The prosecution of petitioner for abetment of offences under Sects. 467 and 471, of the Indian Penal Code, has been ordered by the District Munsif of Karur, and objection is now taken that the District Munsif acted without jurisdiction inasmuch as petitioner was not a party to the proceedings in which the forged document was produced, the argument being that the words in Sect. 476 of the Criminal Procedure Code “Offence referred to in Sect. 195” must be restricted to an offence committed in the manner laid down in Sect. 195. Under Sect. 195(1) (c), the offence must have been committed by a ‘party.’ If therefore the offence has been committed by a person not a party, Sect. 195(1), (c) is inapplicable, and it is contended that Sect. 476 is also inapplicable. This view has been approved in In Re Ramalingam(2), by a bench of this Court following Abdul Khadar v. Meera Saheb, but a different view has been held in the Bombay High Court (In Re Devjivalad Bhavani(3) and In Re Keshav Narayan(4) and in the Calcutta High Court (Akil Chandra De v. Queen-Empress(5). This last case was considered in Jadu Nandan Singh v. Emperor(6), and distinguished on the ground that the former referred to an offence under Sect. 195(1), (c), and the latter to an offence under cl. (b) of the same section, but was not dissented from. In this Court there is a dictum of Sankaran Nair, J. in Aiyakannu Pillai v. Emperor(7), at page 57, that offences in cl. (c) of Sect. 195 must be committed by a party, while the sqope of Sect. 476 is not so restricted in which he expressly follows In Re Devjivalad Bhavani and with this view we respectfully concur, as apparently did the learned Judge who admitted this petition, and consequently we feel constrained to refer the question to a Full Bench.
The fact that some of the decisions quoted relate to Sect. 478 and not to Sect. 476 is not of importance, because Sect. 478 refers to “any such offence,” i.e, “any offence referred to in Sect. 195” as mentioned in the two preceding sections. In both sections therefore the sole question to be determined is the meaning of the words, “offence referred to in Sect. 195” The word offence’ is defined in the Code in Sect. 4, cl. (o):—“offence means any act or omission made punishable by any law for the time being in force.” So there can be no doubt as to the meaning of that. There remain only the words “referred to in Sect. 195.” It is certainly the usual method employed in the drafting of the Code to use the words “made punishable by sections * * * * (enumerating the sections),” and this form would undoubtedly have been used in Sect. 476, if it had been the first section in which these offences were grouped together, but it is not, for we have the words in Sect. 195 itself in cls. (a) and (b) which run as “any offence punishable under Sects. 172 to 188” and “any offence punishable under Sects. 193, 194, etc.” The use of different language in this section seems to be thus sufficiently explained by the fact that Sect. 476 was referring to Sect. 195, and it is difficult to see what language would be more appropriate if the legislature did not wish to repeat the long list of sections given in Sect. 195. Legislation by reference is stated to be due to considerations of brevity, and the same reason will explain the non-recapitulation of this long list of sections. We see no reason why any other explanation is required. To read those words as incorporating the conditions contained in Sect. 195 for the taking of cognizance is, in our opinion, undoubtedly an extension of the natural meaning of the words “referred to in Sect. 195.” It would be easy to find words appropriate for importing those conditions if that had been intended; but they are not used. If Sect. 476 had contained only the sentence, “when any * * * Court is of opinion that there is ground for inquiring into any offence referred to in Sect. 195, such Court after making, etc.” we should have been of opinion that the words “referred to” were nothing more than a substitute for enumeration. But there is the still further difficulty in the way of the construction put on these words by Abdur Rahim, J., in In Re Ramalingam, which is this, that the incorporation of the conditions to be found in Sect. 195 introduces conditions into Sect. 476, which partly cover the same ground as the conditions to be found in that section. It cannot be denied that the conditions in Sect. 195 and those specifically referred to in Sect. 476 are in pari materia. The language in Sect. 476 is, “and committed before it or brought under its notice in the course of a judicial proceeding.” This is analogous to the provision in Sect. 495 (1), (b) where the words are, “when such offence is committed in or in relation to any proceeding in any Court,” and the words in cl. (c), “when such offence has been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding.” It would be strange if the legislature intended to introduce the narrower requirements of cls. (b) and (c) of Sect. 195, and yet incorporate into the section the wider language we have in Sect. 476. Further than that, the suggested construction of the section requires the clause to be read as follows:—“When any Court is of opinion that there is ground for inquiring into any offence punishable under Sect. 193, etc, when such offence is committed in or in relation to any proceeding in any Court and when committed before it or brought under its notice in the course of a judicial proceeding etc.” That is with reference to offences in cl. (b). With reference to the offences in cl. (c), the result is still more extraordinary. “It would read * * * into any offence described in Sect. 463 or punishable under Sects. 471, 475 or 476 of the same Code,” when such offence has been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, when it is committed before it or brought under its notice in the course of a judicial proceeding, etc.” It seems to us, with clue deference to the view taken in Re Ramalingam, that to read Sect. 476 like that is to commit the legislature to inconsistency in some respects and tautology in others. We are therefore thrown back on what we consider to be the natural meaning of the words “referred to,” and are of opinion that they are only words of description.
We therefore refer for the consideration of the Full Bench the following question:—
“Do the words in Sect. 476 of the Code of Criminal Procedure, any offence referred to in Sect. 195, incorporate the conditions laid down in Sect. 195 for taking cognizance of the offence by a Court?”
[This Petittion came on for hearing on the 17th day of February 1919, in pursuanoe of the order of Reference before the Full Bench as constifuted above.]
Dr. S. Swaminathan for the Petitioner.
The Public Prosecutor for the Government.
OPINION
The Chief Justice. — I am of opinion on the construction of the section that the words “any offence referred to in Sect. 195” refer to offences within the scope of Sect. 195, and not to all offences against the sections of the Indian Penal Code enumerated in Sect. 195 whether or not they afe within the scope of that section. The preponderance of authority is in favour of this view, beginning with Abdul Khadar v. Meera Saheb. Parker and Shephard, JJ., gave no reasons for their decision in that case, but they were no doubt familiar with the history of the section, and knew that the words “committed before or brought under its notice in the course of a judicial proceeding” were first introduced into the section in the Code of 1882 as a further limitation on its operation, and that the corresponding sections of the Codes of 1861 and 1872 were clearly limited to cases coming within the operation of the sections corresponding to Sect. 195 of the present Code. In the Code of 1872 Sect. 471 (now 476) was immediately preceded by Sects. 467, 468 and 469, which in 1882 were consolidated and transferred as Sect. 195 to an earlier part of the Code. Sect. 471 began thus:—When any Court, Civil or Criminal is of opinion that there is sufficient ground for enquiry into any charge mentioned in Sects. 467, 468 and 469, the Court, after making such preliminary enquiry, etc.” The marginal note “Procedure in cases mentioned in Sects. 467, 468 and 469” meaning, of course, procedure in cases mentioned in those sections where such proceedings were taken by a Civil or Criminal Court in my opinion correctly represents the effect of the section. There appears to me to be no sufficient reason for holding that Sect. 471 of the Code of 1872 or the corresponding section of the Code of 1861, intended to give all Courts, Civil or Criminal, an unlimited power of originating prosecutions under all the sections of the Indian Penal Code mentioned in the sections referred to, or that the substitution of the words “any offence referred to in Sect. 195” for “any charge mentioned in Sects. 467, 468 and 469” had that effect. On the contrary the power conferred on the Court by Sect. 471 of the Code of 1872, even as restricted with reference to the preceding sections, was apparently considered too wide, and was further limited in 1882 by imposing the restriction that the offence, must have been “committed before it or brought under its notice in the course of a judicial proceeding.” The attention of the learned Judges who decided Akhil Chandra De v. Queen-Empress, and of the referring Judges in this case was not called to the fact that Sects. 195 and 476 of the present Code were not enacted for the first time in their present form, in which case they might have been expressed differently and other cases such as the present included, or to the fact that the awkwardness or tautology to which they refer was the result of introducing a further limitation into the section by the words added in 1882. In some cases covered by Sect. 195, the new restriction was no doubt unnecessary, as pointed out by the referring Judges, but as a matter of drafting it was the easiest course to make the new restriction in general terms even at some risk of tautology. I may add that, where sections are repealed and re-enacted in slightly different form, there is a presumption against implied as contrasted with express alterations in the scope of the section. J would answer the question in the affirmative.
Ayling, J.—I agree.
Kumaraswamy Sastri, J.—I agree.
M. R.Question answered in the affirmative