Abdul Karim and Others vs Emperor

Wort, J.—This is an application in revision against a complaint which has been filed against the three applicants under Sections 193, 96, 200 and 120(b), I.P.C.

The substance of the case against them is that they were instrumental in adducing false evidence inasmuch as they were guilty of bringing into existence a report with regard to a service return. The first applicant is the peon of the Court at Manbhum and the other applicants signed their names on the return as witnesses. It is unnecessary to go into the history of the case; it is sufficient merely to state that, as result of this service return, certain parties who were plaintiffs in a suit obtained an ex parte decree. That ex parte decree was eventually set aside. There was a rehearing, and then, in the result, this complaint was made against the parties to this application.

I am asked by learned Counsel, who appears for the applicants, to quash the proceedings, because from the complaint itself which was made by the Sub-Divisional Officer there appears to be no case, at least against the two witnesses to the service return.

Before I deal with their case, I would like to make a statement with regard to the case against the peon, the first applicant. I could in no sense of the word express an opinion even as to the probable result of the prosecution of the peon. But it is quite clear that if the affidavit of the defendant in the suit is a true one, there was in fact a prima facie case against the peon.

The case so far as the witnesses are concerned is perhaps not so strong. I do not propose to go into the merits of the case against them but to deal with the argument which has been addressed to me on behalf of these applicants. It is stated that they were merely witnesses to the fact that the service was substituted service in the sense that the copy of the plaint was nailed to the house of the defendant. It is alleged that they were witnesses to that fact only. On the face of it that would appear to be so. But I am met with the following argument urging this Court to quash the proceeding against the applicants, under the provisions of Sub-section (5), Section 439, Criminal P.C.

Now at the stage before the complaint against the applicants was filed, two of the persons, who are not before the Court but who were implicated in the first instance in this prosecution, appealed to the Sessions Judge, and he came to the conclusion that there was no case against them, and therefore, they were discharged. It is quite clear that at that stage of the proceedings at any rate these applicants could also have appealed to the Sessions Judge. Undoubtedly if the case had reached that stage, Sub-section (5), Section 439, Cr. P.C. would have applied and this Court''s powers in revision would have thus been restricted. But it is argued by learned Counsel on behalf of the applicants that as this case had reached the stage at which the complaint was filed by the order of the Court, Sub-section (5), Section 439, had no application. In answer to that argument, however, it, is pointed out that Section 476 gives a right of appeal even at the stage at which this case had arrived, and undoubtedly by a plain reading of Section 476, these persons being persons against whom a complaint had been made had a right of appeal to a Court superior to that which made the complaint. That being, so, in my judgment, quite clearly, I see no way of escaping from the argument that Sub-section, 5, Section 439, does apply, arid therefore whatever might be said as to the case which might be made out against these persons the powers of this Court to quash the proceedings in revision are restricted. I have, in my judgment, no jurisdiction to quash the proceedings in these circumstances and, therefore, so far as that part of the application is concerned, it must be dismissed.

However, another point of considerable importance is raised and that is that the offence, if any, was committed and completed at Gaya, and therefore it is the Courts of the Gaya District which had jurisdiction in the case.

The learned Assistant Government Advocate points out, however, that these people are charged with conspiracy as a conspiracy is presumed to use as evidence at the Court at Manbhum, and if that were so undoubtedly the Court which has now seizin of this case would have jurisdiction to try it. But learned Counsel for the applicants advances the argument that the offence, if any, was complete at Gaya. In my judgment I think that that argument must prevail. It there was any conspiracy, it was quite obviously not a conspiracy to obtain an ex parte or any decree for that matter but a conspiracy to bring certain evidence into existence and when that evidence was once brought into existence in the form of a service return containing the signature of the peon and of the two witnesses, the offence would appear to have been complete. There is no doubt that the provisions of Section 179, do not apply in so far as the words "and of any consequence which has ensued" are concerned where the offence alleged is complete.

In my judgment; in this case the conspiracy was complete at Gaya, and therefore the Courts at Gaya have jurisdiction.

In the result the application is allowed in so far as the transfer of the case is concerned which must be transferred to the file of such Magistrate in the Gaya District as the District Magistrate directs.