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Judgment
Miller, J.—I think the Magistrate was right in holding that the sanction of the Insolvency Commissioner is necessary. Taking it that all the
offences charged were complete when the claim was made before the Official Assignee, still at that time bath 1st and 2nd accused were parties to
the Insolvency proceedings in the High Court initiated by a petition of the complainants. The order of adjudication does not transfer the
proceedings from the Court to the Official Assignee.
So that even if it is necessary u/s 195(1)(c) of the Code of Criminal Procedure that the proceeding should have commenced before the offence
is complete, that requirement is fulfilled in this case. The offence of forgery is complete, it may be said, as soon as the false document is made and,
in that view, it cannot be right to restrict the scope of Section 195 of the Code of Criminal Procedure to cases in which the commencement of the
proceeding precedes the completion of the offence, for the section., in that case, would not apply to a great many cases to which it was obviously
intended to apply and which are covered by its language. As I understand the case, the view suggested on behalf of the petitioner is that, in order
that Section 195 of the Code of Criminal Procedure may apply, the proceeding must have commenced before any action has been taken or use
has been made of the false document. But even accepting that view, which receives some support from Noor Mahomad v. Kaikhosru 4 Bom.
L.R. 268 the Insolvency proceeding had been commenced before any action was taken on the documents alleged to be forged. It was suggested
by Dr. S. Swaminathan that, if the production of the document before the Official Assignee is taken to be their production in the proceeding'', then
the Official Assignee must be considered to be the Court, and his sanction and not that of the Insolvency Court is what is required. I do not think
so. The Official Assignee does not become a Civil Court merely because he has a wide discretion in deciding on claims of persons alleging
themselves to be creditors of the insolvent or because persons aggrieved by decisions of his, can appeal to the Court from those decisions, and the
provisions of the Insolvency Act do not suggest that he ought to be considered a Court subordinate to the ''Court'', which, by Sections 3 and 6 of
the Insolvency Act is the High Court or some officer appointed u/s 6 of the Insolvency Act.
The Insolvency proceeding from the date of the petition which initiates it is before the Court, and the Court controls and directs the actions of
the Official Assignee, and, I think, in these circumstances, that it is the Court whose sanction is required and not the Official Assignee. I do not say
that the Magistrate is wrong in his view that the production of the document before the Insolvency Commissioner is sufficient to attract to the case
the provisions of Section 195(1)(c) of the Code of Criminal Procedure. Bat, in my view, it is unnecessary to decide that point.
The petition is dismissed.