T. and I.J. Suit No. 12 of 1934. Case: Bhagwandas Narandas Vs D.D. Patel and Co.. High Court of Bombay (India)
| Case Number | T. and I.J. Suit No. 12 of 1934 |
| Judges | Blackwell, J. |
| Issue | Criminal Procedure Code (Act V of 1898) - Section 476 |
| Citation | AIR 1940 Bom 131, 1940 (42) BomLR 231 |
| Judgement Date | October 08, 1939 |
| Court | High Court of Bombay (India) |
Judgment:
Blackwell, J.
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[After setting out facts, the judgment proceeded:] Section 476 (1) of the Criminal Procedure Code is as follows:-
When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, ' Sub-section (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate.
Provided that, where the Court making the; complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint,
For the purposes of this sub-Section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class.
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The former Section 476 was amended by Section 128 of the Code of Criminal Procedure (Amendment) Act, 1923. Several decisions based upon the former Section have been cited to me, but, as was pointed out by Crump J. in Bai Kasturbai v. Vanmalidas I.L.R. (1925) 49 Bom. 710: 27 Bom. L.R. 616, the effect of them is very materially affected by the amendment.
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Mr. Somjee, for the respondent, took a preliminary objection to my entertaining the application based upon a number of grounds. First, he submitted that a stranger to the testamentary proceedings out of which the application arises could not make the application. Section 476 as amended contains words which were not present in the former Section, namely, " whether on application made to it in this behalf or otherwise". I think therefore that it is open to the Court to entertain an application under Section 476 at the instance of a stranger to the proceedings out of which the application arises. It was held in Harekrishna Parida v. King-Emperor I.L.R. (1929) Pat. 736 that the Court may be moved by a person who was not a party to the proceedings out of which the.application arises. I respectfully agree with that decision. This point fails.
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Next it was contended that the application can be made only in the course of the proceedings out of which the application arises, or immediately after the conclusion of those proceedings. Mr. Somjee relied upon decisions to this effect in Begu Singh v. Emperor I.L.R. (1907) Cal. 551, and Aiyakannu Pillai v. Emperor I.L.R. (1908) Mad. 49. A different opinion was expressed in Lakskmidas Ldji, In re I.L.R. (1907) 32 Bom. 184: 10 Bom.L.R. 28 and by Miller J. in his dissenting judgment in Aiyakannu Pillai v. Emperor, and Begu Singh v. Emperor must be taken to have been over-ruled by Bahadur v. Eradatullah Matlick I.L.R. (1910) Cal. 642, In Bai Kasturbai v. Vanmalidas I.L.R. (1925) 49 Bom. 710: 27 Bom. L.R. 616 Crump J. considered Begu Singh v. Emperor and, after pointing out that it was over-ruled by Bahadur v. Eradatullah Mallick, he said (p. 714) " it is also obvious from a. reference to the Section itself as it stood and as it now stands that the main grounds on which the decision rests are no longer in...
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