Ram Lal Tulsiyan vs Satyanarayan Banka and Others

K.K. Dutta, J.—This petition in revision arising out of an order in a proceeding u/s 476 of the Code of Criminal Procedure by which the prayer made by the present petitioner for lodging a complaint against the members of the opposite party was rejected and that order was subsequently confirmed on an appeal preferred by the present petitioner. It appears that the present opposite parties 1 and 2 were two of the defendants in a money suit namely Money Suit No. 74 of 1962 which was instituted in the Court of the Subordinate Judge, Muzaffarpur by the present petitioner. White hearing of the suit was going on in the Court of the Additional Subordinate Judge, Muzaffarpur to whom it had been transferred, some Bokar Bahis which were filed by opposite parties 1 and 2 were inspected by two of the lawyers of the plaintiff of the suit, that is, the present petitioner on 18th July, 1964, which was a Saturday. It is alleged that on the fol. lowing day, which was a Sunday, a servant of the plaintiff, namely, Gokul Prasad Dhanuka, found present opposite parties 1 and 3 talking with opposite party No. 4 who was the when Bench clerk of the Court of the Additional Subordinate Judge, in suspicious manner on the verandah of the Court room and be informed the plaintiff (i.e. the petitioner) about it and he then asked him to keep watch over the persons. Gokul Prasad it is alleged thereafter, found these persons handling some Bokar Bahia. The lawyers of the plaintiff were duly informed of this incident and on the following day i.e. on 20th July, 1964 on examining the Bokar Bahie again they found that some-blank apace which they had detested in course of the inspection on 18th July, 1964, as against an entry in the Bokar Bahi with respect to a sum of Rs. 500/- had been filled up. Thereafter the proceeding u/s 476 of the Code of Criminal Procedure, out of which the present revision has arisen was instituted on a petition by the present petitioner.

After considering the evidence adduced by the parties in the proceeding the trial court disbelieved the version of the petitioner regarding the alleged interpolation in the Bokar Bahi after inspection thereof on his July, 1964, and further held that it was not expedient in the interest of justice to lodge any prosecution and the prayer of the plain, tiff-petitioner was accordingly rejected. The appeal which was preferred against this order by the present petitioner was heard by the learned District Judge, Muzaffarpur and be also came lo the finding that the version of the plaintiff, that is the petitioner, that the opposite parties had made interpolation in the Rokar Bahi could not be accepted and as such it was not expedient in the interest of justice to take any action against them and the appeal was accordingly dismissed by him.

It was contended before me that both the trial and the appellate Court had gone beyond their jurisdiction in coming to a finding on merits as to whether there had been any interpolation in the Bokar Bahi, as what was necessary for them was to find out if any prima facie case had been made out about commission of such offence and if it wan expedient in the interest of justice that the prosecution should be lodged. An inquiry which is made by the Court u/s 476 of the Criminal P.C., is no doubt a preliminary inquiry and as provided in this section if an offence appears to have been committed in or in relation to a proceeding in a Court the Court may launch prosecution if it is of the opinion that it is expedient in the interest of justice to do so. In view of these provisions it is no doubt not obligatory upon a Court conducting such an inquiry to consider the entire evidence on merits for coming to a definite finding as to whether such an offence has been actually committed or not. Hence if a prosecution in such a casa is ordered to be launched by the Court without coming to any definite finding as to whether such an offence has been committed or not, the order pasted by the Court cannot to set aside if the Court was satisfied about a prima facie case having been made out and about the prosecution being expedient in the interest of justice. Some decisions were cited before me on behalf of the present petitioner in this connection and it appears that in all those cases the Court had directed prosecution to be launched alter being satisfied that a prima facie case had been made out and that it was expedient in the interest of justice that the prosecution should be lodged and it had been held that in these circumstances such an order could not be challenged merely on the ground that no detailed inquiry bail been made or that no definite finding bad been arrived at about the commission of the alleged offence.

The position in the present case is, how-ever, quite reverse and the Court has refused to launch a prosecution after examination of the entire evidence on merit as it was found that the allegation regarding interpolation had not been substantiated. Although in inquiry u/s 476 of the Criminal P.C., is a preliminary inquiry, there is nothing in the provisions of Section 476 of the Criminal P.C., to prevent the Court conducting such inquiry to come to its own finding, after considering all the evidence before it, as to whether the alleged offence has been committed or not, As the Court has to form an opinion as to whether it is expedient in the interest of justice whether the prosecution should be launched or not, the Court may find it necessary to consider and discuss the entire evidence for the purpose of coming to a finding whether the alleged offence was committed or not and may then devoid whether it would be expedient in the interest of justice to launch a prosecution. Hence if the Court conducting such an inquiry follows this course and actually comes to any finding after considering all the relevant evidence and materials placed before it as to whether the alleged offence bad been committed or not and then decide whether it would be expedient in the interest of justice to launch the prosecution or not such a course and the order passed after following such course cannot be said to be1 without jurisdiction.

Considering all the aspects I am quite unable to accept the contention that the two Courts below had acted beyond their jurisdiction in coming to a finding on the question as to whether interpolation had been taken place and as such there is no sufficient ground for interfering with the orders passed by them.

In the result this petition is dismissed.