Rowland, J.:— The appellants have been convicted by the Sessions Judge of Gaya of offences committed in connection with an unregistered usufructuary mortgage deed which was used by the defence in a criminal case in which Jageshwar Singh and Jagdeo Singh were accused under S. 447, I.P.C Possession of a plot of land was in issue and the document purported to create a hypothecation of this plot in favour of Jageshwar and Jagdeo. Jugal Lal's signature appeared on it as an attesting witness and it purported to be scribed by Parmeshwar Lal of Misirbigha. The document was found to be a forgery. The Honorary Magistrate Khan Sahib Syed Muhammad Islam, who disposed of the case, called on Jageshwar, Jagdeo and Jugal to show cause against their prosecution. It was alleged that the document was not written by Parmeshwar Lal but by Raghubar Dayal. He was also called on to show cause against prosecution. So was Bikhari Lal, another person whose name appeared on the margin as an attesting witness. The Honorary Magistrate purporting to act under S. 476, I.P.C, complained against Jageshwar, Jagdeo and Jugal Lal, the first two under Ss. 471 and 467 read with S. 120 and the third under Ss. 193 and 467 read with S. 120, I.P.C His view was that the forged document came into being as a result of conspiracy and the complaint appears to have been intended to refer to S. 120-B, I.P.C He declined to prefer a complaint against Raghubar Dayal and Bikhari Lal.

2. Against this order Shamdeo, the complainant of S. 447 case, preferred an appeal to the District Magisbrate, who after reviewing the facts, found that there was a prima facie case against Raghubar Dayal and Bikhari also, and under Section 476-B of the Cr PC, he complained against these two persons under S. 467 and S. 467 read with S. 120-B, I.P.C He directed these two accused to be proceeded against in the same case as the other three persons already being prosecuted. The Sessions Judge found that the document was forged, basing his judgment on possession of the land by the opposite party, Shamdeo Singh; on the production of rent receipts by Shamdeo; on the fact that the original raiyati khatian was in possession of Shamdeo; on the fact that proceedings have been taken by Shamdeo under Section 40 of the Ben. Ten. Act; on the absence of mention of this document in the written statement of Jageshwar and Jagdeo in the S. 447 case; on the fact that the stamp paper was of insufficient value being on 4 annas stamp instead of 8 annas; on the fact that the purchase of the stamp paper as endorsed thereon was later than the date of the alleged document; and on the evidence of the handwriting expert and other persons as to handwriting. The explanations offered for the appellants entirely failed to displace the reasoning of the Sessions Judge which is fully supported by the evidence, and the argument in the appeal has been directed mainly to an attack on the regularity of the initiation of the proceedings. The order of Khan Sahib Syed Muhammad Islam for the prosecution of the first three accused was dated 7th February, 1934, and his complaint was presented on 16th February. At that time he was not exercising the powers of a Magistrate. He had been vested with such powers by Notification No. 258 dated 27th September, 1930, for a period of three years expiring on 26th September, 1933. He was again vested with magisterial powers on 18th July, 1934, and it is argued that in the interval he was not a Court capable of initiating proceedings under S. 476. The Sessions Judge thought that once a commitment had been made it was too late for the accused to take an objection against the initiation of the proceedings which they ought to have taken at an earlier stage. They had not appealed to the District Magistrate against the order purporting to be made under S. 476 directing their prosecution, nor to the Sessions Judge against the order of the District Magistrate under S. 476-B. The Sessions Judge's view is supported by the decision of the Calcutta High Court in 1929 Cal 203(1). The decision is followed by the same Court in 1932 Cal 545(2). The intention of the legislature appears to be to prevent innocent persons being put on trial at the instance of persons likely to be moved by motives of revenge and not protect guilty persons from the penalty of their crimes. There is another answer available to the prosecution and that is that the Sub-divisional Magistrate, before whom the case against all these appellants was inquired into, had before him the complaint of the District Magistrate under S. 476-B against two of the persons who were put on trial. What S. 195 prohibits is taking cognizance of an offence of a certain class except on a complaint of a Court; but where a Court has complained of an offence specified in this section then cognizance can be and is to be taken of the whole case, that is to say prosecution will go forward as against all the persons found to be concerned in the offence and also under any sections found applicable to the facts which are the subject-matter of the complaint. It was so held in this Court in the case of 15 PLT 438(3) and in 15 PLT 694(4). The complaints considered in those cases were complaints by private parties and not of offences requiring a complaint by a Court for the institution of proceedings.

3. But I have no doubt that the principle applies; cognizance having been taken of an offence, the inquiry will proceed against all the persons whom the evidence shows to have been concerned in it provided that the Court making the complaint and naming some persons therein has not expressly considered and decided in the negative, the question whether other persons should also be prosecuted on the same facts. I am satisfied therefore that Section 195 of the Cr PC, was no bar to the conviction of the appellant Raghubar Dayal under Ss. 467 and 193, of Jugal Lal under S. 471/109, of Jugeswar Singh under S. 467 and S. 467 read with S. 471, and of Jagdeo Singh under S. 467 read with S. 471. I need not discuss the proceedings against Bhikhari who has been acquitted. There was a further charge against all the appellants under S. 120-B, I.P.C which was not framed by the committing Magistrate but by the Sessions Judge. The appellants have been convicted under this section also. No separate sentence was imposed, so the discussion of the propriety of the Sessions Judge framing a new charge under this section is somewhat academic. The law restricting the institution of a prosecution under S. 120-B, I.P.C, is contained in Section 196-A of the Cr PC, and it is noticeable that the restrictions apply not to every class of criminal conspiracy. Referring to S. 120-B, I.P.C, we find that sub-section (1) imposes a penalty equal to the punishment for abetment, on participation in a criminal conspiracy to commit an offence punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, in case no express provision is made in the Code for the punishment of such a conspiracy.

4. The section appears to have been in troduced to fill a gap in S. 107, I.P.C defining abetment. Under S. 107, secondly, a person abets the doing of a thing who engages with others in a conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy. Abetment of an offence is punishable under Ss. 109 or 114 as the case may be if the offence is committed, or under Ss. 115 and 116 as the case may be if the offence be not committed; but it is clear that a conspiracy will not amount to an abetment unless an act or illegal omission takes place in pursuance of the conspiracy. Therefore the first class of cases which S. 120-B is designed to cover, is that in which the conspiracy is formed for the commission of a serious offence but no act or illegal omission has taken place in pursuance of it. S. 120-A, which defines criminal conspiracy, enacts that an agreement to commit an offence may itself amount to a criminal conspiracy even if no overt act follows on the agreement.

5. The second class of cases is that in which the conspiracy is formed in order to do an illegal act or an act not illegal by illegal means; this sort of conspiracy in no case amounts to abetment and does not amount to a criminal conspiracy unless some act besides the agreement is done in pursuance thereof. Thus, whereas S. 120-A provides an extended definition of criminal conspiracy covering acts which do not amount to abetment by conspiracy within the meaning of S. 107, Section 120-B provides a punishment for criminal conspiracy “where no express provision is made in this Code for the punishment of such a conspiracy.” Where a criminal conspiracy amounts to an abetment under S. 107 it is unnecessary to invoke the provisions of S. 120-A and 120-B because the Code has made specific provision for the punishment of such a conspiracy. In the case before us, the offences which are alleged to have been the object of the conspiracy were in fact committed; so the conspiracy amounted to abetment. The Court should not, therefore have framed additional charges under S. 120-B. Appellants having been convicted on the substantive charges framed were not liable to be convicted also of conspiracy. Argument was entered into on the question whether there was a proper sanction to the framing of charges under S. 120-B. It is not necessary to go into this matter when on other grounds those charges have failed. I would set aside the convictions under S. 120-B, I.P.C, while confirming the convictions under the other sections. The Sessions Judge has imposed sentences of 5 years on Raghubar Dayal, of three years on Jugal and Jageshwar and of 2 years on Jagdeo. As the sentences do not appear to be excessive, I would dismiss the appeal.

6. Dhavle, J.:— I agree. As regards the merits there cannot be any doubt on the evidence that the forgery and connected offences have been brought home to the appellants as charged. As regards the initiation of these proceedings the facts are very peculiar. Stress has been laid by the appellants on the facts that though the first complaint under Section 195 of the Cr PC, was made by Khan Sahib Saiyed Muhammad Islam signing as Honorary Magistrate, he was at that time without any powers as a Magistrates S. 195(c) requires a complaint of the Court in which the forged document was produced or of some other Court to which such Court is subordinate. The forged mortgage bond had been produced before Mr. Islam during his trial of the case, brought under S. 447, I.P.C, by Shamdeo against Jageshwar Singh and Jagdeo Singh, in exercise of the powers of a Magistrate conferred upon him for three years by the notification of 27th September, 1930. When these powers expired by lapse of time, he was not succeeded by any other Magistrate.

7. But the proceedings he took under Section 476 of the Cr PC, were based on an application made by Shamdeo during the trial of the case under S. 447, I.P.C It was on this application that immediately on the disposal of that case the Honorary Magistrate ordered notices to issue against the five persons tried by the Court of Session to show cause why a complaint should not be made against them in respect of offences arising out of the forgery and its user. Before the expiry of his powers as a Magistrate, Mr. Islam adjourned these preliminary proceedings on the request of the five persons, as they represented that the same matter was directly and substantially in issue in the appeal that Jageshwar and Jagdeo had preferred against their conviction. The appeal was disposed of and the record returned after the expiry of the magisterial powers of Mr. Islam, who however proceeded to complete the preliminary proceedings under Section 476 of the Cr PC, without any objections raised by the five accused as regards his authority. He complained against three persons only out of the five, and on an appeal by Shamdeo under Section 476-B of the Cr PC, the District Magistrate complained against the other two. The terms of this latter complaint distinctly indicate that the District Magistrate endorsed the complaint of Mr. Islam against the other three accused. The District Magistrate concluded:

The witnesses against them (Raghubar and Bikhari) will be the same as in the case against the other three persons already prosecuted over the same transaction. The present accused should also be proceeded with in the same case.

8. It was upon these two complaints that the Committing Magistrate proceeded against the five persons. The power, if it may be so-called, to make a complaint under S. 476, is not among the powers specified in Schs. 3 and 4, Code of Criminal Procedure, and is not a Magisterial power, for it can be exercised as well by Civil or Revenue Courts as by Criminal Courts. The object of S. 195 clearly is to avoid harassment at the instance of private parties who may be acting for reasons of their own rather than in the interests of the administration of justice, and the complaint required by the section merely bars the taking cognizance of offences in the ordinary way under S. 190(1). It cannot be said that this object was in any way defeated by the fact that at the time he made his complaint, Mr. Islam was not empowered to act as a Magistrate. He was not an officious intruder, but was merely completing the preliminary proceedings that he had begun before the expiry of his powers as a Magistrate and that he had adjourned at the request of the accused; and he was doing this at a time when it is not suggested on behalf of the appellants that there was in existence any Court which could be pointed out as the proper Court for completing the proceedings.

9. Had any objection been raised at that time on behalf of the accused, the matter would doubtless have been disposed of by the District Magistrate under S. 559(2). But in any event Mr. Islam's complaint against Jageshwar, Jagdeo and Jugal was definitely endorsed by the District Magistrate while exercising his powers under S. 476-B in respect of the other two accused. It seems to me that it is now too late under S. 537 of the Code for the appellants to ask for a reversal of their convictions on the ground “of any error, omission or irregularity in the complaint” required under Section 195 for the initiation of the proceedings against them, since the objection could and should have been raised at more than one earlier stage in the proceedings. As regards the charge under S. 120-B, I.P.C, I observe that this section was mentioned in Shamdeo's initial application to the Honorary Magistrate against all the five accused merely on the footing that they had conspired to forge the mortgage deed to support the false claim of Jageshwar and Jagdeo in the case under S. 447.

10. There never was any case of criminal conspiracy against these persons apart from the forgery and its user, and it is not suggested by the learned advocate for the appellants that any evidence was given on the charge of criminal conspiracy apart from what was given in respect of the other offences. The conspiracy was only inferable from the forgery and user, if proved, but would in that case come within the provisions of the Penal Code as regards abetment and would therefore not be punishable under S. 120-B at all.

11. The charge under this section against the accused was thus also entirely unnecessary. The formal addition of such a charge has plainly not affected the decision of the case on the merits, and it will therefore be sufficient to set aside the convictions of the appellants under this charge.

V.B/R.K

12. Appeal dismissed.