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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 ..... Mt. Chandan Kuar | ---------------------------------- | | | Sewa Ram 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note. 5. It appears that Shiva Dayal got scent of these proceedings and so on 6th October 1941 he made an application to the liquidation officer praying that action be taken against the applicants under Section 422, Penal Code as they had dishonestly and fraudulently prevented the debt due under the pronote, from becoming available to the creditors. The liquidation officer issued notice to the present applicants. Meanwhile Mewa Ram, Jain Kuar and Chandan Kuar, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to various Courts and ultimately came back to the Court of the Sub-Divisional Magistrate now presided over by Mr. B. P. Sahi, Mr. Ashfaq Husain having been transferred in the meantime. The case was ultimately tried by Mr. B. P. Sahi who found the applicants guilty under Section 422, Penal Code, and sentenced them as stated above. The applicants appealed to the Sessions Judge and the appeal was also dismissed. They have now come up in revision to this Court. 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that a Court could file a complaint only under the provisions of Section 476, Criminal P.C., and that it had no inherent jurisdiction to file a complaint other, wise than in accordance with the provisions of that section. This observation is binding on us, although it may be stated that the question for decision in the Full Bench was whether Section 195 (1) (c) was applicable so as to render a complaint of a Court necessary before a prosecution for abetment of forgery could be lodged 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 observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint is a particular kind of information and is more or less formally made with the definite object that the person to whom the complaint is made will take action under the Criminal Procedure Code. Information is the genus of which a complaint is a specie. In Section 190 (1) (c), however, the word 'information' must be construed as referring to information which is not a valid complaint falling under Clause (a) of that section. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eless be entertained by the Magistrate under the provisions of Section 190 (1) (a), Criminal P.C. 19. In Emperor v. Rasool Ahmad A.I.R. (34) 1947 ALL. 173, a similar view was expressed. 20. In the case of Ambika Sahi v. King-Emperor A.I.R. (35) 1948 All. 80, although a complaint made by a Small Cause Court Judge was held to be defective, as it was found that the Judge had no jurisdiction to make it, yet it was held that the complaint could be treated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Magistrate. On that complaint notices were issued and the accused were tried. Relying; upon the observations of Mukerji J. in the Full Bench decision of this Court in Emperor v. Kushalpal Singh A.I.R. (18) 1931 ALL. 443, Kuppuswami Ayyar J. held that since the complaint was not covered by the provisions of Section 476, Criminal P.C., it was a bad complaint He further observed: It is urged, however, that even though the Sub-Divisional Magistrate had no jurisdiction 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Under this section the Court is empowered at any stage of any enquiry or trial to summon or examine or re-examine any witness 29. Now the contention of the learned Counsel is that the trial in this case had finished as, soon as the defence evidence was closed and the arguments were heard. According to him when on 30th January 1947 the learned Magistrate had heard the arguments, the trial had been closed. Now as a matter of fact the contention of the learned Counsel 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 conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same view was expressed in an old case of our Court : Empress of India v. Baloo Sahai 2 ALL. 263. That was, however, a case under the old Code in which trial was defined to include a judgment. 33. Learned Counsel for the applicants has Strongly relied upon the case of Natabar Ghose v. Adya Nath Biswas A.I.R. (10) 1923 Cal. 690. In this case C. C. Ghose and Chotzner, JJ. were of opinion that after both sides had closed their respective cases and after arguments had been heard and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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