. He has also been convicted of having used as genuine a Kabulayat which had been altered by forgery for the purpose of establishing his claim against those Chambhars in the proceedings in the Revenue Court. He has also been convicted of having abetted a corrupt judgment which had been passed against those Chambhars by the appellant Mamlatdar in that Court. The convictions were concurred in by both the assessors and he was sentenced to concurrent sentences which had the practical effect of sending him to prison for five years' rigorous imprisonment under sections 209, 471, 219 and 109 of the Indian Penal Code. The appellant Mamlatdar has been convicted of forgery in that he altered the statement as made by the appellant Inamdar on the first hearing of the Revenue case for the purpose of supporting the claim based on the forged Kabulayat. He has also been convicted of having delivered a corrupt judgment against the Chambhars in those proceedings, in his Revenue Court. These convictions were concurred in by both the assessors and he was sentenced to concurrent sentences which had the practical effect of sending him to rigorous imprisonment for five years under sections 466 and 219 of the Indian Penal Code.

The appellants raised a preliminary objection to the trial which was, however, overuled by the Sessions Judge. They have repeated that objection here. Their objection is based on these facts. The offences which have been the subject of trial arose, as has already been indicated, out of judicial proceedings in the Revenue Court of the Mamlatdar. There was an appeal from that decision on the 8th of March 1916 to the Assistant Collector and the decision was, owing to suspicions raised in his mind by the condition of the forged Kabulayat, reversed by him on the 18th of July 1916 as the appellate Revenue Court. The Assistant Collector in consequence of the suspicions so raised proceeded, on the 28th of July 1916, to call for the explanation of the appellant Inamdar, and, accordingly, on the 10th of October 1916, a report on the matter was submitted to him by the appellant Mamlatdar. The Assistant Collector appears, after consideration of the explanation and the report, to have considered the matter serious and demanding further and closer inquiry. He, accordingly, on the 7th of March 1917, applied for the assistance of the Criminal Investigation Department from the District Magistrate. This assistance was granted and on the 2nd of July 1917 a full report was submitted to him by the Deputy Superintendent of Police. After considering all the matters before him he then passed an order referring the matter for inquiry to the nearest First Class Magistrate under section 476 of the Criminal Procedure Code. The result was that the appellants were committed to take their trial before the Sessions Court of Satara.

The appellants upon these facts urge in support of their objection that even if the offence was brought under notice in the judicial proceeding of the Assistant Collector as regards the appellant Inamdar, it was not brought to notice as regards the appellant Mamlatdar. It has further been urged that the whole of the preliminary inquiry ought to have been made by the Assistant Collector and that he was functus officio after having made his reference to the District Magistrate and had no longer any jurisdiction to pass an order under section 476 of the Criminal Procedure Code. It has also been urged that there was delay in proceeding under that section and that that delay was fatal to his jurisdiction in accordance with certain rulings which have been quoted before us of the Madras and Calcutta High Courts.

It seems to me, however, that there is no substance in any of these arguments. It is to be noticed with regard to the first argument that what is. provided for is that after making preliminary inquiry into any offence brought to notice the case may be sent for inquiry to the nearest Magistrate of the First Class, that is to say, it is the case which is to be sent and not necessarily all the offenders who may be concerned in the commission of the offence. The subsequent clause providing the sending of the offender in custody is permissive and would appear to me to refer only to such offender or offenders as might at that time be known and be within the grasp of the enquiring officer. It seems to me, therefore, that no solid objection can be taken to the jurisdiction on the ground that the criminality of the appellant Mamlatdar was only discovered afterwards in the course not of the judicial proceedings in the revenue matter, but in the course of the preliminary inquiry into the suspected criminal offence.

Nor does there seem to me to be any more substance in the second argument that the whole inquiry should have been made by the Assistant Collector. It is to be observed that the preliminary inquiry to be made is only such inquiry as may be necessary and it cannot be denied in this case that some inquiry at least was made by the Assistant Collector himself. It does not, therefore, appear to me to be a defect which could deprive him of the jurisdiction that he took the precaution of making a more careful and deliberate inquiry with the assistance of the Criminal Investigation Department. It seems to me that that was all he did and that his reference to the District Magistrate was merely to that officer as the Executive Controller of the Police and not to him in his judicial capacity as the District Magistrate. It is difficult in any case to see how the reference to the District Magistrate could have deprived the Assistant Collector of jurisdiction under section 476 of the Criminal Procedure Code.

With regard to the third argument as to delay it has first to be observed that there was as a matter of fact no undue or unreasonable delay. The Assistant Collector's decision in the revenue proceedings was passed on the 18th of July 1916 and he took action within ten days on the 28th of July 1916. The rest of the time was occupied in the preliminary inquiry and it cannot, in my opinion, be said to bp unreasonable looking to the complicated nature of the case which he had before him. But this third argument is supported by authority, and that authority requires respectful consideration. It has been held in the case of Rahimadulla Sahib v. Emperor that it is essential to the jurisdiction conferred by the section that the order should be made either at the end of the judicial proceedings or so shortly thereafter that it may reasonably be said that the order is part of those proceedings. It was apparently felt that the last sentence required some modification to make it clear and it was accordingly held in the later case of Aiyakannu Pillai v. Emperor that the power conferred by the section ought to be exercised either in the course of the judicial proceedings or at its conclusion or so shortly thereafter as to make it really the continuation of those judicial proceedings. These two decisions were not unanimous. They were decisions by the Full Bench of the Madras High Court. They were, however, followed in the case of Begu Singh v. Emperor in which it was held that the power conferred by the section ought to be exercised immediately after conclusion of the trial and again in the case of Bahadur v. Eradatullah Mallick in which it was laid down that action must be prompt and expeditious in order to be within the jurisdiction conferred by the section. These were decisions by the Calcutta High Court. On the other hand there are some obiter dicta to the contrary in the case of In re Lakshmidas Lalji and those dicta were followed by the Sessions Judge. It seems to me, with every respect to the contrary decisions of the majority of the learned Judges of the Madras and Calcutta High Courts, that those dicta are correct. They were dicta of Chandavarkar J. of this Court. To hold otherwise would be to read into the section words of limitation which have not been placed there by the Legislature. It is no doubt expedient that action under that section should be taken with as much promptitude as possible. But there does not appear to me to be anything in the wording of the section or in the reasons for its enactment to hold that officers acting under it are bound to make their inquiry either in the actual course of the judicial proceedings or so shortly thereafter as to make it really a continuation of those proceedings. The section appears to have been enacted not with the intention of protecting offenders against public justice from prosecutions by the Courts, but on the contrary to facilitate, wherever and whenever those offences might come to notice, such prosecutions by the Courts.

[His Lordship next dealt with the case on its merits and concluded as follows:—]

It seems to me for these reasons that the appeals of both the Inamdar and the Mamlatdar ought, on the charges so far discussed, to be dismissed and the convictions and sentences confirmed. But there were other charges against them in respect of another tenant named Dayanu Gopal. The appellant Inamdar was acquitted of having made a false claim against this tenant Dnyanu Gropal bat convicted of having abetted a corrupt judgment against him by the appellant Mamlatdar. The appellant Mamlatdar was convicted of forgery in altering the statement of this tenant Dnyana Gropal and of having delivered a corrupt judgment against him. in the Mamlatdar's Revenue Court. The assessors concurred in the acquittal and in the convictions but were divided in opinion as to the forgery of the statement of Dnyanu Gopal. The acquittal was accepted and sentences concurrent with the rest of the sentences were recorded in respect of the convictions by the Sessions Judge. But it is difficult in view of the acquittal of the appellant Inamdar of having made a false claim against this tenant Dnyanu Gopal to support his conviction for abetting a corrupt judgment against this tenant by the appellant Mamlatdar. It is similarly difficult to support the convictions of forgery in respect of the statement of this tenant Dnyanu Gopal and of having delivered a corrupt judgment against him. recorded against the appellant Mamlatdar. It seems to me, therefore, that the convictions on these charges ought to be reversed in the case both of the appellant Indamdar and the appellant Mamlatdar.

Heaton, J.:— [His Lordship, after dwelling on the merits of the case, proceeded as follows:—]

I should like to add one word about the legal point which was argued. I make it very brief, because I am glad to think that Legislation will shortly wipe out the present sections 195 and 476 of the Criminal Procedure Code and in so doing will abrogate the medley of conflicting decisions which we have on those sections. I cannot, after giving the matter my best consideration, hold that section 476 limits the jurisdiction of a Court in the manner suggested in the Madras and Calcutta cases. There is no limitation of jurisdiction in the words of the section. The limitation is to be found, if it is found at all, by implication. Arguments as to implication in a case of this kind are always such that some will appeal to one mind, some to another. I confess that I myself see more force in the view taken by the two Judges of this Court who have expressed themselves than by the Judges of the Calcutta and Madras High Courts.

Then as to the word “offence” in section 476: Of course where you have an offence, you must have an offender though you may not know who the offender is. But it seems to me that the section not only intends to, but is expressly worded so that it may confer on a Court a power to inquire into a case and to take action, whoever may prove to be the offender, although months or even years may elapse before it becomes known with any degree of certainty who the offenders are.

I agree to the order proposed by my learned brother.

Convictions and sentences confirmed.

R.R

Empeeor v. Waman Dinkar Kelkar And Another.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Empeeor v. Waman Dinkar Kelkar And Another.

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