Janardhan Thakur v. Baldeo Prasad Singh Opposite Party.

Foster, J.:— The facts of this case are that after a purchase in auction sale in execution of a decree for rent find delivery of possession to the purchaser, the petitioner resisted, alleging raiyat-title, and propounded as the basis of this title a document called a taslimnama. The attention of the police was called to the dispute, and the inquiring officer reported to the Magistrate that there was a likelihood of a breach of the peace. In the course of his inquiry the party claiming the raiyati title, now the petitioner, produced the taslimnama. The police officer only filed the document with his report, and after rejecting it, asked for proceedings under Section 145 of the Cr PC. On the police report the Magistrate drew up a proceeding under Section 145 of the Cr PC. The police officer was examined in the hearing of the proceeding and he referred to the taslimnama but when the petitioner filed a petition withdrawing from the proceeding, and agreeing to an order in favour of the auction-purchaser, the Magistrate without referring to the taslimnama, recorded a finding that possession was with the auction-purchaser, and he gave relief under Section 145 of the Cr PC. Thereupon the auction purchaser, the opposite party in the present proceedings, moved the Magistrate to impound the taslimnama and to sanction the prosecution of the petitioner. The petitioner then resisted on the ground that sanction was not required, inasmuch as it was not he who had produced the document before the Magistrate. Thereupon the opposite party withdraw from the sanction proceedings, and filed a complaint directly under Ss. 463, 471, 475 and 476, I.P.C The petitioner then changed front and used that sanction was necessary. Process was however issued. Having failed to move the Sessions Judge, the petitioner has moved this Court to sat aside the order for issue of process, on the ground of lack of jurisdiction. A rule was issued.

2. No doubt the petitioner's conduct is open to criticizm, but the fact remains that this Court has to decide whether the law admits of his present prosecution. This is the question now to be considered.

3. The petitioner relies on the terms of Section 195 of the Cr PC. I quote the parts of that section which are apposite.

195(1)(c):

“No Court shall take cognizance of any offence described in S. 463, I.P.C, or punishable under Ss. 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, except with the previous sanction or on the complaint of such Court, or of some other Court to which such Court is subordinate.”

195(3):

“The provisions of sub-s. (1) with reference to the offence named therein apply also to the abetment of such offences and attempts to commit them.”

4. So the offence, in contemplation of the sanctioning Court, must be an offence that has been committed by a party (obviously this means an offence that is alleged to have been committed by a party); and the document which is the subject-matter of the offence must have been produced in a proceeding before a Court. The opposite party urges that the section does not limit his rights as private prosecutor. His contentions amount to this: there was no “production”, in the sense of the section; and even if there were the production did not affect the right of the opposite party to prosecute directly without sanction of Court.

5. In considering whether there was a production, in the sense of the Code, it is impossible to ignore the provisions of Section 145, sub-Section (4) of the Cr PC:

“The Magistrate shall then, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties receive the evidence produced by them respectively consider the effect of such evidence take such further evidence (if any) as he thinks necessary and if possible, decide whether any and which of the parties was at the date of the order before mentioned, in such possession of the said subject.”

6. So the evidence “produced” by the parties is to be received by the Magistrate, but he may take other evidence of his own motion. Clearly in respect of the evidence “produced” there is a bilateral transaction, a production by the parties and acceptance by the Court in the case of evidence used in the case but not produced by parties there is a unilateral action of the Court. It seems to me therefore to be a strain of ordinary language to say that a document which come into the Court, merely because it was attached to a police report prior to the proceeding, was “produced” in the proceeding.

7. But, assuming that it was “produced”, I do not see how the prosecution of a party who had no hand in its production is barred by the absence of the sanction of the Court. We have been taken through a number of authorities, but in every case the party was criminally implicated, directly or by abetment, in the production: Nalini Kanta Laha v. Anukul Chandra Laha(1), Teni Shah v. Bolahi Shah(2), Bhawani Das v. Emperor(3) and other cases.

8. In a case quoted by the opposite party we find data which expressly exclude the participation of the party in the production of the false document. The case is Debilal v. Dhajadhari Goshami(4). There the gravamen of the charge, for which sanction was held to be necessary was that the accused had set up a person who was their tool, to propound a false will in order to further their own designs; and they had come to Court in the guise of witnesses to support the document. They had therefore conceivably done some criminal acts before the document was produced in Court and given in evidence and in respect of those acts, apart from their conduct in Court, they could be prosecuted without sanction.

9. The legal principle is not far to seek. After the crime has been committed by a party, and the criminal matter carried into a proceeding in Court, two persons are aggrieved not only the opposite party but also the Magistrate, whose course of justice has been perverted or attempted to be perverted, by the production of the criminal matter in the proceeding. When once this has happened, it seems to be obvious that the Magistrate should control all litigation arising out of the acts in Court. For the Magistrate has two paramount interests in the eyes of the legislature: he must protect the administration of justice and he must prevent unnecessary prolongation of suits. The whole scheme of Section 195 of the Cr PC, seems to me to be based upon these principles. The Court is concerned, and is only concerned where there has been a voluntary obstruction or attempted obstruction of the course of just on in a proceeding before it. If a person complain of an offence that does not fall within these defined limits he is free from the requirement of sanction, for the simple reason that the Court is not aggrieved and has no concern.

10. In the present case the Court had no grievance against the petitioner. He neither produced the false document nor abetted its production. So in no way did he abuse the authority of the Court.

11. I therefore conclude (a) that the document was not “produced” in the sense of Section 145 of the Cr PC, (b) even if “produced,” the petitioner was no party to its production, (c) the petitioner did not in any way abuse the authority of the Court, and therefore the opposite party is the only aggrieved person, (d) it follows that the Court, having no concern with the matter, is not required to grant sanction for prosecution. In discussing these questions, I have, for argument's sake and because the legal principles could not otherwise be discussed, assumed that the taslimnama is a forged document. But the question whether it is forged must remain open. The Court which is now proceeding with this litigation must keep in mind that the words of S. 195(i)(c) “has been committed by a party” can only signify “is alleged to have been committed by a party” and attention must be paid to the terms of each heading of the charge.

12. I would discharge the rule issued by the Court, on the grounds stated above.

13. Sultan Ahmed, J.:— I agree.

V.S/R.K

14. Rule discharged.