Sen, J.
1. These two Revisional applications are directed against an order passed by the Chief Presidency Magistrate, Sri Bijayesh Mukherji issuing process under Sections 467/109 and 471 read with Section 467 of the Indian Penal Code against the petitioners S.M. Basil and P.N. Talukdar. Revision Case No. 681 of 1959 has been filed by S.M. Basu and Revision Case No. 1049 of 1959 has been filed by P.N. Talukdar.
2. The petition of Complaint by the present complainant Saroj Ranjan Sarkar who is the youngest brother of the late Nalini Ranjan Sarkar, was filed on 3-4-59. But before the present complaint filed by Saroj Ranjan Sarkar, a previous complaint on the same facts was filed by Promode Ranjan Sarkar, second brother of the late Nalini Ranjan Sarkar. That complaint was filed on 17-3-54 and was dismissed under Section 203 of the Code of Criminal Procedure by the then Chief Presidency Magistrate Sri N.C. Chakravarti on 6-8-54. Thereafter, a Revisional application (Revision Case No. 1059 of 1954) was filed by Promode Ranjan Sarkar; but this Revisional application was dismissed or 8-7-55 by Debabrata Mookerjee, J. Then the complainant Promode Ranjan Sarkar applied for a certificate of fitness for appeal under Article 134(1)(c) of the Constitution; but such certificate was refused by a Bench of this Court on 1-9-55. Then the complainant applied for special leave from the Supreme Court and obtained such leave on 13-2-56, but ultimately the complainant Promode Ranjan Sarkar did not proceed with the appeal before the Supreme Court and withdrew it! by filing a petition on 12-3-59. The present complaint of Saroj Ranjan Sarkar, the youngest brother of Promode. Ranjan Sarkar, was filed on 3-4-59, i.e., about 22 days after his elder brother Pro-mode Ranjan Sarkar had withdrawn from the appeal before the Supreme Court.
3. The facts alleged by the complainant are briefly as follows:-
P.N. Talukdar was a paid employee of the Hindusthan Co-operative Insurance Society Ltd. upto the end of July, 1953. He was also a Director of the N.R. Sarkar and Co. Ltd. N.R. Sarkar and Co. Ltd. was the Managing Agent of several public limited companies, e.g., Hindusthan Development Corporation Ltd., Hindusthan Heavy Chemicals Ltd. and Hindusthan Pilkington Glass Works Limited. Nalini Ranjan Sajkar during his life-time was the Governing Director of N.R. Sarkar and Co. Ltd. On 4th January, 1948, he obtained leave from the Directors of the company for a period of one year with a view to joining the cabinet o the West Bengal Government as Finance Minister and he assumed office as Finance Minister on the 23rd January, 1948. This leave was subsequently extended. Nalini Ranjan Sarkar was the owner of 4649 shares of N.R. Sarkar and Co. Ltd., and 299 shares of that company were held by P.N. Talukdar; 50 by Promode Ranjan Sarkar; Santi Ranjan Sarkar, son of a deceased brother of Nalini Ranjan Sarkar held one share and one sliare had been assigned to Dr. P. C. Roy and was held by him. Thus Nalini Ranjan Sarkar was the owner of the overwhelming proportion of shares and he was the Managing Director and for all practical purposes he was the owner of the company N.R. Sarkar and Co. Ltd., and controlled its affairs. On 31st July, 1951, Nalini Ranjan Sarkar executed a deed of trust in, respect of 3649 shares out of the shares held by him in N.R. Sarkar and Co. Ltd. and in respect of certain other shares with which we are not Concerned. By the Trust Deed he appointed Promode Ranjan Sarkar, P.N. Talukdar and Dr. N.N. Law as the Trustees, and the beneficiaries under the Trust deed were the four brothers of Nalini Ranjan Sarkar, namely, Promode Ranjan Sarkar, Pabitra Ranjan Sarkar, Prafulla Ranjan Sarkar and Saroj Ranjan Sarkar, and the son of a deceased brother, Santi Ranjan Sarkar. The balance of one thousand shares in N.R. Sarkar and Co. Ltd. was kept in deposit with P.N. Talukdar; and according to the complainant's case, that last was also held by him for the benefit of the complainant and his brothers. Nalini Ranjan Sarkar died on 25th January, 1953. A few days after his funeral ceremony had been performed, it is said, S.M. Basu informed the complainant about the existence of an unregistered agreement by which late Nalini Ranjan Sarkar had appointed P.N. Talukdar as the governing Director of N.R. Sarkar and Co. Ltd., for a term of seven years, and a transfer 3eed by which the late Nalini Ranjan Sarkar had purported to transfer absolutely one thousand shares of N.R. Sarkar and Co. Ltd., to P.N. Talukdar. At that time the complainant and his brothers did not give any credence to the statement of S.M. Basu; but on the 31st July, 1953. i.e., about six months after the death of Nalini Ranjan Sarkar, P.N. Talukdar resigned from his salaried post under the Hindusthan Co-operative Insurance Society Ltd. and sought to assume control of N.R. Sarkar and Co. Ltd. as the Managing Director, although, according to the complainant, previously he had all along been describing himself merely as a Director and he had never claimed to be the Manaing Director of N.R. Sarkar and Co. Ltd. and had not also drawn any salary as such. Shortly thereafter, Promode Ranjan Sarkar started correspondence with N.R. Sarkar and Co. Ltd. asking for an inspection of the disputed documents. On 22-9-53, there was a meeting of the Board of Directors'of the N.R. Sarkar and Co. Ltd. and at that meeting Promode Ranjan Sarkar was pre-sent, and in spite of his objection, a resolution was adopted By which the term of the office of P.N. Talukdar as Managing Director of N.R. Sarkaj and Co. Ltd. was renewed for another term of seven years with effect from 19th January, 1955, i.e., after the expiry of the term of seven years from the alleged original agreement dated 19th January, 1948. Thereafter, Promode Ranjan Sarkar started demanding an inspection of the documents morevehemently, and inspection was allowed to him .ultimately in presence of the lawyers of both the parties on 13-10-53, at which photostat copies of the disputed agreement bearing the date 19th January, 1948., and the deed of transfer dated 5th February, 1951, were taken, and the Minute Book of N.R. Sarkar and Co. Ltd. was inspected, although Promode Ranjan Sarkar and his lawyer were prevented at that time from taking a photostat copy of any page of the Minute Book. Thereafter, as already stated, Prornode Ranjan Sarkar filed his complaint on 17-3-54 which was ultimately dismissed. The allegation of the present complainant Saroj Ranjan Sarkar is more or less identical with the allegation of Promode Ranjan Sarkar in his petition of complaint, namely, that the accused petitioners along with two other persons named in the petition of complaint, namely, Dr. N.N. Law and Amiya Chakravarti and other person or persons unknown, entered into a conspiracy to fabricate a deed of agreement, a deed of transfer and proceedings in the Minute Book of N.R. Sarkar and Co. Ltd. in order to assume complete Control over N.R. Sarkar and Co. Ltd. In the petition if complaint filed by the present complainant Saroj Ranjan Sarkar, the circumstances tending to show that these documents were fabricated, were detailed as in the previous petition of Complaint by his brother Promode Ranjan Sarkar; and in paragraph 18, an additional circumstance was mentioned, namely, that the minutes of the alleged proceeding of the meeting of the Board of Directors stated to have been held on 16-1-48 were typed on a sheet of paper bearing the letter-head N.R. Sarkar and Co. Ltd., with telephone No. City 6091 printed thereon; but the City Exchange did not come into existence until December, 1948 and the telephone connection with the No. City 6091 was obtained for the first time by the Hindusthan Co-operative Insurance Society Ltd., on or about the 18th March, 1949; and that, therefore, the paper with the letter-head N.R. Sarkar and Co. Ltd. with the telephone No. City 6091 printed thereon could not have been in existence at the alleged date of the proceeding of the Board of Directors, namely 16-1-48.
4. The learned Chief Presidency Magistrate, Sri Bijayesh Mukherjee, after taking cognizance of the complaint, reserved his order and called for certain papers, some of which were produced before him by the present complainant and some of which had to be called for from the High Court where the papers had been kept after having been received in the High Court in connection with the previous Revisional application filed by Promode Ranjan 'Sarkar. After consideration of the papers and hearing the learned pleader for the complainant, the learned Chief Presidency Magistrate decided that in spite of the dismissal of the previous complaint by the then Chief Presidency Magistrate, Mr. Chakravarti, and in spite of the order of aBench of this High Court refusing to interfere with the order of Mr. Chakravarti in revision, it was open to him to issue process on being satisfied that there was a prima facie case against the petitioners; and in that connection the learned Magistrate mentioned, among other things, the fact that there was fresh evidence before him which was not considered in connection with the previous petition of complaint. At the same time, the learned Magistrate also differed from the finding of the previous Chief Presidency Magistrate that the signatures reading 'N.R. Sarkar' on the proceedings of the Board of Directors dated 16-1-48 and on the deed of agreement dated 19-1-48 were genuine. Out of the four accused against whom complaint had been made, the learned Chief Presidency Magistrate pointed out that there was no case against accused No. 3 Dr. N.N. Law and accused No. 4 Amiya Chakravarti; and he considered that there was a prima facie Case under Sections 467/109 and 471 of the Indian Penal Code against accused No. 1 P.N. Talukdar and accused No. 2 S.M. Basu. So he issued process against them, This order was passed on 7-5-59.
5. Thereafter, as stated before, S.M. Basu filed the Revisional application which has been numbered as Revision Case No. 681/1959, and P.N. Talukdar filed the Revisional application which has been numbered as Revision case 1049/59. The Cases were first allotted to a Division Bench consisting of P.B. Mookerjee and H.K. Bose, JJ. After hearing both sides the learned Judges decided that as several important points of law were involved in the cases, including the question whether the decisions of two Division Benches of this Court, namely, Nilratan Sen v. Jogesh Chundra Bhuttacharjee ILR 23 Cal 983 and Komal Chandra Pal v. Gour Chand Adhikary ILR 24 Cal 286 had bee' superseded by the Full Bench decisions of this Court in Dwarka Nath Mondul v. Beni Madhab Banerji ILR 28 CaL 652 and Mir Ahwad Hussain v. Mohammad Askari ILR 29 Cal 726, it was desirable that the matter should go to a larger Bench. This order was made on 18th March, 1960. Thereafter, the learned Chief Justice allotted the cases to this larger Bench for disposal on merits.
6. The first point urged before us rebates to the competence of this Bench to decide the matter. It has been urged before us that under the rules of the High Court, Appellate Side, it was not competent on the part of a Division Bench consistisg of two Judges dealing with Criminal matters, to refer any matter to a larger Bench for decision. In this connection our attention has been drawn to the Rules 1 and 9 of Chapter II of the Appellate Side Rules. Rule 1 deals with civil matters. proviso (ii) to Rule 1 is as follows:-
'Provided also that, on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a special Division Bench, to consist of three or more Judges, for the hearing of any particular appeal, or any particular question of law arising in an appeal, or of any other matter.'
Rule 9 which relates to criminal matters, does not contain any corresponding provision. Sub-rule (1) of Rule 9 is as follows:
'A Division Bench for the hearing of cases on appeal reference, or revision In respect of thesentence or order of any Criminal Court shall consist of two or more Judges.'
It has, therefore, been argued before us that when the Chief Justice allotted these Revision Cases to a Bench consisting of two Judges, they were in seisin of the cases, and it was their duty to disposeof the matter finally, and if they differed they should have stated the point on which they differed and then the matter would be referred to a third Judge under the provision of S, 429 of the Code of Criminal Procedure; but the Bench had no power, whether or not formally differing from one another,to recommend that the matter should be referred to a larger Bench.
7. Now, it is true, in Rule 9 of the Appellate Side Rules, Chapter II, there is no express provision corresponding to the proviso (ii) to Rule 1 which relates to Civil matters. But this does not, in our opinion, take away the inherent power of the earned Chief Justice to refer any matter to a Bench of three Judges when the matter is of some importance. As already pointed out, Sub-Rule (1) of Rule 9 provides that a Criminal Bench may Consist of 2 or more Judges. Ordinarily, a Bench consists of 2 Judges excepting in matters which can be disposed of by a single Judge. A criminal matter would be referred to a larger Bench consisting of three or more Judges only when the matter is of considerable importance. The Chief Justice may, on his own initiative, allot such an important matter to a Bench of three Judges, or his attention may be drawn to the fact that the matter is of some importance and then he may exercise his discretion and refer the matter to a larger Bench. In the present case, the attention of the learned Chief Justice was drawn to the fact that the matter was of some importance, by the Bench of two Judges to which the Cases, had been referred in the first instance. There was nothing illegal in drawing the attention of the learned Chief Justice to the fact that the cases involved matter of importance and Recommending that the cases should be referred to a larger Bench. Thereafter, the learned Chief Justice acted in the exercise of his inherent Jurisdiction and referred the cases to a larger Bench, namely, this Bench, and we do not think that there was any illegality in such reference and, therefore, there can be no question as to our competence to deal with the matters.
8. It may be further pointed out that P.B. Mookerjee, J. in Course of his judgment observed that if it was to be decided that ILR 23 Cal. 983 and ILR 24 Cal. 286 were not good law, it might be necessary to constitute a Full Bench for finally settling the point, and he used that argument in support of his referring the matter to a larger Bench. Chapter VII of the Appellate Side Rules deals with references to a Full Bench. Under Rule 1 of Chapter VII, whenever one Division Bench shall differ from any other Division Bench, the case has to be referred for decision by a Full Bench. Although strictly speaking, this was not a reference to a Full Bench, the principle involved was referred to by P.B. Mookerjee, J., and in view of that principle also this reference must be held to be justified.
9. Next we proceed to deal with the points urged by Mr. K.M. Munshi in connection with the Revision case No. 1049/1959 filed by P.N.Talukdar. The first point urged by him is that the Chief Presidency Magistrate had no jurisdiction to take cognizance of the complaint in the absence of sanction under Section 196A of the Code of Criminal Procedure, because the petition of complaint discloses an offence of criminal conspiracy in relation to a non-cognizable offence and therefore, cognizance could not be taken in the absence of sanction by the State Government or by the Chief Presidency Magistrate himself.
10. It should be pointed out, however, that the learned Chief Presidency Magistrate did not take cognizance of the offence of criminal conspiracy to commit forgery, which would be punishable under Section 120B/467 of the Indian Penal Code, but of the offence of abetment of forgery, under Section 467/109 of the Indian Penal Code. For taking cognizance of the offence of abetment, even if it is abetment by conspiracy, no sanction under Section 196A of the Cr. P. C. is required. Mr. Munshi has referred to the fact that the sections relating to conspiracy, namely, 120A and 120B of the Indian Penal Code and Section 196A of the Cr. P.C., were introduced by amendment of these Acts in 1913; and it has been urged that since the amendment of these Acts in 1913, even for abetment by criminal conspiracy, that is, where the abetment comes within the second clause of the definition in Section 107 of the Indian Penal Code, a previous sanction is necessary. As to this point, however, we would say that the terms of the various sections have to be interpreted as they are. There is nothing in Section 196A of the Cr. P. C. to indicate that the offence of abetment by conspiracy also requires such a previous sanction. Only where there is a charge of conspiracy pure and simple, whether to commit any non-cognizable offence or commit any illegal act, such previous sanction is necessary. In our opinion, therefore, no such previous sanction under Section 196A of the Cr. P. C. could be necessary for taking cognizance of offence of abetment of forgery. In this connection, we may refer to the Case of Abdul Salim v. King Emperor, 26 Cal. WN 680 : AIR 1932 Cal 107. where it was held as follows:
'Section 196-A of the Criminal Procedure Coda only renders sanction necessary when the prosecution is for criminal conspiracy punishable under Section 120-B of the Indian Penal Code. It does not alter the former law that a prosecution for abetment by way of conspiracy punishable under Section 109 of the Indian Penal Code requires no sanction.'
This was a Division Bench decision of this Court and we respectfully agree with the decision. Reference has been made to a Supreme Court decision, Basir-ul-Huq v. State of West Bengal, : 1953CriLJ1232 where it was held that provisions of Section 196 of the Cr. P. C. cannot be evaded by resorting to any device or camouflage; the test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. The question before their Lordships in that case was whether a complaint for an offence under Section 297 of the Indian Penal Code for trespassing on a burial place or place of worship and under Section 500 of I. P. C. for defamation could be enter-tained without any complaint from a Magistrate in respect of the offence under Section 182 of the Indian Penal Code. In that case the facts briefly were that when one Dhirendra Nath was performing cremation of his mother and the funeral pyre was aflame, one Nurul Huda along with other persons accompanied by a Sub-inspector of Police arrived at the cremation ground, a complaint having been made that the mother had been killed by throttling her. The police, however, ultimately submitted a final report; and thereafter Dhirendra Nath brought a case under Section 297 of the Indian Penal Code for trespassing on a Cremation ground and under Section 500 of the Indian Penal Code for defamation for bringing a false charge against him. The defence was taken that in view of the fact that the original complaint against Dhirendra Nath had failed, but there had been no complaint from the Court in respect of the offence under Section 182 or 211 of the Indian Penal Code, the prosecution for the offence under Sections 297 or 500 of the Indian Penal Code could not proceed. Their Lordships pointed out that offence under Section 297 of the Indian Penal Code was quite independent from the offence of bringing a false charge, and that there is nothing in Section 195 of the Cr. P. C. which could prevent entertaining of such a complaint. At the same time, however, their Lordships made an observation that if the primary offence were an offence of which the Court could not take cognizance without a complaint from the Court or the public servant concerned, the complaint ought not to be entertained, because that would amount to allowing evasion of Section 195 of the Cr. P. C. On the analogy of that case the consideration before us would be whether the criminal conspiracy or the abetment of forgery is the primary offence. In the case of State of Bihar v. Srilal Kejriwal, : AIR1960Pat459 , it was observed as follows at page 468:
'Where the matter has gone beyond such a mere conspiracy and offences are alleged to have been actually committed in pursuance thereof, Section 120A and 120B are wholly irrelevant.'
In support of their decision their Lordships of the Patna High Court relied on certain decisions of the Madras High Court. Mr. Munshi has criticised this dictum of the Patna High Court as going too far. We may agree that the offence of criminal conspiracy would not become wholly irrelevant, because if there was an original agreement to commit an offence and the offence was ultimately committed, there would be the existence of the offence of criminal conspiracy as well as abetment of the offence which was Committed in pursuance of the conspiracy; but still it is clear that where the offence has been actually committed it would be more appropriate to proceed for the trial of the principal offence and abetment thereof rather than with the offence of criminal conspiracy. Therefore, even if the charge of criminal conspiracy does not become irrelevant, as held by their Lordships of the Patna High Court, we would hold that at least the charge of criminal conspiracy could not be regarded as the primary charge where offence in pursuance of the conspiracy has been committed. In this connection we may also refer io the case of Harsh Nath Chat-terjee v. Emperor ILR 42 Cal 1153: AIR 1915 Cal 719; atp. 1168:AIR atp. 724, of this decision it was observed as follows:
'Perhaps strictly speaking in the former case (when the offence has been committed in pursuance of the criminal conspiracy) there should not be a conviction for conspiracy but for the abetment of the offence, for the conspiracy followed by an act done to carry out the purpose of the conspiracy amounts to abetment.'
In Yawar Bakhat v. Emperor : AIR1940Cal277 , where a charge under Sec, 467/120B was framed and there had been no sanction obtained before the complaint was entertained it .was held by a Division Bench of this Court that conviction under Section 467/109 of the Indian Penal Code would be quite proper, although the charge under Section 467/120B must necessarily fail because there was not the necessary sanction taken. In the present case, cognizance has not been taken at all under Section 467/120B but only under Section 467/109 of the Indian Penal Code and in view of the above discussion we must hold that cognizance was rightly taken. It is true that in the petition of complaint, in paragraph 5, reference has been made prominently to the criminal conspiracy entered into for the purpose of forging the deed of agreement, the transfer deed and the proceedings in the minute book. But it is dear from the petition of complaint that the offence in respect of which there was the agreement of conspiracy had been completed or carried Out. Therefore, in view of the decisions mentioned above, it was quite right on the part of the learned Chief Presidency Magistrate to take cognizance in respect of the offence of abetment and the principal offence committed, that is, under Section 467/109 of the Indian Penal Code and, Section 467/471 of the Indian Penal Code. Mr. Munshi has also referred to the decision, State of Bombay v. United Motors (India) Ltd., : [1953]4SCR1069 there is a reference to the well-known rule of interpretation of statutes, that a particular enactment is not repealed by a general enactment in the same statute, and that
'the rule is that where a general intention is expressed, and the Act expresses also a particular intention incompatible with the general intention, the particular intention is to be Considered in the nature of an exception.'
It is further observed as follows:
'It may be laid down as a rule for the construction of statutes, that where a special provision and general provision are inserted which cover the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision.'
11. There can be no dispute as to this statement of law as to the mode of construction when there is conflict between a special provision and the general provision of any statute in respect of the same subject matter. We are, however, unable to agree that these observations have any application to the present case, because the conflict as between a criminal conspiracy and abetment of a conspiracy is not a conflict between a general provision and a special provision, neither are the provisions incompatible with one another. Criminalconspiracy is complete as soon as the agreement to commit the offence is made. If the offence has not been carried out, naturally for Criminal conspiracy sanction under Section 196A would be required; but where the object of the criminal conspiracy has been carried out it would be appropriate to regard the principal offence and the abetment thereof as the primary offences committed and to frame charges in respect thereof.
12. Mr. Ajit Kumar Dutt who generally adopted the argument of Mr. Munshi on this point has referred to a difference between the wording of the second clause of Sec, 107 and Section 120A of the Indian Penal Code. In Section 120A criminal conspiracy is defined as the agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal bv illegal means. In Section 107(2) a person is said to abet the doing of an offence who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of the conspiracy and in order to the doing of that thing. Mr. Dutt has argued that the use of the term 'engages' in this, second clause of Section 107 indicates that for abetment by conspiracy there must be some overt act done, whereas no such overt act is necessary for Conspiracy pure and simple. In our opinion, the term 'engages in conspiracy' does not by itself indicate the doing of an overt act: but reference to the doing of an act or making an illegal omission is contained in the next portion of the clause, namely 'if an act or illegal omission takes place in pursuance of the conspiracy'; that is, abetment is complete only when some act or illegal means takes place in pursuance of the conspiracy. It is therefore true that abetment by conspiracy means something more than criminal conspiracy as defined i'i Section 120A, when we are concerned with the agreement to commit an offence; but it is not correct that in the petition of complaint, only criminal conspiracy to commit forgery has been referred to; paragraph 5 definitely states that in pursuance of the conspiracy, forgery was committed and the forged documents used as genuine. The petition of complaint therefore furnishes sufficient basis for the charge of abetment of forgery.
13. Accordingly, on this point we find that no sanction under Section 196A Cr. P. C. was really necessary and the cognizance taken by the learned Chief Presidency Magistrate was quite legal and proper.
14. The next point urged by Mr. Munshi is that the learned Chief Presidency Magistrate applied a test erroneous in law that this being a case triable by a Court of Sessions, it was sufficient that the materials before him were such, that a reasonable body of men might believe the case to be true. The learned Chief Presidency Magistrate dealt with this aspect in paragraph 12 of this order, observing as follows:-
''That is, prima facie, I am satisfied about the truth of the allegations the complainant makes. That apart, the Complaint is for an offence triable by a Court of Sessions and the materials I see before me are such as, in my opinion, may lead a reasonable body of men to believe the truth thereof, and judged so, there is, in my opinion, sufficientground for proceeding within the meaning of Section 204 of the Criminal Procedure Code.'
We must, however, agree with the contention of Mr, Munshi that in considering whether or not there is sufficient ground for proceeding within the meaning of Section 204 of the Criminal Procedure Code, the question whether or not there is such material as may lead a reasonable body of men to accept the truth thereof is irrelevant. At that stage, when the Magistrate is dealing with the complaint, the question what a reasonable body of men, namely, the jurors, may do when a Sessions triable case is committed to the Sessionsj does not arise; that stage would arise before the learned Magistrate only after the accused have been summoned and necessary evidence and materials have come before the Court. But at the initial stage, the Magistrate taking cognizance has only to consider whether there is a sufficient ground for proceeding, that is, sufficient ground for issuing process; in other words, whether the complaint is in respect of an offence which is triable by a Magistrate or triable by a Court of Session, the learned Magistrate has to apply the same test, namely, where he believes in the truth of the complaint, or where there has been a preliminary enquiry whether prima facie there is enough material to show that the complaint is a true one. If he is satisfied on that point, the learned Magistrate may issue a process. In this case, however, the learned Magistrate did not rely primarily on the test of satisfaction of a reasonable body of men, but he referred to that test only as an additional ground. He was satisfied from a consideration of other materials including the statement of the complainant and documents which he called for and which he examined that there was a prima facie case, and in the course of his order he observed at more than one place that he was considering all the circumstances and materials, but only for the purpose of issue of process and for no other purpose. In connection with this point reference has been made to recent decision of the Supreme Court, namely, Vadilal Panchal v. Dattatraya Dulaji, : [1961]1SCR1 . In that case a complaint was filed in respect of a charge of murder by shooting. The learned Magistrate on the basis of materials obtained during the preliminary enquiry under Section 202 Cr. P. C. accepted the plea of justification by lawful exercise of the right of private defence, and dismissed the complaint. The High Court in revision took the view that it should be left to the accused to establish the right of private defence at the trial. But the Supreme Court reversed the order of die High Court and affirmed the decision of the learned Magistrate, pointing out that the Magistrate had to come to his own judgment on the basis of the materials before him whether there was sufficient ground for proceeding, and as he was satisfied on the materials before him that the accused was entitled to the right of private defence to the extent of complete exoneration, the learned Magistrate was entitled to dismiss the complaint altogether. This decision confirms the view we have taken that even if the offence complained of is an offence triable by the Sessions Court only, still at the stage of issuing process it is for the Magistrate taking cognizance to decide for himself, that is, on his own judgment whether there is a prima facie case against the accused; in other words, whether prima facie the complaint appears to be atrue one; and at this stage he does not have to think what a reasonable body of men, that is, the Jurors, may ultimatey think about the evidence.
15. In view of the fact, as already stated, that the learned Magistrate did consider the materials for himself and formed his own judgment, we do not see any substance in this point, viz., that the learned Magistrate had relied on an enormous test in the matter of issue of the process.
16. The next point urged relates to the power of the learned Chief Presidency Magistrate to entertain a complaint on the same facts after a previous complaint had been dismissed. Section 403 of the Code of Criminal Procedure, which bars fresh proceedings in respect of the same offence, only bars such fresh proceedings in cases in which there was a full trial and the accused was convicted or acquitted. The explanation to the Section expressly lays down that the dismissal of a complaint or the stopping of proceedings under Section 249 Cr. P. C. or the discharge of the accused does not amount to an acquittal for the purpose of this section. Therefore, the dismissal of an earlier complaint is no legal bar to the entertainment of a fresh complaint on the same facts, whether by the same complainant or by a different complainant. P.B. Mukharji, J., appears to have felt some difficulty in view of the two Division Bench decisions of this Court, namely ILR 23 Cal 983 and ILR 24 Cal 286, in which the view was taken that when the original complaint has been dismissed under Section 203 Cr. P. C. a fresh complaint on the same facts can-not be entertained so long as the order of dismissal is not set aside by a competent authority. Banerjee, J., who delivered the judgment in the earlier ol these cases, namely, ILR 23 Cal 983 observed that Section 403 Cr. P. C. no doubt expressly provided in the explanation that the dismissal of a complaint was not an acquittal within the meaning of the section and that there was no express provision in the Code to the effect that the dismissal of a complaint would bar a fresh complaint so long as the order of dismissal remained unreversed; but he went on to observe at the same time that there was no express provision to the contrary, and when the Code distinctly laid down a procedure for having an order dismissing a complaint under Section 203 Cr. P. C. or discharging an accused person set aside and a further enquiry directed, it seemed reasonable to conclude that the legislature intended that an order of dismissal of a complaint or discharge of an 0accused should be interfered with only in the manner provided.
17. After these two Division Bench decisions there have been two decisions of the Full Bench, namely, ILR 28 Cal 652 and ILR 29 Cal 728 in both of which it was held that a Magistrate in a warrant case having passed an order of discharge was competent to take fresh proceedings and issue process against the accused in respect of the same offence, without any order from a superior Court for further enquiry. P.B. Mukharji, J., pointed out that these two Full Bench decisions dealt with the case of discharge of the accused in a warrant case and did not deal with the dismissal of a Complaint under Section 203 Cr. P.C.; and he was, therefore, of the opinion that the two earlier Division Bench decisions had not been expressly overruled.It is, therefore, necessary for us to briefly consider this matter.
18. The two Division Bench decisions, though they dealt with the case of entertainment of a second complaint after the dismissal of the original complaint under Section 203 Cr. P. C., dealt on the same footing with an order for dismissal of complaint and discharge of an accused in a warrant case, because both these matters are mentioned together in the explanation to Section 403 Cr. P. C. as not amounting to an order of acquittal. These two Division Bench decisions were differed from by Maclean, C. J., sitting singly in the exercise of original criminal jurisdiction in the case of Queen Empress v. Dolegobind Dass ILR 28 Cal 211. Before the learned Chief Justice an application for quashing the commitment to the High Court Sessions was made on the ground that a previous order of discharge of the accused had not been set aside; and in support of the application for quashing, reliance was made on the decision of the Division Bench in ILR 23 Cal 983. Maclean, C. J., pointed out that Banerjee, J., in the course of his judgment in ILR 23 Cal 983, himself observed that there was no express provision in the Code to the effect that the dismissal of a complaint would bar a fresh complaint being maintained so long as the order of dismissal remained unreversed; and the learned Chief Justice went on to observe:-
'If, then, there be no express provision in the Code, what is there to warrant us in implying or in effect introducing into the Code a provision of such serious import? ..... were it to doso it would go perilously near to legislating, instead of confining itself to construing the Acts of the Legislature.
Moreover, it seems contradictory to say that, whilst the order of discharge in a case such as the present does not amount to an acquittal, it is yet necessary to have it discharged by the High Court before either the same or another Magistrate of coordinate jurisdiction can hear the complaint under Section 252. Neither necessity nor convenience warrants such a conclusion; there is nothing in the Code which compels it; and the balance of the decided cases appears to be against it.'
The learned Chief Justice referred to some earlier decisions namely, Hari Singh v. Danish Mahomed, 20 Suth WR (Cr.) 46; Opoorba Kumar Sett v. Sm. Probod Kumari Dassi 1 Cal WN 49 and Empress v. Donnelly, ILR 2 Cal 405. The learned Chief Justice held that these earlier cases had been distinguished on insufficient grounds by the learned Judges of the Division Bench, and he decided to follow them and not the Division Bench decisions in ILR 23 Cal 983 and ILR 24 Cal 286.
19. Maclean, C. J., had the opportunity to reaffirm his view in the two Full Bench decisions which followed close at the heels of ILR 28 Cal 211, the first of these cases being ILR 28 Cal 652. This was a Bench of the seven Judges and only one of the learned Judges adopted the view taken by the Division Bench in ILR 23 Cal 983 and ILR 24 Cal 286. The other six learned Judges came to the opposite conclusion, and thus the view of Maclean, C. J., was adopted and laid down as a good law. Maclean, C. J., delivered a brief judgment in this Full Bench case mentioning that he had given his argument in his earlier case, namel ILR 28 Cal 211. Prinsep, J., referred to the case law and observed as follows:-
'If the case-law on the subject be examined, it will be seen that, under the Code of 1872, it was frequently held that a Magistrate could hear a complaint under such circumstances, but this Court thought proper to restrict the exercise of this power to cases in which fresh evidence was forthcoming.' He went on to point out that under the Code of 1898 the position of the law was the same; in the course of his judgment he dealt not only with the case in which an accused on a previous occasion had been discharged, but also with a case in which a complaint on the same facts had been previously dismissed under Section 203 Cr, P. C.; and he dealt with two matters on the same footing. Particularly at pages 660 and 661 of the report the learned Judge dealt almost entirely with the case in which a previous complaint had been dismissed under Section 203 Cr. P. C., and fully agreed with the view of Maclean, C. J., that in such a case there can be no bar either in law or according to accepted practice in the way of the Magistrate entertaining a fresh complaint, even though the dismissal had not been reversed. He also dealt with the argument that the accused might constantly be brought before the Court to hear the evidence on which two opinions might be formed by two different Courts and thus put to a considerable inconvenience and harassment. The learned Judge observed that if reasonable discretion was not exercised by the trying Magistrate, injustice might possibly be done, but that could be set right by the superior Court, and that could not mean that the power of the Magistrates could be curtailed when the law provided no such limitation in respect of the power of the Magistrate in such cases.
20. Some of the other learned Judges who delivered separate but concurrent judgments fully agreed with the view taken by MaClean, C. J., and it is clear from a reading of the judgments that they were considering the cases of previous discharge of an accused and previous dismissal of a Complaint on the same footing, although in the instant case before them they had to deal with a fresh complaint entertained after a previous discharge of an accused. In the next Full Bench case, namely, ILR 29 Cal 726 the position of law as clarified in ILR 28 Cal 652 was reaffirmed as applicable to mofussil Magistrate ILR 28 Cal 652, being chiefly concerned with Presidency Magistrates. Thus the law as regards all the Magistrates, both Presidency and Mofussil, was laid down to be the same, namely, that they could entertain a fresh complaint after a previous complaint had been dismissed under Section 203 Cr. P. C. or an accused had been discharged previously after having been summoned. It is, therefore, clear that these two Full Bench decisions must be deemed to have overruled the two Division Bench decisions in ILR 23 Cal 983 and ILR 24 Cal 286 in respect of entertainment of a fresh complaint by a Magistrate where a previous order of dismissal has not been set aside by a superior Court.
21. It may be mentioned in this connection that Sri B.B. Mitra in his commentary on theCriminal Procedure Code 12th Edition, pages 866-67 has observed as follows:-
'It should be noted that the Calcutta cases of ILR 23 Cal 983, ILR 24 Cal 286 and Grish Chunder v. Dwarkadass, ILR 24 Cal 528 must be deemed as overruled by the Full Bench cases of ILR 28 Cal 652, and ILR 29 Cal 726.....
The Courts now appear to be practically unanimous in holding that an order dismissing a complaint or discharging an accused person, does not operate as an acquittal under Section 403, and does not bar the taking cognizance of a fresh complaint of the same offence, even though the order of disimissal or discharge has not been set aside in Revision by a competent authority.'
22. I may add further that Mr. Munshi also has conceded that in view of the Full Bench decisions and decisions of all the other High Courts he cannot rely on the two decisions ILR 23 Cal 983 and ILR 24 Cal 286; but he has urged that even though the Magistrate can entertain a fresh complaint, his power to do so must be restricted by certain considerations. He has referred to the case of the Bombay High Court (Hansabai v. Ananda, AIR 1949 Bom 384). In that case a complaint by Hansabai in respect of offences under Sections 447 and 504 I. P. C. and Section 24 of the Cattle Trespass Act was dismissed by a First Class Magistrate on the date of hearing on account of her absence. Thereafter, she brought a fresh complaint but after recording the evidence the Magistrate discharged the accused. A fortnight later she brought a fresh complaint on the same facts against the accused and the Magistrate to whom the complaint had been transferred for disposal, after a preliminary inquiry, summoned the accused. After the evidence had been taken the accused pleaded before the Magistrate that no charge should be framed as he had been discharged of the same offence on an earlier occasion. The Magistrate, however, rejected the contention and framed a charge, and thereafter, the accused moved the Sessions Judge who made a reference to the High Court.
23. In that connection Chainani, J., who delivered the judgment of the Division Bench, observed as follows:-
'Where an accused person has been discharged after consideration of all the evidence produced by the complainant, and a fresh prosecution is instituted thereafter on the same facts, the magistrate cannot be said to have sufficient ground for proceeding with the complaint unless he is satisfied that some additional evidence is forthcoming, of which the complainant was not previously aware or which it was not within his power to produce in the previous trial, or that there has been manifest error apparent on the face of the record or manifest miscarriage of justice. It cannot be said to be in the interests of justice that a party who has obtained a decision from a Court after a full consideration of his case should be given an opportunity to seek from the same Court or another Court of co-ordinate jurisdiction a different decision on the same facts and on the same evidence.'
24. This conclusion was arrived at by the learned Judge after reference to a number of decisions of various High Courts including the two FullBench decisions of the Calcutta High Court noted above and the decision of Maclean, C. J., sitting singly in ILR 28 Caj 211. It should be mentioned, however, that Maclean, C. J. in ILR 28 Cal 211, did not seek to impose the restrictions which were laid down by Chainani, J., at least not in the same terms. He observed at page 217 as follows:-
'I only desire to add that no Presidency Magistrate ought, in my opinion, to rehear a case previously dealt with by a Magistrate of co-ordinate jurisdiction upon the same evidence only unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice.'
In other words, according to Maclean, C. J., the Presidency Magistrate, hearing a fresh complaint, after a previous discharge of the accused, could entertain a fresh complaint if there was any fresh evidence, without the restriction that the evidence should be such as the complainant was not aware of or as was not within his power to produce at the previous trial. In the Full Bench decision ILR 28 Cal 652 Maclean C. J., reaffirmed the view he had taken in the earlier case of ILR 28 Cal 211 and Prinsep, J., at p. 659 referred to the power of the Magistrate being restricted to a case in which fresh evidence was forthcoming. In this connection also, there was no restriction stipulated on the nature of the evidence that it should be such as the complainant was not aware of or as was not within his power to produce at the time of the previous trial or hearing. He also observed that the magistrate could rehear a complaint which had previously been dismissed arbitrarily or hastily. The position according to the Calcutta High Court, therefore, appears to be that a fresh Complaint may be entertained after a previous dismissal of a complaint under Section 203 Cri. P. C. or after a previous discharge of the accused, when there was manifest error or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming. The point is whether we ought to adopt the decision of the Bombay High Court that the nature of the new evidence should be restricted to such as the complainant was not previously aware of or which was not within his power to produce at the previous trial. This would practically mean the application of the provisions of Order XLVII, Rule 1 of the Civil Procedure Code, namely, that review of a judgment may be allowed on the discovery of new and important material or evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or the order was made. In Civil proceedings the principle of Res Judicata applies with all its force; and moreover, there is provision for granting relief when an ex parte decree has been passed or a plaint has been dismissed for default. The provision for review relates to a provision for reopening of a decision already made. It is natural that in the circumstances, in Civil proceedings, the nature of the evidence justifying such reopening should be strictly restricted. The same principles cannot apply to criminal proceedings where a fresh complaint is entertained after dismissal of a previous complaint or after discharge of an accused in a previous proceeding. No doubt, the fresh evidence would have to be scrutinised by the Court with some strict-ness; but if the evidence is true and acceptable, there is no reason why on the basis of such new evidence a fresh complaint should not be entertained. It appears that in laying down the restrictions on fresh evidence, that it should be such as the complainant was not aware of or as it was not within his power to produce at the previous trial, Chainani, J., was influenced by the judgment of Sadasiva Aiyar, J., in the decision of the Madras High Court in Doraisami v. Subramania, AIR 1918 Mad 484, where it was observed by Sadasiva Aiyar, J., that
'while there is nothing in law against the entertainment of a second complaint of the same facts on which a person has. already been discharged after consideration of all the evidence produced by the complainant, the magistrate cannot be said to have sufficient ground for proceeding with the complaint within the meaning of Section 204 unless he is satisfied that some additional evidence is forthcoming, of which the complainant was not previously aware or which it was not within his power to produce in the previous trial, or that there has been manifest error apparent on the face of the record or manifest miscarriage of justice.'
There may be some justification for imposing this restriction where .the accused had actually been summoned and placed on trial and then discharged, but these considerations cannot possibly apply to a case of previous dismissal of a complaint, because in that case the accused had never been summoned and placed on trial; and the question of having been harassed Dreviously cannot arise.
25. Mr. Munshi has referred to a decision of Patna High Court also, where the same restriction on new evidence was sought to be imposed even in a case where a previous complaint has been dismissed under Section 203 Cr. P. C. This decision is Ram Narain v. Panachand Jain, AIR 1949 Pat 256. The observation occurs at page 258 (bottom) as follows:-
'It is now well settled that although a previous order dismissing the complaint is no bar to the institution of a fresh case against the same accused, still a new complaint in respect of the same offence should not be entertained, unless there are exceptional circumstances, e. g., where new facts which could not with reasonable diligence, have been brought forward in the previous proceedings are adduced or there was some manifest error in the previous proceedings, or the previous order was passed on an incomplete record or a misunderstanding of the nature of the complaint, etc.' In restricting the new facts or new evidence to such as the complainant could not with reasonable diligence, have brought in the previous proceeding, their Lordships were also adopting the wording of Order XLVII, Rule 1 C. P. C. and we have already observed that in our opinion there is no reason to do so when we are dealing with a case of fresh complaint after dismissal of a previous complaint where the accused was never summoned and put on trial. There is no reason for us to go beyond the observations of Maclean, C. J., in the case of ILR 28 Cal 211 which was affirmed by the Full Bench in ILR 28 Cal 652 and we, therefore, holdthat a fresh complaint after dismissal of a previous complaint could be entertained when there was any manifest error Or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.
26. As regards the fresh evidence available in the case that has been recited in paragraph 18 of Saroj Ranjan Sarkar's petition of complaint. This aiew fact is that the separate sheet on which minutes of the alleged proceedings of 16th January, 1948, were typed, bears the printed letter-head showing telephone No. City 6091, but the telephone exchange 'City' did not come into existence till December, 1948 and the Hindusthan Co-operative insurance Society Ltd., did not take a telephone connection until March, 1949. On the two Matter facts, an affidavit was filed before the learned Chief Presidency Magistrate by Santi Ranjan Sarkar, and the learned Chief Presidency Magistrate accepted that affidavit, and also referred to his own personal Knowledge as to the date on which the City Exchange had come into force. He observed in this Connection that this was a matter of which he could take judicial notice under Section 57 of the Indian Evidence Act, because it was a matter of public history. Section 57 of the Indian Evidence Act, after Clause 13, proceeds as follows:
'On all matters of public History, Literature, Science or Art, the Court may resort for its aid to appropriate Books or Documents of Reference.'
Thus, though public History is not one of the 13 items, it is clear that the Court may take judicial notice of any matter of public History. Mr. Dutt has, however, urged that the establishment of a new telephone Exchange in the city of Calcutta is not such a matter of public History as is contemplated in this paragraph of Section 57 of the Indian Evidence Act. Assuming that this is so, at least this is a matter which may be readily proved before the Court by competent officers of the Calcutta Telephone office, and it was provisionally proved before tile learned Chief Presidency Magistrate by an affidavit of Santi Ranjan Sarkar and, therefore, it was within his power to take notice of the fact and come to a prima facie decision on the assumption that the fact alleged is true.
27. A good deal of argument was advanced to show that the existence of the typed letter-head bearing the City telephone No. 6091 and the date when the City exchange came into force and when the telephone connection with the City No. was taken by the Hindusthan Co-operative Insurance Society Ltd., were not such facts which the complainant could not with due diligence have produced at the previous proceeding. In view of the decision wo have taken it is not necessary for us to go into these questions, but in passing we may observe that the complainant did give some explanation why this item of evidence was not given at the previous trial'. It was stated that these additional facts were not available when the original petition of complaint was filed by Promode Ranjan Sarkar. This view may rightly be accepted in view of the state of things disclosed by the correspondence between Promode Ranjan Sarkar and P.N. Talukdar or Amiya Chakravarti, Secretary of N.R. Sarkar and Co. Ltd. which was started in the beginning of September 1953 and went onfor two or three months. It appears that at the inspection of 13th October, 1953 which was granted to P.R. Sarkar, he was permitted to see the Minute Book, but not to take a photostat copy of any Minute from the Minute Book. Therefore, even though it might have been noticed that the disputed proceedings of 16th January, 1958 were typed on a piece of paper bearing printed letterhead with a telephone Number, it might be possible that P.R. Sarkar's attention was not drawn to the fact that a number of the City telephone Exchange which was not in existence at the relevant time, appeared on the paper. Even when the Handwriting Expert called by the Chief Presidency Magistrate took the photostat copies and made enlargements thereof, it would appear from the relevant papers that he made enlargements only of the disputed signatures and not of the lefthand top corner of the paper bearing the telephone No. It is, therefore, quite reasonable to accept that this was a matter that did not come, to the notice of the original complainant when he filed a petition of complaint or when he adduced evidence in the course of judicial enquiry. As soon as it had come to his notice, in the course of the revisional application pending before Debabrata Mookerjee, J., an application was made before him, on the 7th June, 1955, for admitting this fresh evidence. Debabrata Mookerjee, J., however observed that he was not prepared to take notice of any new matter mentioned in the application. Thus the previous complainant had no opportunity to place the new matter before the Court in the course of preliminary enquiry or in the course of revisional application from the order of the then Chief Presidency Magistrate dismissing his complaint. Thus sufficient explanation was given for non-production of these items of evidence at the previous trial.
28. Apart from the existence of the new evidence, the present Chief Presidency Magistrate Shri Bijoyesh Mukherjee also recorded the prima facie finding that the signatures reading N.R. Sarkar' on the disputed proceedings of the alleged meeting held on 16th January, 1948, and on the deed of agreement dated the 19th January, 1948, were not really the signatures of N.R. Sarkar. In this connection Mr. Munshi has urged that the learned Chief Presidency Magistrate had no power to review the judgment of the earlier case, that is, judgment of Shri N.C. Chakrabarti. Mr. Ajit Kumar Dutt appearing for S.M. Basu has urged with great vehemence that in any case, in view of the fact that the decision of the previous Chief Presidency Magistrate was affirmed by a High Court Bench in Revision, the present Chief Presidency Magistrate had no jurisdiction to question the validity of that decision relating to the genuineness or otherwise of the signatures reading 'N.R. Sarkar' in the two documents.
29. As regards the present Chief Presidency Magistrate sitting in judgment over the finding of his predecessor Shri N.C. Chakrabarti, we must hold that this was quite legal and proper in view of the relevant law as discussed by us previously. The new complaint can be entertained not only when there is fresh evidence, but also when the previous order contained a manifest error or resulted in manifest miscarriage of justice. For thepurpose of ascertaining whether the previous order contained manifest error or caused miscarriage of justice, the learned Magistrate entertaining the second complaint is entitled to go into the decision of the previous Magistrate. Mr. Munshi has urged that manifest error means error appearing on the face of the record relating to the procedure. As regards miscarriage of justice Mr. Munshi has referred to Halsbury's Laws of England, 3rd Edition, Vol. 10, page 538, para 988 where it is observed as follows:-
'A substantial miscarriage of justice may occur where there has been misdirection by the Judge of the Court of trial on matters of fact relating to the evidence given, misconduct on the part of a member of the Jury, or any improper tampering with the jury, where it improperly becomes known that the defendant has been previously convicted, where there has been any unfairness in the conduct of the trial, or in matters of importance preceding the trial, where evidence of which corroboration is requisite or desirable (for example the unsworn evidence of a child or the evidence of an accomplice) has been admitted and the jury have not been sufficiently warned of the necessity or desirability of corroboration, and in other ways.'
Thus the cases in which miscarriage of justice may occur cannot be fully enumerated and the enumeration given in Halsbury as quoted above relates mostly to jury trials. Corresponding provisions would apply to trials by Magistrates or preliminary enquiries by Magistrates. Thus as there may be miscarriage of justice where there has been misdirection by the Judge on matters of fact relating to the evidence given, miscarriage of justice may arise where the learned Judge or Magistrate has mis-directed himself on matters of fact relating to the evidence. In the present case it appears that the previous Chief Presidency Magistrate Shri N.C. Chakraborti altogether ignored the evidence of a large number of witnesses who were competent to prove the handwriting and the signature of Nalini Ranjan Sarkar, without giving a single reason why he did not accept their evidence; and he also set aside the report of the enquiring Magistrate Shri A.B. Shyam for reasons which cannot be held to be proper and judicial reasons. Thus he observed in the course of his judgment as follows:-
'The complaint was sent to A.B. Shyam for judicial enquiry. He was of the view that the signatures of late N.R. Sarkar in the Minutes and also in the deed of Agreement were different from the standard signatures of late N.R. Sarker and that this difference was palpable even to the naked eye. With that view I could not agree and, therefore, had the disputed signatures examined by a handwriting expert'.
The handwriting expert Shri Sridhar Chatterjee also gave the opinion that the disputed signatures were not written by the hand which had produced standard or admitted signatures of Shri Nalini Ranjan Sarkar. The learned Chief Presidency Magistrate, However, without taking any further evidence, gave reasons for not accepting the evidence of handwriting expert, and did not consider at all the oral evidence given by many witnesses who had been examined in the course of the judicial enquiry held by Shri A.B. Shyam; he explained away the evi-dence adduced to show that some cartridge papers On which the disputed agreement dated 19-1-49 was inscribed, were not then in existence, by assuming that Sri N.R. Sarkar might have himself ante-dated this document, thus accepting a possible defence for which there was no basis before him; and he relied almost entirely on his own comparison of the disputed and admitted signatures of Sri N.R. Sarkar.
30. Now while it is competent on the part of a judgs or a Magistrate to compare the disputed signatures with the admitted signature for himself, vide Section 73 of the Indian Evidence Act, it is unsafe to rely entirely on such personal comparison. Reference may be made in this connection to the decisions J.C. Glastaun v. Sonatan Pal : AIR1925Cal485 , Dar-shan Singh v. Prabhu Singh : AIR1946All67 and Kessarbai v. Jethabhai AIR 1928 PC 277. Thus itr cannot be said that there was a judicial enquiry of the matters before the Court; the decision was rather arbitrary and so resulted in manifest miscarriage of justice.
31. Mr. Munshi has urged that manifest miscarriage of justice cannot be said to exist merely because one Magistrate differs in his assessment of the evidence from another. In the present case, however, it was not a case of difference in assessment, but the evidence of numerous witnesses who all deposed in the same way, and circumstances indicating that the documents, could not have been executed on the dates on which they purported to have been executed, were all brushed aside without sufficient reasons by the Chief Presidency Magistrate; and this must be held to amount to manifest miscarriage of justice, that is, miscarriage of justice which is apparent on the face of the record. So the present Chief Presidency Magistrate would be entitled to entertain the fresh complaint even if there were no fresh evidence.
32. As regards the point prominently raised by Mr. Dutt, that whatever be the merits of the decision of Shri N.C. Chakraborti, since his view was affirmed in Revision by a Bench of this Court, Debabrata Mookerjee, J., it was not open to the present Chief Presidency Magistrate to ignore the opinion of the previous Chief Presidency Magistrate as to the genuineness or otherwise of the disputed signatures appearing on the two documents we may point out that the fresh materials which have been produced in the case are sufficient to require fresh examination as to the question whether or not the disputed signatures are genuine. When it appears from prima facie reliable evidence that the loose paper on which the proceedings of 16th January, 1948, were typed out, could not have been in existence until about 15 months after alleged date of the proceedings, this is strong prima facie evidence indicating forgery, and this circumstance naturally could not be considered either by the earlier Chief Presideny Magistrate or by the learned Judge of the High Court who dealt with the earlier revision case. This circumstance by itself would be sufficient to give jurisdiction to the present Chief Presidency Magistrate to entertain the fresh complaint and issue process. In the face of the existence of the important new evidence, the question what would be the position of the present Chief Presidency Magistrate if such evidence hadnot been in existence, is largely academical. We may, however, refer to two cases in which this question was considered. In the case of Jyotindra Nath Daw v. Hem Chandra Daw ILR 36 Cal 415, it was held that the subordinate Magistrate who had dismissed the complaint under Section 203 of the Code of Criminal Procedure was entitled to revive the same even though a revision application filed under Section 436 of the Code of Criminal Procedure before the District Magistrate had failed, the District Magistrate having dismissed the revisional application and refused to order further enquiry. This view was followed by a Bench of the Lahore High Court in the case of Allah Ditta v. Karam Baksh, AIR 1930 Lab 879 where it was held that the second complaint for an alleged offenCe is entertainable by a Magistrate and it is not absolutely necessary to get the previous order of dismissal under Section 203 of the Code of Criminal Procedure set aside by a superior Court before lodging such complaint; and it is entertainable even when the previous order of dismissal was confirmed by a superior Court in revision. It was observed at the same time that only in exceptional circumstances a second complaint should be entertained, e. g. where the previous order was passed on an incomplete record or where the previous order was manifestly absurd or foolish. The decision of the Calcutta High Court in ILR 36 Cal 415 was referred to and followed. These cases were, no doubt, cases of Revision by the District Magistrate or Sessions Judge and not by the High Court; but the principle would be the same. When exercising revisional jurisdiction under sections 435 and 439 of the Code of Criminal Procedure the High Court may examine the question of property, legality or correctness of any order of the lower Court, but it is discretionary on it to do so, and frequently unless there is overriding reason, the High Court refrains from interfering with an order of dismissal of complaint by a Magistrate. But such refusal to interfere with the order of dismissal cannot take away the jurisdiction of the Magistrate to entertain a fresh complaint within the limitations we have noticed before namely, when there is fresh evidence or when there was manifest error or manifest miscarriage of justice in the previous order.
33. Mr. Munshi has referred to the observation of the learned Chief Presidency Magistrate relating to stifling of the prosecution as a result of the composition between Promode Ranjan Sarkar and the petitioners when the Supreme Court appeal was pending. In paras 6 to 8 of his judgment the learned Chief Presidency Magistrate was dealing with the question whether the present complaint of Saroj Ranjan Sarkar had been made from any mala fide motive life blackmailing, and whether issue of process in such case would be an abuse of the process of the Court. In dealing with that question, the learned Chief Presidency Magistrate pointed out in para 7 that Saroj Ranjan Sarker, though he had deposed in favour of the case brought by Promode Ranjan Sarker, was not a party to the composition before the Supreme Court; and in para 8 he observed that the statement 'smacked of the stifling of a prosecution which the law did not allow to be composed' (Sections 467 and 471 of the Indian Penal Code being non-compoundable). In that view the learn-ed Magistrate held that there is no reason to think that the present application by Saroj Ranjan Sarker was mala fide and had been filed for blackmailing. The observations relating to 'smacking of stifling a prosecution which the law does not allow to be composed' might be inappropriate, but the reason given by the learned Chief Presidency Magistrate in para 7 in his judgment appears to be sufficient for his conclusion that the present complaint was not a mala fide one, namely, that the present complainant bad not been a party to the composition before the Supreme Court. Even if we concede that the observation of the learned Chief Presidency Magistrate relating to 'smacking of stifling a prosecution' was not happy, that does not take away the correctness of his decision relating to the nature of the present complaint.
34. In this connection there is the last point urged by Mr. Munshi, namely, that in view of the nature of the complaint, issue of process in the present case amounts to an abuse of the process of the Court. Now abuse of the process of the court has. been defined in Jowett's Judicial Dictionary as issue of process on a complaint which is manifestly frivolous or which is not made in good faith. But we would agree with the learned Chief Presidency Magistrate that there is nothing to indicate that the present complaint by Saroj Ranjan Sarkar is manifestly frivolous or not made in a good faith. There was, no doubt, delay in filing the complaint, but it was natural for Saroj Ranjan Sarkar to await the decision of the complaint filed by his elder brother Promode Ranjan Sarker. There could be no point in coming to the court with a fresh complaint when a complaint in respect of the same subject matter was already pending before the court. As pointed out by the learned Chief Presidency Magistrate, the present complaint of Saroj Ranjan Sarker was filed within 22 days of the withdrawal of the appeal by the appellant in the Supreme Court; this was no undue delay. The materials before the Court do not show that the complaint was manifestly frivolous and there is no reason to think that it was not made in good faith.
35. This disposes of the main points urged by Mr, Munshi. Mr. Ajit Kumar Dutt who has dealt with the revisional application of S.M. Basu has urged that in dealing with the revisional case we shall confine ourselves to the materials which appeared before the present Chief Presidency Magistrate and decide whether on the basis thereof, the issue of process was justified. It is true that strictly speaking the present revisional application ought to be confined to the materials which appeared before the present learned Chief Presidency Magistrate; but for dealing with the question whether or not the previous order was manifestly wrong or resulted in manifest miscarriage of justice, it was inevitable that the materials before the previous Chief Presidency Magistrate should also be incidentally looked into. Before the present Chief Presidency Magistrate, there were the petition of complaint, the affidavit filed by Santi Ranjan Sarker and the memo of the evidence of the complainant recorded by the learned Chief Presidency Magistrate in his order dated 11-4-59. There were also certain documents which were called for by the learned Chief Presidency Magistrate, namely, report of Shri A.B. Shyam dated the 12th May, 1954, the order of Shri N.C. Chakravorty, former Chief Presidency Magistrate, dated the 6th August, 1954, the judgment of the High Court in Criminal Case No. 1059 of 1954, photostatic copy of the unregistered agreement dated the 19th January, 1948, the Minute Book containing Proceedings of the Board of Directors of N.R. Sarker and Co. Ltd, and certain other documents mentioned in the order of the learned Magistrate dated the 11th April, 1959. It was mainly on the materials before him as mentioned above that the learned Magistrate came to the conclusion that there was a prima facie case against the two accused. As mentioned in another connection, the fact that the proceedings of the alleged meeting dated the 16th January, 1948, appeared on paper which could not have been in existence for about fifteen months after the alleged date of the meeting, is sufficient to raise a strong presumption as to the forgery of the document. The other document, namely, the agreement of the 19th January, is closely linked with the resolution of the 16th January, 1958, at which the draft of the agreement is alleged to have been approved by Shri N.R. Sarker. There is also the comparison of the disputed signature of the two documents with the admitted signature of late N.R. Sarker for the purpose of arriving at a prima lacie decision. The learned Chief Presidency Magistrate was entitled to make such comparison, even though the learned Magistrate did not record the evidence of witnesses other than the complainant who also proved that the signatures reading 'N.R. Sarkar' on the two documents were not genuine.
36. Mr. Ajit Kumar Dutt has urged in particular that the materials do not make out a prima facie case against S.M. Basu and that the petition of complaint also does not indicate any case against S.M. Basu. In the petition of complaint, however, it is mentioned in paragraph 5 that the accused all entered into conspiracy with one another to dishonestly and fraudulently forge the Deed of Agreement, Deed of Transfer and the Minutes Book of N.R. Sarkar and Co. Ltd; and in paragraph 5(a) it is expressly mentioned that accused No. 2 S.M. Basu was the sole attesting witness of the Deed of Agreement dated the 19th January, 1948. These averments, if accepted, would be sufficient to show the existence of prima facie case against S.M. Basu. Mr. Dutt has urged that the statement in paragraph 5(a) that accused No. 2 was an attesting witness of the Deed of Agreement, is not a true statement, because as the photostatic copy of the last page of the agreement shows that the petitioner S.M. Basu only signed below the endorsement 'the common seal of the Company above-named has hereunto been affixed by Mr. N.R. Sarker, Governing Director of the Company at Calcutta in the presence of'. This endorsement under the signature of S.M. Basu, Solicitor, Calcutta, appears on the left hand side of the bottom of the last page; while the signature reading 'N.R. Sarker' for N.R. Sarker and Co. Ltd. appears on the right hand side. Further below are the signatures of P.N. Talukdar and the endorsement of S.M. Basu against that reading 'Signed, Sealed and Delivered by the said Pramatha Nath Talukdar, the Managing Director abovenamed at Calcutta in the presence of. We are concerned with the first endorsement of S.M. Basu relating to the common seal which appears against the signature reading 'N.R. Sarker'. The signature did not purport to be an attestation of the signature of Mr. N.R. Sarker, but S.M. Basu only certified that the common seal of the Company had been affixed by Mr. N.R. Sarker in his presence. Thus strictly speaking S.M. Basu was not an attesting witness to the Deed of Agreement; but it is clear that it Mr. N.R. Sarker himself affixed the common seal of the Company in the presence of this witness, the signature reading 'N.R. Sarker' appearing in the document must also be genuine, because it cannot be expected that Mr. N.R. Sarker would affix the common seal on a document on which the forged signature appeared. On the other hand, if the signature reading 'N.R. Sarker' is forged, it is clear that when S.M. Sasu was certifying that the common seal of the Company had been affixed by N.R. Sarker in his presence, he was giving a false certificate, because as already observed, N.R. Sarker could not himself put the Seal on a document which was forged. Therefore, if it is established by other evidence that the signature reading 'N.R. Sarker' on the document is not genuine and that the document is forged, then the signature of S.M. Basu with the endorsement that N.R. Sarker put the common seal of the Company in his presence must go to show that S.M. Basu was inextricably involved in the conspiracy in pursuance of which the fabrication of the documents was done.
37. In the circumstances, we have no reason to differ from the finding from the learned Chief Presidency Magistrate that there is a prima facie case against S.M. Basu. It is hardly necessary to add that there is sufficient prima facie case, as found by the learned Chief Presidency Magistrate, as against the other petitioner P.N. Talukdar.
38. Accordingly, both the Rules are discharged.
Bhattacharya, J.
39. I agree.
K.C. Sen, J.
40. I agree.