Hariram Onkar v. Mt. Radha

1. This revision relates to a complaint made under S. 467, Penal Code, for the forgery of a document which purports to be the will of one Onkar. It is said to bear his thumb mark and purports to have been executed on 14th July 1941. The complaint was made to the Sub-divisional Magistrate at Harda on 9th August 1941 and, it is important to note that the complaint was a private one and not one made by a Court under Section 476 of the Cr PC. After this, on 12th September 1941, an application for probate was made in the Court of the District Judge, Hoshangabad. Probate was refused on the ground that the testator was not of sound disposing mind. On the question of execution the. Court held (1) that the will was executed by Onkar and (2) that it was “not prepared to hold that the will was forged.” These questions are still under consideration by the High Court. The appeal has not yet been heard.

2. I agree that these findings are not res judicata in a criminal case.

3. The rule does not apply to criminal proceedings though the underlying principle is applied in another way. An accused person can plead autrefois convict or autrefois acquit under Section 403 of the Cr PC. But no question of that arises here. The probate judgment is irrelevant. The proceedings in the trial Court were stayed during the pendency of the probate proceedings but as soon as they were concluded, the trying Magistrate decided to proceed with the trial. The accused made an a application to the Sessions Judge asking for a reference to the High Court with a view to quashing the trial. This the Sessions Judge (the same Judge who decided the probate) refused. Accordingly the accused has come up in revision. I was asked by counsel for the accused to keep this revision pending until the probate appeal in this Court has been decided. Counsel for the complainant objected strongly unless the accused was placed on terms, the terms being that he have the probate matter expedited. I did not think it proper to impose terms in a criminal case, so proceeded to hear the application.

4. The first point I have to determine is the nature of the present proceedings. If Section 195 of the Cr PC, applies, then it is for the Court to determine whether there should be a prosecution or not, because under that section the Court alone can make the complaint. In that event the opinion of the High Court on appeal would be relevant — not indeed because it is res-judicata but because Courts are not in the same position as private parties, and if one Judge, and particularly a High Court Judge, is, for example, of opinion that there is no forgery, very strong reasons would be required for a prosecution instituted by a Court of justice in the face of such an opinion. But if s. 195 does not apply, then this is an ordinary complaint and the opinion of the High Court, or any other Court, is irrelevant—the judgment in appeal would be inadmissible, and this, whether it is in favour of the accused or against him in that event, a stay would be improper.

5. All the High Courts are now agreed that once a forged document is brought into Court, then private complaints subsequent to this are barred by S. 195 even in respect of anterior forgeries — anterior that is to the litigation. The cases are collected at pages 660 and 661 of B.B Mitra's Code of Criminal Procedure, Edn. 10, and I need do no more than cite his book. But the question whether this applies to previously instituted complaints has not been as frequently considered. In 39 Mad. 6771: at p. 679 Ayling, J. said that it is necessary that the “proceeding in any Court” referred to in the clause should be actually instituted before the criminal Court is asked to take cognizance of the offence and added:

If it is not, there is nothing in S. 195 to prevent the Court from taking cognizance of the case and once the Court has lawfully taken cognizance of the case its jurisdiction is not affected by the subsequent coming into existence of a circumstance which would have barred its jurisdiction, if it had existed at the time of its institution.

6. And in 56 Cal. 10412 at p. 1047 it was said:

The main point is that the complainant is entitled, as of right, to have his case tried in respect of the charges previously made, and in regard to which cognizance has already been taken.

7. I respectfully agree. That being the case, no question of stay during the pendency of the probate appeal arises. The next question is whether I should quash the proceedings. I think the High Court's power to do so is undoubted but it would be very unusual to exercise it in circumstances like these just because some other Judge in some other judgment, which will be wholly irrelevant in the criminal proceedings, has expressed, or may at some future date express, an opinion this way or that. Proceedings are only quashed when no offence whatever is disclosed or when the prosecution is bound, on the face of it, to fail, or for some other cause equally powerful. They cannot be quashed before a complainant who has disclosed a prima facie case in his complaint has had an opportunity of placing the material on which he bases his complaint before the Court. The application fails and is dismissed.

8. Application dismissed.