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TMI Blog1949 (5) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... Hira Lal Fateh Chand = Mt. Jain Kuar | | ----------------------------------------- | | Channu Lal Mannu Lal Applicants. All the male members, excepting the applicants, and Mewa Ram shown in this pedigree died. Jhuman Lal, Sewa Ram and Hira Lal died without leaving any issues. 3. In the year 1936 Channu Lal and Mannu Lal, applicants before us, filed an application under Section 4, Encumbered Estates Act praying that the debts may be paid off and alleging that they alone formed a joint Hindu family. In due course this application was sent to the Special Judge where under Section 8, Encumbered Estates Act the applicants filed a written statement showing the debts due from them and the properties owned by them. 4. In the list of properties mentioned by them, a pronote of ₹ 8000 executed by one Panna Lal in favour of Fateh Chand Hira Lal, Fateh Chand being the father of the applicants and Hira Lal being the brother of Fateh Chand, was not shown. This pronote was dated 31st October 1927. On 4th March 1937 a creditor Shiva Dayal objected to the list of properties given by the applicants and stated that they had concealed the pronote of 31st October 1927. That pronote w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uar, taking advantage of the amendment of Section 11, Encumbered Estates Act, made an application before the Special Judge objecting to the pronote being shown as the exclusive property of the applicants. This application was made on 17th December 1941. In this application they alleged that the pronote belonged to the entire joint family which consisted of Mewa Ram, the husbands of Jain Kuar and Chandan Kuar and the two applicants. They also in the alternative suggested that Mewa Ram alone was entitled to the entire money as the loan was advanced out of his separate funds. This claim was admitted and then, after evidence was taken, dismissed by the Special Judge on 3rd May 1943. According to the Special Judge, the property in the pronote solely belonged to the two applicants before us and the story, that it belonged either to Mewa Ram exclusively or that it belonged to Mewa Ram, the two applicants, Jain Kuar and Chandan Kuar jointly, was rejected. There was an appeal against this order to the District Judge and he confirmed the order of the Special Judge on 19th January 1944. The matter then became final between the parties. The civil Court, therefore, finally declared that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Four points have been urged on their behalf by learned Counsel appearing for them. It is urged in the first place that the pronote in dispute did not form part of the assets of the applicants and was not necessary to be shown in the Encumbered Estates Act proceedings. This contention is absolutely without foundation. Section 8, Encumbered Estates Act clearly lays down that the landlord applicant shall file a written statement giving the nature and extent of the landlord's proprietary rights in land and the nature and extent of the landlord's property which is liable to attachment and sale under Section 60, Civil P.C., 1908, exclusive of his proprietary rights in land. The pronote in dispute was a debt due to the applicants and was liable to be attached and sold in execution of a decree under Section 60, Civil P.C. It was, therefore, necessary for the applicants to show it in their written statement. It was a property which was to be made available to the liquidation officer in order that he might liquidate the applicants' debt. 8. The next contention is that the complaint in this case could not be filed by the liquidation officer as a Court because the offence under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odged in respect of High Court Exs. 4 to 7 or any of them. In that case the Exs. 4 to 7 were alleged to have been forged by a party to a proceeding long before the proceeding had started. The Full Bench held that Clause (c) to Section 195 applied only to cases where an offence had been committed by a party as such to a proceeding in any Court in respect of a document which had been produced or given in evidence in such proceeding and in this view of the law the documents did not fall within the purview of Section 195 (1) (c). Mukerji J. expressed his view about Section 476, Criminal P.C., as quoted by us above in answer to an argument that Section 476 was not exhaustive. It is apparent that this observation was by way of an obiter dictum and was net strictly necessary for answering the question that was referred to the Full Bench. However, that may be, as the observation is contained in a Full Bench judgment we are prepared to consider ourselves bound by it. 12. Assuming, therefore, that a Court has no jurisdiction to make a complaint otherwise than as is provided in Section 476, Criminal P.C., the question is whether the liquidation officer, who made the complaint in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If a complaint is not a valid complaint, it does not cease to be an information and, therefore, can be treated as such under Clause (c) of Section 190 (1) and it is open to the Magistrate to whom an invalid complaint is lodged to treat it as an information under Section 190 (1) (c), Criminal P.C., subject, of course, to the limitations imposed by Section 191, Criminal P.C., in this behalf. 14. If the complaint lodged by the liquidation officer can be treated as a valid complaint by a public officer, as we think it can be, it was not necessary that the complainant should have been examined in person. Proviso (aa) to Section 200, Criminal P.C., makes it unnecessary for the Magistrate, when a complaint has been filed by a public servant acting or purporting to act in the discharge of his official duties, to examine such a public servant on oath. If, however, the complaint in the present case is to be treated as a complaint made not by a public servant but by a Court and therefore, invalid, then, in that case, as we have already observed, it is an in. formation within the meaning of Clause (c) of Section 190 (1), Criminal P.C. In such a case under Section 191, Criminal P.C., the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as information within the meaning of Section 190 (1) (c), Criminal P.C. 21. Learned Counsel appearing for the applicants has drawn attention to the following cases : Saldeo v. Emperor A.I.R. (14) 1927 All. 101, Lallu Singh v. Emperor A.I.R. (30) 1943 Oudh 226, Sar-faraz Khan v. Emperor 11 A.l.J. 331, Jhunna Lal v. King Emperor A.I.R. (4) 1917 Pat. 611, Mangu Koeri v. King Emperor A.I.R. (7) 1920 Pat. 670 and In Re: Marudai Pillai A.I.R. (32) 1945 Mad. 458. 22. In Saldeo v. Emperor A.I.R. (14) 1927 ALL. 101, Banerji J. had a case in which, previous to the making of a written complaint, the Magistrate happened to be in the village where the complainant resided and the complainant orally related the story of the offence to him. Whereupon the Magistrate inspected the locality, but thereafter a formal writ-ten complaint was lodged. It was held that the case was taken cognizance of only after the formal complaint had been filed, and the mere fact that previous to the making of the complaint the Magistrate had inspected the locality, would not bring the case within the purview of Clause (e) of Section 190 (1), Criminal P.C. There is nothing in this case which in any way, conflicts with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to file a complaint, still if such a complaint was received, the (second) Sub-Divisional Magistrate on receiving it could act under Section 190 (c) and take cognizance of the case and the action of the (second) Sub-Divisional Magistrate must be considered to have been taken under that section. If that be so, then under Section 191, it is; open to the accused to object to the case being tried by that Magistrate and ask for the case being tried by another Magistrate. The petitioners have been deprived of the exercise of such a right by reason of the failure. on the past of the Sub-Divisional Magistrate to inform the petitioners about it and ask them whether they wanted the case to be tried by another Magistrate. Thus it appears that the learned Judge accepted the proposition that the matter might fall under the purview of Section 190 (1) (c), though not under the purview of Section 190 (1) (a). This case also does, not support the contention of learned Counsel. 26. It is next urged that the learned Magistrate acted illegally in examining certain witnesses after the arguments were over and that, therefore, the trial was vitiated. 27. What happened in this case appears to be this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel is based upon an inaccurate appreciation of what happened on 30th January 1947. As we have already said, the argument were not closed on 30th January. It was during the arguments that the learned Magistrate thought that he should re-examine Hem Chandra Misra. That, however, does not dispose of the matter. The arguments had concluded on 31st January and 7th February had been fixed for judgment. It can, therefore, be urged on behalf of the applicants that at least after 31st January 1947 the arguments had been concluded and the trial was, therefore, at an end. The contention is based upon the distinction between a trial and a judgment. According to learned Counsel a judgment is no part of a trial. In this connection he refers to Sections 366 and 497 (4), Criminal P.C. Now these two sections, no doubt, lend colour to the argument advanced by learned Counsel. 30. In Bahshi Ram v. Emperor A.I.R. (25) 1938 ALL. 102 :, it was held that in the present Criminal Procedure Code a trial did not include a judgment and that the trial concluded before the judgment was pronounced. As pointed out by Iqbal Ahmad (as he then was) in that case, although in the Code of Criminal Procedure of 1872 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a date had been fixed for delivery of judgment, it was not proper for the Court to examine two witnesses, who were named by the prosecution under Section 540, Criminal P.C. It may be observed that in that case, it does not appear that any opportunity was given to the accused to explain the fresh evidence that was recorded or to give further evidence for defence as he liked. The learned Judges observed: Although the terms of Section 540 are very wide, the wider the power, the more cautious should be the exercise of discretion on the part of the Magistrate. We do not think that it was the intention of the learned Judges in that case to lay down, as a hard and fast rule, that in no circumstance, can a Court examine witnesses under Section 540, Criminal P.C. once the defence evidence had been closed and arguments had been heard. In our opinion, therefore, there is no force in this contention of the learned Counsel. 34. Learned Counsel has further urged that in any case the sentence was too severe and that a sentence of imprisonment was not called for. In our opinion, the sentence imposed by the Court below is not severe and we see no reason to interfere. 35. We dismiss this revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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