Blackwell, J.
1. [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 suchpreliminary 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.
2. 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.
3. 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.
4. 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 force. The learned Judges relied on the words ' committed before it or brought under its notice in the course of a judicial proceeding' which are no longer to be found in the Section ' ; and he pointed to other amendments in the Section which affected the grounds of the decision. As regards the former Section I prefer the opinion expressed by the Judges in Lakshmidas Lalji, In re, and by Miller J. in his dissenting judgment in Aiyakannu Pillai v. Empevor. On the Section as it now stands it is, I think, clear that the application need not be made in the course of the proceedings out of which it arises, or immediately thereafter, and the difference of opinion upon the former Section is now immaterial. Whether the Court would accede to an application made long after the termination of the proceedings out of which it arises is a matter which would arise upon the merits and would no doubt depend upon all the circumstances.
5. Then it was contended that the applicant is not entitled to adduce evidence outside the record of the proceedings out of which the application arises to show that evidence given in those proceedings was false. In support of this contention certain observations of the Judges in In re Chatur Jethaji (1912) 34 Bom. L.R. 1247 were relied upon. They did not, however, say that the Court could look only to the record of the proceedings for the purpose of ascertaining whether the evidence was false. This was certainly not the opinion of the Judges in reference to the former Section in Lakshmidas Lalji, In re. In that case Chandavarkar J. said (p. 191) : 'An offence may be committed in the course of a trial before a Judge, and no one may know anything about it. It may be discovered long after the trial has ended ; the Judge or his successor may come to know of it in the course of some other trial or in some other way. No private party may think it worth his while then to apply for a sanction to prosecute ; and yet in the interests of public justice it may become necessary that there should be a prosecution.' These observations in my opinion apply with even greater force to the present Section, which contains the words which were not present in the former Section 'whether on application made to it in this behalf or otherwise.' In my view in deciding whether it is in the interests of justice that an enquiry should be made the Court is not confined to the record of the proceedings, but is entitled to take into account and consider information otherwise acquired.
6. Next it was contended that the judgment in the testamentary proceedings was a judgment in rem, which conclusively established the validity of the will and the title of the executors, and that no evidence could be adduced to show that the will was a forgery, except in a suit for revocation of the probate, and Section s 4 and 41 of the Indian Evidence Act and Section 273 of the Indian Succession Act were relied upon. As regards Section 44 of the Indian Evidence Act, which provides that any party to a suit or other proceeding may show that any judgment, order, or decree, which is relevant under Section s 40, 41, or 42, and which has been proved by the adverse party, was obtained by fraud, it was contended that Section 44 would apply only in a suit for revocation, and in the alternative that it does not apply to this application in which the judgment is admitted by the applicant in paragraph 19 of his affidavit, Section 44 being applicable only when the judgment has been proved by the adverse party.
7. The contention that Section 44 would apply only in a suit for revocation is in my opinion ill founded. The Section contains no limitation of the character suggested ; it enables any party to a suit or other proceeding to show that a decree proved by the adverse party against him was obtained by fraud. The Section would in my opinion apply in any proceeding, civil or criminal, if the decree sought to be challenged. is proved by the adverse party. ' No authority is needed for the proposition that a judgment in a probate suit is a judgment in rem. Of the cases cited upon this point I may mention Komollochun Dutt v. Nilruttun Mundle I.L.R. (1878) Cal. 360, Venkatasnbhamma v. Ramayya (1932) 32 M.L.J. 365, Hormusji Navroji v. Bai Dhanbaiji Jamsetji Dosabhai I.L.R. (1887) 12 Bom. 164, and Bal Gangadhar Tilak v. Sakwarbai I.L.R. (1902) 26 Bom. 792 : 4 Bom. L.R. 637 Mr. Somjee referred to Bater v. Bater [1906] P. 209, but it was pointed out by Maepherson J. in Sita Devi v. Gopal Saran AIR (1928) Pat. 375 that by reason of Section 44 of the Indian Evidence Act the law in India is different from that in England, and that in India the argument that a decree in rem even of a foreign Court cannot be contested at all, or can be contested only by the parties to the suit in Which it was pronounced, cannot be accepted, and further that in India a decree in rem which is relevant under Section 41 of the Indian Evidence Art can be contested on the ground of fraud or collusion which does not go to the jurisdiction of the Court. Apart from Section 44 of the Indian Evidence Act, it is well established that a stranger to a suit in which a decree in rent has been passed may impeach that decree for fraud and have it set aside if the fraud be proved ; see the judgment of Latham J. in Ahmedbhoy Hubibhoy v. Vulleebhoy Cassumbhoy I.L.R. (1882) 6 Bom. 703, where the question is fully discussed. It is also clear that having regard to Section 44 of the Indian Evidence Act it is not necessary for the party against whom a judgment is set up to bring a separate suit to have it set aside, but that he may show in the suit or proceeding in which it is set up against him that it was obtained by fraud ; see Bansi Lal v. Dhapo I.L.R. (1902) All. 242 and Rajib Panda v. Lakhan Sendh Mahapaira I.L.R. (1889) Cal. 11, in which the judgment of Ban-erjee J. is very instructive. It has been urged that this is an application in the very suit in which the probate decree was obtained, and that Section 44 applies only where the decree is set up in a separate suit or proceeding, and counsel referred to Biswa Nath Prosad Mahata v. Bhagwandin Pandey (1911) Cri.L.J. 648, where it was held that an execution proceeding is a continuation of the suit, and Section 44 does not apply. In my opinion, although instituted in the testamentary suit in which the decree was passed, this is an independent proceeding brought by a stranger to the suit, but I think that as the applicant in the affidavit upon which the application is based admits the decree and there is no question of the decree being proved against him by the adverse party, Section 44 does not apply to this application. Mr. Desai, however, for the applicant said that he did not upon this application seek to challenge the validity of the decree or the title of the executors, but that while admitting both he sought to show that in procuring the decree and his title as executor the respondent had been guilty of the offences set out in the schedule to the rule. He submitted that he was entitled to adduce evidence for this purpose. I will return to this argument later,
8. Mr. Somjec next submitted that no evidence would be admissible in a criminal Court to establish the alleged offences so long as the probate of the will was unrevoked, and that if this be so, it would be futile for the Court to admit such evidence on this application even if it is admissible, and the Court should decline to do so, and he relied upon Manjanali Debi v. Empress 4 C.W.N. 176, (Notes of Cases) and Kanullah v. The Emperor 12 C.W.N 1. Section 44 of the Indian Evidence Act was not referred to in Manjanali Debi v. Empress, and Buttery's Case (1818) R. & R. Cri. C. 342, hereafter discussed, was not cited. With respect Manjwiali Debi v. Empress was in my opinion wrongly decided. In Kanullah v. Emperor the point decided was that the criminal Court should have stayed its hand when the decree of the Munsif, upon which he had moved under Section 476, was reversed, as that order was no longer justified. Mr. Somjee also referred to the notes on Section 41 of Woodroffe and Ameer Ali's Law of Evidence, 9th Ed., at p. 419, where it is said that while in English law a judgment in rem is strong prima facie evidence in a criminal case on behalf of the person in whose favour such judgment was given yet ' under this Act such a, judgment will be conclusive in a criminal, equally and to the same; extent as in a civil proceeding ' ; he referred also to Sarkar on Evidence, 5th Ed., p. 384, where it is said that ' a judgment in rem under this Section ' (i.e., Section 41) 'will be conclusive in a criminal as well as in a civil proceeding'. The learned authors of these works do not, however, in these passages refer to Section 44. I see no ground for drawing any distinction between civil or criminal proceedings as to the applicability of Section 44, which permits ' any party to a suit or other proceeding ' to prove that a judgment proved by the adverse party was obtained by fraud. If therefore a criminal enquiry should be directed and a complaint made, I think that Section 44 would apply if the probate decree were relied upon by the accused.
9. In R. v. Buttery, above mentioned, nine Judges considered the objection taken for the prisoners that the probate unrevoked was conclusive evidence of the validity of the will, and overruled it, and held that the conviction for forging the will was right. The ruling to the contrary by King C.J. in the earlier case of Rex v. Vincent (1721) 1 Str. 481 cannot now be treated as good law. Mr. Somjee objected that in the year 1818 when R. v. Buttery was decided the probate affected personalty only and not realty, and that no regard should be paid in India to the ruling in that case where no distinction has ever been made as in England between real and personal estate. But in England since the passing of the Land Transfer Act of 1897 probate is conclusive as to both real and personal property, and the principle in R. v. Buttery is considered as good law in England today ; See Williams on Executors, 12th Edn. p. 386, Halsbury's Laws of England, Second Edition, Vol. IX, p. 592, Section 991 f. n. (a), Roscoe's Criminal Evidence, 1921 Edn., p. 660, citing Priestmtm v. Thomas (1884) 9 P. D. 210, where Cotton L.J. expressed the opinion that although the Chancery Division had no jurisdiction to revoke the probate of a will, it had full jurisdiction to decide that it was a forgery, and Archbold's Criminal Pleading, Evidence and Practice, 30th Edn., p. 818. The question is discussed in Vol. II of Smith's Leading Cases, and at page 693 the learned authors say :
In R. v. Buttery (1818) R. & R. C. C. 342 a probate was held not to be conclusive evidence that the party obtaining it had not forged the will, which may at first sight seen inconsistent). with the doctrine in Noell v. Wells (1668) 1 Lev. 235, viz., that the party in a civil action cannot avoid the probate by showing the will to be forged. But, on consideration, the cases appear to be consistent; for, in the civil suit, the evidence is offered for the purpose of showing that the party who obtained probate did not thereby become executor, which character the special Court has adjudged him to possess; but, in the criminal case, the party offering the evidence admits the probate to be valid till repealed, admits the prisoner to have thereby become executor, but merely seeks to show what means he used in order to become so, which is no more than if he sought to prove that in the affidavit in which the prisoner verified the scripts he had committed perjury.
10. In my opinion the principle of R. v. Buttery is applicable in India' in a criminal case in which the party offering the evidence of forgery admits the probate to be valid till repealed, and admits the title of the executor, but seeks to show what means he used in order to become so. Having regard to Section 44 of the Indian Evidence Act I think that it would be equally open to the party offering the evidence of forgery to prove that the probate decree was obtained by fraud, if it were set up against him by the accused, instead of admitting the probate and the title of the executor. As regards the present application under Section 476, although Section 44 of the Indian Evidence Act does not apply, I think that evidence of forgery is admissible in the same manner as it would be admissible in a criminal case, the applicant admitting the validity of the probate decree and the title of the executors.
11. All the points taken by way of preliminary objection in my opinion fail. I therefore proceed to hear the application upon the merits.
12. [His Lordship then proceeded to hear the application upon the merits, and dismissed it with costs, observing as follows :]
Mr. Desai submits that I should make no order as to costs. He argues that Section 476 falls under Chapter XXXV of the Criminal Procedure Code, and that there is1 no provision made in any part of that Chapter for costs. He referred me to Emperor v. Behari Lal : AIR1928All588 , and though in that case it was held on the particular facts that the Munsiff had no jurisdiction to award costs,' it was pointed out in the judgment that in proceedings under Section 476 the Court acts as a civil Court, and that the civil Court would have jurisdiction to award costs to one or the other party where the parties were the same as those in the civil litigation. I am clearly of opinion that an application under Section 476 being in the nature of a civil application the Court has full jurisdiction to award costs.