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TMI Blog1924 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... f the mokarrari properties mortgaged under the said deed consisting of about 26 villages. Together with the petition they filed three documents, (1) a Mokarrari Patta alleged to have been executed by Maharaja Sunder Singh on January 5th, 1811, in favour of Khirodhar Singh, ancestor of petitioners 25 to 36 and Deyali Singh ancestor of petitioners 1 to 24(1) a Usufructuary mortgage deed dated February 13th, 1833, alleged to have been executed by the sons of Khirodhar and Deyali in favour of Raja Modh Narain Singh, son of Raja Miterjit Singh, in respect of the same properties at an annual Jama of ₹ 1,900 in consideration of a loan of ₹ 5,000 sicca rupees, (3) a Darmokarrari patta of a 12 annas share of the same property, dated April 30th 1923, in favour of Mt. Nageswar Koer, petitioner No. 37, in consideration of a payment of ₹ 7,000, out of which ₹ 5,350, said to be the equivalent of ₹ 5,000 sicca rupees, was to be paid to the present holder of the 7 annas Tikari Estate in redemption of the mortgage of 1833, On the same date the petitioners asked that the documents they had filed might be returned to them and their request was granted. Notices were issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges against Rani Bhubneswari Koer, and there was likelihood of a serious breach of the peace which would not be allayed until the genuineness of the claim could be established. 9. No further progress was made in the case till September 29th, except that the petitioners put in certain documents to support the genuineness of the two documents in question. On September 29th, 1923, the Subordinate Judge recorded the order Heard Parties. The Criminal Procedure Code, Section 195 has now been amended. Under the amended section no sanction can be granted to a private party. Hence this proceeding cannot go on, and it is dropped. Then, considering a petition for the return of the documents, the Subordinate Judge remarked that it was the Vakil of the applicant for sanction who had suggested that under the amended Code the proceedings must be dropped and he was unwilling to proceed with the case then, wanting time. The Subordinate Judge refused to grant time and so the case was dropped. He thought, however, that as Section 476 had been amended it might be intended to make a fresh application under that section, or the Public Prosecutor might want to take steps, so he refused to return t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt when performing it. 13. Whether the proceeding before the Court under Section 83 is or is not a judicial proceeding need not be decided here; nor whether the Subordinate Judge was right in finding in June, 1923, that he could not proceed under Section 476, Cr. P. Code; under the amended section it is not essential that the proceeding in respect of which action is taken should be of a judicial character. 14. It is contended that under Section 83 of the Transfer of Property Act it is unnecessary to adduce any evidence oral or documentary; a mere petition on the part of a mortgagor, without any affidavit is sufficient, and the Court is not required to inquire whether the person filing the petition is in fact a mortgagor as he alleges; therefore the documents filed by the petitioners with their petition, were filed absolutely gratuitously and the Court was not called upon even to look at them. On this ground it is argued that the documents in question were not really before the Court, and cannot be treated as being used for the purpose of evidence. Seeing that there was no fact in issue in the proceeding under Section 83, there was nothing to which they could be held to be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys, an appeal now is incompetent. I do not consider that the action taken by the Public Prosecutor in moving the Sessions Judge was an appeal against the order dropping proceedings under Section 195. He may have called his petition an appeal; it was really an application that action should be taken in accordance with the change in the law, the change having rendered previous proceedings abortive and in such case the period of limitation need not be noticed so long as there was no unreasonable delay in taking action. 17. The next question that arises is the question of the section under which the Sessions Judge proceeded. In my mind his proceeding was covered by Section 476 A. That section permits a superior Court to take action similar to that described in Section 476 in any case in which the Subordinate Court has neither made a complaint under Section 476 in respect of the offence nor rejected an application for the making of such complaint. The present Sections 476, 476A and 476B have taken the place of the old Sections 195 and 476, and it is argued that Section 476A cannot apply to the present case because the Subordinate Judge did not grant the application for action under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, unless such well-known authorities as Hunter's Statistical Account of Bengal, the Fifth Report . Boddam's Account of Zamindars in Bengal , and other historians are mistaken in their dates, the two documents of 1811 and 1833 are on the face of them open to grave suspicion. 21. With regard to the other documents produced by the petitioners, Mr. Manohar Lal has pointed out that the learned Sessions Judge is mistaken in some of his remarks. The copy of the judgment in Case No. 26 of 1826 does in fact give the name of the Judge as Liladhar Pandit and of the Saristadar as Dost Muhammad. The certified copy of a decree gives 1811 and not 1810 as the date of the mokarrari deed. The learned Judge has evidently read the Urdu figures wrongly. The certified copy of an order in Execution case dated August 17th, 1866, bears a stamp dated 1867 and not 1861. The genuineness of these will be considered if the case comes to trial; it is unnecessary to discuss them here. 22. The last contention put forward on behalf of the petitioners is that the learned Sessions Judge has failed to consider the case of each of the petitioners and to decide whether complaint should be made again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whom the complaint is made under Section 476 is entitled to hold an inquiry under Section 202. Generally he will consider that the fact that the Court has made the complaint is sufficient to justify issue of process against the accused at once. But even if under Section 202 an inquiry is held, the persons complained against have no opportunity to show their innocence till after they have been summoned. 26. The learned Sessions Judge should have satisfied himself by inquiry that there was a prima facie case against each one of the petitioners before laying a complaint against any one of them. 27. In the present case there were 37 signatories to the petition under Section 83 it is extremely likely that some of them knew nothing about the petition or the documents. 28. On the ground that the cases of the individual petitioners have not been considered, it will be necessary to set aside the order passed by the learned Sessions Judge and to direct that further inquiry be made by him as to the complicity and knowledge of the individual petitioners. After such inquiry it will be open to the learned Sessions Judge to make a complaint under Section 476 against such of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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