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Allahabad High Court
Shabbir Hasan vs Emperor on 18 July, 1927
Equivalent citations: AIR 1928 All 21
Author: Dalal


Dalal, J.

1. It is not very clear why persons other than Shabbir Hasan have appealed to this Court. There is no complaint by the District Judge of Moradabad against any person other than Shabbir Hasan. Even if the learned Judge’s order of 15th December 1926 be considered to be a complaint, it is only a complaint against Shabbir Hasan. The case of no other person is considered in that order. At the end of the order the District Judge wrote:

The papers will be sent to the District Magistrate who will be asked to have the matter investigated by a competent police officer with a view to a criminal prosecution.

2. The criminal prosecution can only be of Shabbir Hasan, and not of all and sundry who may be discovered after the police inquiry to have been implicated in the forgery. In my opinion Mr. Radha Kishan was negligent in his duty in not taking action tinder Section 476, Criminal P. C, and passing on the trouble of an inquiry to the District Judge. Under Section 476 an inquiry has to be made by the civil Court. If the civil Court so desires, an inquiry may be ordered by the police, but in that case when the police papers arrive the civil Court has to determine whether it is necessary to take action against particular persons under Section 476. A finding has to be recorded to the effect against each individual person specifically. This is evident from the mention of the treatment of an accused person that the civil Court may either take security from him, or send him in custody to the Magistrate.

3. By his order, dated 14th April 1927, the District Judge directed the District Magistrate to treat his order of 15th December as a complaint under Section 195(1)(c), Criminal P.C. Obviously the District Judge paid no attention to the wording of the statute law which he quoted. Section 195(1)(c) refers only to an offence alleged to have been committed by a party to any proceeding. It appears that on the basis of that order Babu Raghunandan Kishor, Shabbir Hasan, Sirajuddin and Abdul Aziz are prosecuted when Sirajuddin alone is a party. In fact Section 195 has no application, and the learned Judge ought to have obeyed the directions of law contained in Section 476, Criminal P.C. If the learned Judge desired to take action against persons believed by him to be accomplices in the forgery, he ought to have made a proper inquiry himself or through the police, or through some Court subordinate to him, and, after considering the report of such inquiry, he ought to have recorded a finding separately in the case of every person that it was necessary in the interests of justice that inquiry should be made into a particular offence with respect to that person by a Magistrate. Obviously the District Judge has not taken any action under Section 476.

4. The position, however, is a curious one. Sirajuddin, of course, cannot be prosecuted without a specific complaint either of the Court of Babu Radha Kishan, or of a Court having jurisdiction superior to his. As 1 have held that there is no such complaint against Sirajuddin, I allow his application, and direct that all proceedings against him in the criminal Court be quashed, if the civil Court so desires, it can lodge a proper complaint against Sirajuddin, and this order shall not prevent the prosecution of Sirajuddin under a proper complaint made by any of the Courts indicated above.

5. There is no bar, however, to the prosecution of the other applicants under Section 195, Criminal P.C. If they are prosecuted by the district authorities, this Court cannot prevent any such prosecution. They have come to this Court on the specific ground that the order of the District Judge is irregular. I have held that the District Judge has passed no order as regards Babu Raghunandan Kishor and Abdul Aziz Khan. Their applications for revision must, therefore’ fail. If they have any other objection to the prosecution, they must take proceedings according to law.

6. As to Shabbir Hasan, the provisions of Section 195 do not prevent his prosecution either. But in his case the District Judge has taken action under S 476. As I have pointed out, the Judge has considered the case against him, and I take the order of 15th December 1926, to be a complaint under Section 476 against Shabbir Hasan.

7. In the result Sirajuddin’s appeal is accepted, and all proceedings against him quashed. The prosecution of Shabbir Hasan shall continue. As to Raghunandan Kishor and Abdul Aziz, they shall not be prosecuted by reason of any direction of the District Judge, but if the District Magistrate of Moradabad or any other Magistrate there having jurisdiction desires the prosecution of Raghunandan Kishor and Abdul Aziz, there is nothing in Section 195, Criminal P. C, to prevent such prosecution. If these men think that their prosecution is not justified, after I have declared that the District Judge has not taken proceedings against them under Section 476, Criminal P.C. they must approach this Court by another petition and on other grounds. This Court has no authority, in the present proceedings, to stay the prosecution of Raghunandan Kishor and Abdul Aziz if the District or other Magistrate (as mentioned above) on his own motion, desires, to proceed against them.

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