PE<ORG>I<ORG>IONER: NIRMALJI<ORG> SING<ORG> <ORG>OON <NAME>s. RESPONDEN<ORG>: <ORG><ORG>E S<ORG>A<ORG>E OF WES<ORG> BENGAL AND ANR. DA<ORG>E OF JUDGMEN<ORG>06/09/1972 BENC<ORG>: <NAME>, J.M. BENC<ORG>: <NAME>, J.M. DUA, I.D. K<ORG>ANNA, <ORG>ANS RAJ CI<ORG>A<ORG>ION: 1972 AIR 2639 1973 SCR (2) 66 1973 SCC (3) 753 CI<ORG>A<ORG>OR INFO : RF 1976 SC1672 (15) R 1977 SC2018 (5) RF 1979 SC 437 (8) D 1981 SC 22 (20,21) RF 1986 SC2045 (45) AC<ORG>: Code of Criminal Procedure (Act 5 of 1898), ss. 156(3), 195(1)(c), 202 and 204<ORG>Scope of. <ORG>EADNO<ORG>E: <ORG> (in voluntary liquidation) was the owner of 51% of the ,shares in <ORG><ORG><ORG> and 707 shares out of them were in the possession ,of <ORG><ORG><ORG>. <ORG>he 5th respondent owned the balance of 49% shares. In a suit filed by him against the <ORG> <ORG> passed a decree directing <ORG> to deliver the 51% shares to him on payment of a certain sum and issued an injunction restraining <ORG>, until delivery of the shares, from exercising its rights as holder of those :shares. Some time later one of the liquidators, <NAME>, of <ORG>, and M went to the office of <ORG><ORG><ORG> where <NAME> executed a receipt and an indemnity bond. <ORG>he receipt recorded the fact that the 707 share certificates were received from the 2nd respondent one of the directors of the <ORG><ORG><ORG>. It also contained two endorsements; one in the handwriting of the 2nd respondent stating "shares with me" and another, addressed to the 2nd respondent alleged to. have been written by <NAME>, stating, "I do not want to carry these with me, hence leaving meantime with personally for delivery to me later". <ORG>he indemnity bond purported to indemnify <ORG><ORG><ORG> against any claims by the 5th respondent in respect of the 707 shares and contained also certain undertakings. <ORG> took out execution against <ORG><ORG><ORG> for the delivery of the 707 shares claiming entrustment of the shares to the second respondent by <NAME>. Copies of the receipt and the indemnity bond were filed, and the originals were shown to the Counsel for <ORG><ORG><ORG>, during the proceedings for satisfying them that the copies were correct copies. <ORG>hereafter, the appellant, another liquidator of the <ORG><ORG> <ORG>, filed a complaint before the Chief Presidency Magistrate against respondents 2 to 5, the directors and Secretary of the <ORG><ORG><ORG>, alleging that <NAME> and M went to the office of, <ORG><ORG><ORG> for obtaining the 707 shares for delivering them to respondent 5, that the second respondent delivered the shares to <NAME>, that since <NAME> had a luncheon engagement he did not want to take them with him, that the second respondent made the first endorsement on the receipt and <NAME> himself made the second endorsement to clarify why the shares were left with the second respondent, that <NAME> took away the indemnity bond with him as the second respondent wanted the signature of the appellant also, that later, on that day, the solicitors of <ORG> sent their assistant C to the second respondent for the shares, that the :second respondent gave an assurance that he would send them through the solicitors of the <ORG><ORG><ORG> but did not do so, that the second respondent was withholding the shares at the instance of the fifth respondent who was, as a result of the injunction, in a position to control the <ORG><ORG><ORG> without having to pay for the 51 % shares and was therefore interested in preventing <ORG> deliverng the shares to him, and that respondents 2 to 5 were guilty of offences under ss. 120B, 406 and 420, I. P. C. <ORG>he second respondent filed a counter complaint against the appellant, <NAME> and M, under ss. 467 , 471 , 193 , 474 and 109 I.P.C. <ORG>e alleged that the 707 shares were always lying with the <ORG><ORG><ORG> as the <ORG><ORG><ORG> 67 claimed a lien over them in respect of certain payments for income<ORG>tax purposes,, that the second respondent produced them before <NAME> for his inspection, that he objected to the word "received" in the receipt and wanted instead the word "inspected", that <NAME> declined to alter the receipt and thereupon the second respondent wrote out the first endorsement with a view to clarify that the share certificates were still in his custody and not with the fifth respondent. <ORG>e denied his having delivered them to <NAME> or that <NAME> entrusted them to him or, that he promised to hand them over to the solicitors of <ORG>. <ORG>e alleged that the appellant later on made an interpolation, namely the second endorsement in the receipt to give a false twist to the first endorsement and to show ;that the certificates were entrusted to the second, respondent by <NAME>. <ORG>he Chief Presidency Magistrate directed the police to enquire into the appellant's complaint under s. 156(3) , Cr.P.C . <ORG>he receipt was produced before the police by the appellant, and the police seized the 707 shares from the fourth respondent, the Secretary of <ORG><ORG><ORG>. <ORG>he ,police however reported that the complaint was a false one. <ORG>he appellant thereupon filed objections and the Chief Presidency Magistrate directed a judicial enquiry into the complaint. <ORG>he Chief Presidency Magistrate find also directed a judicial enquiry into the counter complaint. <ORG>he Magistrate who inquired into the matter reported to the Chief Presidency Magistrate that no prima facie case was made out in the complaint, by the appellant, but that a prima facie case was made out against the appellant, <NAME> and M. In the course of the enquiry, the appellant and C and M, were examined as witnesses, but <NAME>, who was in U.K., was not examined. <ORG>is affidavit was sought to be filed, but it was held that the affidavit could not be received in evidence. <ORG>he Chief Presidency Magistrate and <ORG> in revision agreed that the complaint of the appellant should be dismissed, but held that in the cunter complaint process should issue but only against the appellant. Reference was also made by <ORG> to the nonexamination of <NAME> during the judicial enquiry. In appeals to this Court, (1) allowing the appeal regarding the com<ORG>plaint by the appellant, (by the Majority) and (2) dismissing the appeal regarding the complaint against the appellant. <ORG>ELD (per <NAME> and <NAME>, JJ.): (1) Under s. 202 ., Magistrate, 'on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct on inquiry to be made by a Magistrate subordinate to him or by a police officer for ascertaining. its truth or falsehood. <ORG>he inquiry by the Magistrate envisaged at this stage is for ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint. so 'as to justify the issue of process. Unless, therefore, the Magistrate finds that the evidence led before him is self<ORG>contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. In a revision against such refusal, <ORG> also has to apply the same test. [79A<ORG>B, F<ORG><ORG>] In the present case, 'both the receipt and the indemnity bond were before the Magistrate and were marked as documents in the case. <ORG>hey were also before <ORG>. <ORG>he receipt prima facie showed that <NAME> at first "received"' the share certificates from the 2nd respondent and 'the endorsement admittedly written by the 2nd respondent, indicates that <NAME> had left them with the 2nd respondent. <ORG>he evidence of M and the appellant was that the 2nd respondent had demanded an indemnity bond which was signed by <NAME> and later by the appellant. Such a bond containing 68 the indemnity and undertakings would not have been executed unless the share certificates had been delivered to <NAME>. According to the evidence of M, C, and the appellant, the two documents were executed on the date when <NAME> went to the <ORG><ORG><ORG> to obtain delivery of the shares. <NAME>, if examined, would have been the principal witness, and his affidavit, in his absence, could not constitute admissible evidence. But examination of <NAME> would have meant bringing him to India from England at considerable cost. <ORG>he mere fact that the appellant did not examine him could not be a ground for throwing out the appellant's complaint when there was other evidence making out a prima facie case. Neither the Magistrate nor <ORG> expressed any view that the evidence either of the appellant or of the other witnesses was false or intrinsically unbelievable. It may be that much could be said on both sides, but certainly this was not a case of there being no prima facie, case or the evidence being so self<ORG>contradictory or intrinsically untrustworthy that process could properly be refused.[81<ORG>; 82A<ORG><ORG>] (Per <NAME>, J. dissenting) : An enquiry or investigation is ordered under s. 202 , Cr.P.C ., by a Magistrate on receipt of a complaint for the purpose of ascertaining the truth or falsehood of the complaint. If the Magistrate, after considering the statement on oath of the complainant and hiswitnesses and the result of the enquiry or investigation under the section,is of the opinion that there is no sufficient cause for proceeding,be may dismiss the complaint. If, on the contrary, he is of opinion that there issufficient cause for proceeding he should issue process against the accusedin accordance with s. 204 . <ORG>he evidence which is required to be adduced by the complainant at this stage need not be sufficient for record<ORG> ing a finding of conviction; but that does not absolve the complainant, who wants the Magistrate to issue process against the accused, from leading some credible evidence which shows,, prima facie, that the offence was committed. [95E<ORG><ORG>] In the present case, there seems to be an inconsistency in the receipt between the writing of <NAME> and the endorsement by the 2nd respondent. <ORG>he receipt is thus ambiguous, and in the absence of oral evidence, it is difficult to infer from the receipt that the shares were entrusted by <NAME> to the 2nd respondent. <ORG>he best and most important person to explain the ambiguity and prove the entrustment was <NAME> but he was; not examined as a witness, and his affidavit could not be received in evidence under s. 510A , Cr.P.C ., as his evidence was not of a formal character. <ORG>he other person, who was present at the time of the alleged entrustment was M, but his evidence does not prove the delivery of the shares to <NAME> or entrustment by him to the second respondent. <ORG>he evidence of C, the indemnity bond, the letters of the Solicitors of <ORG><ORG>Company and the statement of the second respondent in his compsaint<ORG>assuming it could be referred to in the appellant's complaint<ORG>do, not reveal any entrustment of the shares to the 2nd respondent. [92C; 93B<ORG>C; 94A<ORG>B, D, G; 95A<ORG>E] (2)(Per Curiam) : <ORG>he first part of s. 195(1) (c), Cr.P.C ., provides that the offence in respect of which the complaint in question is filed must be one under s. 463 , or s. 471, or s. 475 or 4. 476, I.P.C . <ORG>he second part provides that such an offence must be alleged to have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding. A document can be said to have been produced in a court when it is not only produced for the purpose of being tendered in evidence, but also for some other purpose. It is only if the two requirements are satisfied that no court can take cognizance of such an offence except on a complaint filed by such Court or a Court subordinate to it. [85<ORG>D<ORG>F; 87G<ORG><ORG>; 88A<ORG>B] 69 (a)In the present case, in respect of the counter complaint, the receipt was produced by the appellant before the police, and formed part of the record of the case which went to the Chief Presidency Magistrate along with the police report. It could not however be said that because the investigation was ordered by the Chief Presidency Magistrate under s.156(3), Cr. P.C. the investigation was part of the proceedings in his Court. [86E<ORG>G] (i) Section 156(3) expressly states that an investigation ordered by a Magistrate would be an investigation made by a police officer in his statutory right under sub<ORG>sections (1) and (2). <ORG>hat being so, once an investigation by the police is ordered by the Magistrate, he cannot place any limitations on, or direct the officer conducting it as to how to conduct it. It cannot be said that the police officer acting under s.156(3) was a delegate of the Magistrate or that the investigation by him was an investigation by or on behalf of the Magistrate. [86B<ORG>F; 87A<ORG>B] In re : <NAME>, (1907) 9 Bom. L.R.737 and King Emperor v. <NAME>. 71 I.A. 203, referred to. (ii)Before a Magistrate can be said to have taken congizance of an offenceunder s. 190(1) (a), Cr.P.C . he must have not only applied his mind tothe contents of the complaint presented to him, but must have done sofor the purpose of proceeding under s. 200 and the following sections. In the present case, the Chief Presidency Magistrate applied his mind only for the purpose of directing police investigation under s. 156(3) . <ORG>herefore, the Chief Presidencey Magistrate having not even taken cognizance of the offence, no proceeding could be said to have commenced before him of which the inquiry by the police could be said to be part and parcel. [86F<ORG> <CI<ORG>A<ORG>ION> .  S.C.R. 312 and <CI<ORG>A<ORG>ION> ,  5 S.C.R. 37, referred to. (b)(i) It is only the copies of the receipt and the indemnity bond, that were annexed to the affidavit in the execution proceeding that could be said to have been produced in proceedings before <ORG> and not the originals, which were only shown to the Counsel of <ORG><ORG> <ORG>. [87B<ORG>D] (ii)Moreover, assuming the receipt was produced before <ORG>, the offence charged against the appellant is not its user in the proceedings before <ORG>, but its production and user by the appellant during the investigation by the police in the appellant's complaint against the respondents. [87E<ORG>F] (iii) It could not be said that once a document alleged to be forged is used in any proceeding before any court at any time; s.195(1) (C), Cr. P.C. would at once be attracted and would he a bar against a complaint by a party complaining of its fraudulent user in any later proceeding because, if that were so, a party to the proceeding before a court can go on producing such a document ad seriatim in several subsequent proceedings with impunity, if the Court before which it was first produced thinks it inexpedient to file a complaint. <ORG>hat clause only says that in respect of any of the offences enumerated there, no congnizance can be taken of a private complaint when such offence is said to have been committed by a party to a proceeding in a court in respect of a docu<ORG> ment produced or tendered in evidence in that proceeding except on a ,complaint by such court. [88C<ORG>G] 7 0 JUDGMEN<ORG>:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 213 and 214 of 1968.

Appeals by special leave from the judgment and orders dated December 7, 1967 of <ORG> in Criminal Revisions Nos. 304 and 291 of 1967.

<NAME>, <NAME> and <NAME>, for the appellant (in both the appeals).

<NAME>, <NAME> and <NAME>, for respondent No. 2 (in Cr. A. No. 213 of 1968 and for respondents Nos. 2 and 3 (in Cr. A. No. 21th of 1968). <NAME>, <NAME>, for respondent No. 1 tin Cr. A. No. 213 of 1968).

<NAME>, <NAME>, <NAME>, for respondent No. 1 (in Cr. A. No. 214 of 1968.).

The Judgment of <ORG> & <NAME> was delivered by <NAME>, J., <NAME>, J., gave a dissenting opinion. <NAME>, J. These two appeals, by special leave, arise out of two complaints, both of which were filed in respect of the same transaction and are therefore disposed of by a common judgment.

Appeal No. 214 of 1968 is against the judgment of <ORG> dismissing, the complaint filed by the appellant on January 5, 1966 under secs. 120B, 406 and 420 of the Penal Code against respondents 2 to 5, who are the directors' and the secretary of <ORG> <ORG> (hereinafter referred to as the company). The case of the appellant in the said complaint may be stated as follows :

At the material time, the appellant, one <NAME> and <NAME> were the liquidators of <ORG> (in voluntary liquidation) hereinafter referred to as <ORG>). At all material times <ORG> was the registered owner of 51 % of the shares of the company and as much was ordinarily entitled to have the control and management of that company. These 51 % shares numbered 2295 shares of the face value of Rs. 1.000 each. Out of these, 707 shares were in possession of the company. Respondent 5, <NAME>, owned the balance of 49% shares. In or about 1961, <ORG> agreed to sell and <NAME> agreed to purchase the said 51% shares. <NAME> filed a suit being Suit No. 600 of 1961 against <ORG> in <ORG> for specific performance of the said agreement.

7 1 <ORG> decreed the suit directing <ORG> to deliver the said 2295 shares against payment of Rs. 86 lacs and odd and issued until delivery of the said shares was made to <ORG>, aninjunction restraining <ORG> from exercising its rights as holder of those 51% shares. The curious result of the said induction was that <ORG> could get control and management of the company with the 49% shares held by him without having to pay the price of the said 51% shares, until <ORG> gave delivery of all those 2295 shares, out of which, as aforesaid, 707 shares were in the custody of the company. The problem for <ORG> was how to get back those 707 shares from the company so as to be able to deliver all those 2295 shares and obtain payment against such delivery of Rs. 86 lacs and odd from <ORG>. The said S. <NAME>, who was then residing in England, came to India in or about May 1965. According to the complaint,<NAME>, accompanied by one <NAME>, went to the office of the company on May 27, 1965, and upon his request for the said 707 share certificates, obtained from respondent 2(D.M.Jaffray) the- said share certificates. <NAME> thereupon issued areceipt for those share certificates and also executed an indemnity bond in favour of the company against any possible claims which <ORG> might make in respect of those 707 share certificates. By the said bond the liquidators of <ORG> indemnified the, company to the extent of Rs. 53 lacs said to have been paid by that company by way of taxes for the <NAME> family, undertook to assist that company to recover that sum from the estates of that family and furthermore to produce the said 707 share certificates whenever required for delivery to <ORG> in terms of the said decree and to indemnify any claim which might arise as a result of delivery thereof to <NAME>. It is clear that once those 707 share certificates, were handed over to <ORG>, <ORG> would, in terms of the said decree, be able to deliver to <ORG> all the said 2295 shares and <ORG> would have to take delivery of them against payment of Rs. 86 lacs and odd.

The receipt (document 2) which <ORG> executed at the time recorded the fact of the said 707 share certificates having been received by him from <ORG>, and their particulars and numbers. The prosecution case was that as <ORG> had, then a luncheon engagement he did not wish to carry those scripts together with the corresponding bank transfer forms endorsed by the company, and therefore, gave them back to <ORG> to hold them on his behalf until called for them later in the day. He thereupon took <ORG>'s endorsement, viz., "shares with me" under which <ORG> affixed his signature. There was no dispute that the said endorsement and the signature underneath it were in the handwriting of <ORG>. In order to clarify how the said share certificates remained with <ORG>, <NAME> also wrote over the said endorsement the following:

"Dear Mr. <NAME>, I do not want to carry these with me, hence leaving meantime with you personally for delivery to me later."

Were this writing to be genuine, the word 'personally' therein would mean safe custoday of <ORG> in his personal capacity as distinguished from that of the company. Later that day, on the instructions of <ORG>, <ORG>, the Solictors of <ORG>, sent their assistant, one <NAME>, with their own letter as also a letter addressed by <ORG> to <ORG> with a request to hand over to <NAME> those 707 share certificates. <ORG> declined to do so stating that he would send them to <ORG> through <ORG>, the Company's solicitors. Since the said share certificates were not sent to them, <ORG>, by their letter, dated August 31, 1965 to the appellant, recorded the fact of their having sent the said <NAME> to <ORG>, the refusal of <ORG> to deliver the said share certificates to <NAME> and his assurance to hand them over through the Company's solicitors, and lastly, of their having not received so far the said share certificates either from <ORG>, or the Company's solicitors. In the meantime <ORG> went to England and the rest of the directors of the company, when demands for the said shares were made, replied that they would wait for <ORG>'s instructions on his return to India. This position appears to emerge from <ORG>'s letter dated November 29, 1965 to the appellant. In that letter <ORG>, repeated that <ORG> had the said shares for safe custody on his behalf, that <ORG> was withholding delivery thereof at the instance of <ORG> and the other directors, that <ORG> thereby committed breach of trust and that the appellant should adopt criminal proceedings against <ORG> and t he other directors.

The appellant's case was that it was at the instance of <ORG> that <ORG> withheld delivery of those share certificates with a view to prevent <ORG> from delivering all the said 2295 shares and compelling <ORG> to pay Rs. 86 lacs and odd against such delivery. It is clear that so long as the liquidators could not deliver all the 2295 shares, <ORG> could not be called upon to pay the said price, and <ORG> in the meantime could continue to have the control of the <ORG>, although he had only the minority holding of 49% shares and thus keep <ORG> at bay pre- venting it by virtue of the said injunction from exercising its rights in respect of its 51 % shares as against 49% held by <ORG>. It was in this background that on January 5, 1966 the appellant filed a complaint before the Chief Presidency Magistrate against <ORG>, <NAME> and <ORG>, the directors of the <ORG> and <NAME>, its secretary. Para 3 of the said complaint set out the delivery of the said 707 share certificates with the corresponding blank transfer deeds therefore by <ORG> to <NAME>, his having executed the receipt in favour of the <ORG>, <ORG> having made the said endorsement and <NAME> thereafter having written the said note partly by the side of and partly over the said endorsement. Para 9 of the complaint read as follows:

"That your petitioner has come to know that accused No. 1 (<NAME>) has parted custody of the said 707 shares illegally and wrongfully to <ORG>, Calcutta in conspiracy with the other three accused connected with <ORG> to deprive your petitioner from the physical custody of the said 707 share certificates and the blank transfer deeds with the sole object of defeating your petitioner's right to recover Rs. 86,60,000 from accused No. 4, <NAME> against physical delivery of 2,295 shares of <ORG>, Calcutta."

The Chief Presidency Magistrate directed, under sec. 156(3) of the Code of Criminal Procedure, the police to make an inquiry. In the course of that inquiry the police seized the said 707 share certificates from <NAME>. It would appear that although the appellant requested the investigating officer to examine the said <NAME> and <NAME>, who, it was said, was prepared to come to India for that purpose, that officer declined to do so. The police thereafter made their report recommending discharge of the accused on the ground that the complaint filed by the appel- lant was false, that the said receipt was a forged document and sought permission of the Magistrate to take action against the appellant. On May 7, 1966, the appellant filed a protest application requesting the Chief Presidency Magistrate to take the matter out of the hands of the police and to order a judicial inquiry. Thereupon the Chief Presidency Magistrate directed the Presidency Magistrate, <ORG>, Calcutta to hold such an inquiry. The proceedings thereupon went to that magistrate before whom the appellant and his witnesses <NAME> and <NAME> gave their depositions. <NAME> was not examined as he was in England, but an affidavit by him was produced before the Magistrate.

In his deposition before the Magistrate the appellant pro- duced the said receipt (marked document 2) and the said 7 4 indemnity bond (marked document 5) and stated on oath that the receipt was in the handwriting of <NAME>, that the words "shares with me" marked '2' and the signature thereunder were in the handwriting of <NAME>, and that the indemnity bond was in <NAME>'s handwriting and which he had given to the witness for his signature He also deposed that he had gone to <NAME> on that very day, that is, May 27, 1965, with the receipt, the said bondand a letter from <NAME> to <NAME> and had demanded from himthe said 707 share certificates and had said at the time that he was agreeable to sign the said bond as the other liquidator of <ORG>, that <NAME> thereupon showed the said sharecertificates to him and assured him that he would hand them overto <ORG> <NAME> & <NAME>, and that on that assurance he affixed his signature on the indemnity bond and told <NAME> that he would send his solicitors to take delivery of the said share certificates His evidence further was that thereafter, he returned back to his hotel where <NAME> was waiting. <NAME> inquired of him as to why he wanted those share certificates to which he replied that he wanted them together with the rest of the share certificates to be delivered to him, against payment of Rs. 86 lacs, whereupon <NAME> threatened that he would see that the said 707 share certificates were not handed over to him. Faced with this threat, he called on his solicitors and instructed them to call for those share certificates immediately. <ORG> <NAME> and <NAME> sent their assistant with their own letter and the letter written by <NAME>, with whom he, (the appellant) also went. The assistant handed over those letters to <NAME> and asked for the delivery of the share certificates. <NAME> pleaded that it was late in the day, that the office was closed and its key was not with him, but promised that he would send them to his solicitors <ORG> Orr, <ORG> The share certificates were, however, not sent and were later seized by the police from the custody, not of <NAME>, but of <NAME> to, whom <NAME> must have handed them over in his capacity as the secretary of the <ORG>.

To the same effect was the deposition of <NA<ORG>E>, the assist-ant of <ORG> with 'Whom the appellant had on that day approached <NA<ORG>E>. <NA<ORG>E>, who was said to have accompanied <ORG> earlier in the day, deposed that both <NA<ORG>E> and <NA<ORG>E> were, present when they went to the office of <ORG>, that on <ORG> asking for the shares, the two directors wanted him to execute the indemnity bond, that <ORG> signed the bond, that as the two directors wanted the signature of <NA<ORG>E> also, <ORG> kept the bond with him so as to secure <NA<ORG>E>'s signature, that <ORG> then left, leaving the said certificates with <NA<ORG>E> to be sent later to <ORG>. He 'also deposed to the fact of <ORG> having written out the receipt in his presence and <NA<ORG>E> making the said endorsement and then <ORG> writing on the receipt the reason why he left the said shares with <NA<ORG>E>.

<NAME> did not come to India to give his deposition, but sent in affidavit giving his version as to the delivery of the said share certificates to him by <NAME>, his having been accompanied by <NAME> at that time, his having executed the said receipt and 'he indemnity bond, his having then entrusted the said shares to <NAME>, and <NAME> having assured him to keep them in his personal custody and to hand them over later to <ORG>, & <NAME>, his having given a note addressed to <NAME> to deliver he said share certificates to the appellant, and lastly, <NAME> having told him on telephone that as the representative of <ORG> & <NAME> had arrived late he had not been able to hand over the said. share certificates and once again assuring him that he would deliver them to <ORG> & <NAME>.

At that stage of the inquiry, when no process bad yet <ORG>en issued, <NAME> could not give his version. But his version as to what took place on May 27, 1965 is avail-able from his deposition in the counter-complaint he lodged against <NAME>. That complaint is the subject matter of Criminal Appeal No,. 213 of 1968 heard along with this appeal. His case in that deposition, was that the said 707 share certificates were lying with the company as the company claimed a lien over them in respect of a sub of Rs. 53 lacs having <ORG>en paid by it to the Income Tax authorities in India for and on <ORG>half of <ORG> and for which the company had filed a suit and had a receiver appointed' to 'obtain possession of them. There is, however, no doubt that ,these share certificates were with the company on May 27, 1965, for, even according to affray, when <ORG> saw him on that day complaining that the company had parted with those share certificates to <NAME>, he produced them <ORG>fore <ORG> for his inspection. According to him, <ORG> at that stage brought out a typed receipt "to show that <ORG> had inspected the shares". His case was that he objected to the word "received" in that receipt and wanted instead the word "inspected", but. <ORG> declined to alter the receipt and thereupon <ORG> wrote out the words "shares with me" with a view to clarify that the shard certificates were still in his custody and not with <NAME>. He denied his having delivered them to <ORG>, or <ORG> having entrusted them to him, or his having promised to hand them over to <ORG> <ORG>, and alleged that <NAME> later on made an interpolation marked (3) in the said receipt to give a false twist to hi said endorsement and to show that the said certificates were entrusted to 'him by <ORG>. Since the share certificates remained all along in the possession of the company, the police. seized them, 7 6 Later on from <NAME>. We may note that <NAME> in his deposition did not mention the indemnity bond though it had <ORG>en ,executed at the same time when the said receipt was executed.

The Presidency Magistrate, <ORG>, held by his order ,dated January 5, 1967 that the appellant had failed to make out a prima facie case, and he could not, therefore, recommend ,the issue of process. His order records two main reasons why he thought that no prima facie case was made out. The first was that though, according to him, the receipt, if believed, would establish entrustment, it could not be given "even its face value", since <NAME>, the central figure, had failed to give evidence. Though in England at that time, he could have flown to India for the purpose of giving evidence. He discarded his affidavit' as acceptance of such evidence was not permissible either under sec. 60 or sec. 32 of the Evidence Act . He also discarded the evidence of <NAME> on the ground that sec. 60 required the ,best evidence and such best evidence would have been that of <NAME>, had he been examined. Besides, <NAME>'s evidence, according to him, contained "some points of obvious absurdities", in that <NAME>'s insistence that an indemnity bond should be Signed by both <NAME> and <NAME> indicated that he could not have parted with the share certificates before <NAME> had signed 'that bond. The case together with the report went back to the- Chief 'Presidency Magistrate. By his order dated February 15, 1967, "the Chief Presidency Magistrate held that "it cannot be said that the share scripts in question were entrusted to accused No. and accordingly therefore the suggested charges Cannot be brought against any of the accused persons". The reasons he gave for his order were: (1) that though entrustment of share certificates, was stated in para 5 of the complaint, it was no where stated that it was done on the strength of the receipt, (2) that the receipt was introduced in the case "in a curious way", in that, it was brought on record by <NAME>, who was not present either at the time when <NAME> wrote out the portion marked (3) in the receipt, or when he entrusted the said share certificates to <NAME>, and that he (<NAME>) had "very carefully avoided that issue in his statement", and (4) that though <NAME> had the ,,opportunity to examine <NAME>, he failed to do so. Reason No. I was actually incorrect. Para 3 of the com- plaint, dated January 5, 1966 clearly asserts that <NAME> en- trusted the said share certificates to <NAME> and to record that entrustment wrote the note [portion marked (3) in the receipt and that <NAME> also for that purpose made his endorsement that 'the said share certificates were with him. Reason No. 2 is understandable. It is difficult to appreciate how the Magistrate could remark that <NAME> either introduced the receipt "in a curious way" or that he "avoided the issue carefully Ad mittedly, <NAME> was not present at the time of the execution of the receipt or the alleged entrustment of the share certificates to affray. Obviously, he could not depose to those two facts from his personal knowledge. There was accordingly no question of his avoiding the issue. These observations, therefore, could not have been justifiably made. As for the third reason, <NAME> was, no doubt not examined. The question is whether at that preliminary stage when the only consideration was whether a prima facie case of entrustment was made out or not, it was necessary for <NAME> to be called from England to give evidence ? Besides examining himself, the appellant had examined <NAME>, who claimed to be an eye-witness to the delivery of the said share certificates to <NAME> and <NAME>'s entrustment of them to, <NAME>, the execution of the receipt and the bond by <NAME>, and finally, <NAME>'s assurance to hand them over later when called for. Strangely, the learned Magistrate did not discuss <NAME>'s evidence, nor the two documents nor the evidence of <NAME>, nor the letter written by M/s <NAME> & Morgan on that very day to <NAME> of their not having been given the share certificates by <NAME>. The revision application filed by the appellant against the order of dismissal was rejected by <ORG>. The High court gave two grounds for dismissing that application : firstly, the failure of the complainant to explain how the said 707 share certificates got into possession of the <ORG>, which failure made the story of <NAME> about delivery to him and entrustment by him to <NAME> of the said share certificates "open to criticism"; secondly, his failure to explain the reasons for furnishing, the indemnity bond on behalf of <ORG>. <ORG> was of the view that these two circumstances were "the most unusual cercuinstances which could be inconsistent with the prosecution story of entrustment and of criminal misappropriation and cheating". It noted the omission to examine <NAME> and also the refusal by the Magistrate to consider <NAME>'s affidavit. According to <ORG>, however, this was "not an important aspect of the case. The really important aspect are (sic) provided by the two most unusual circumstances that I have referred to above. Unless those circumstances could be sufficiently explained to the satisfaction of the court, no process could be issued. And those circumstances were not explained." It is clear from these remarks that unlike the Magistrate, <ORG> did not attach much importance to the omission to examine <NAME> although he was said to be the author of the entrustment. what appears to have mainly weighed with <ORG> were the "two most unusual circumstances", namely the omission to explain the, initial possess-ion of the said share ,certificates by the <ORG> and the omission to explain why the indemnity bond had to be executed. With respect to <ORG>, the fact that the said 70' ,share certificates were initially with the <ORG> was never in ,issue between the parties. The issue between them was whether on May 27, 1965 <NAME> and <NAME> had delivered them to <NAME>, and whether <NAME>, in his turn had handed them over to <NAME>'s personal custody to be returned to him later on that day. Therefore, the question as to, bow and in what circum,stances the said share certificates were in possession of the <ORG> was totally irrelevant. Equally irrelevant were the reason why the indemnity bond was executed first by <NAME> and the by the appellant. In any case, the reasons for executing it were not. Par to seek. The <ORG> claimed a lien on those share ,.Certificates on account of its having satisfied the tax liabilities of <NAME> family as recited in the bond itself. As further recited in the bond, <ORG> also claimed those shares by virtue of the ,said decree in his favour. According to the appellant, <NAME> and <NAME>, therefore, insisted that, the liquidators of <ORG> should execute the said bond to cover the company against any risk arising from the said claims. Besides, there was no question of the appellant having to explain how the said share, certificates were in possession of. the company, for, on that aspect the. parties were never at variance. So far as the bond was concerned, both the appellant and wit. <NAME> had deposed that it had been executed at the insistence of <NAME> and <NAME>. Therefore, these two circumstances, the failure to explain ,which <ORG> characterised as the most unusual circumstances, were on record and since the parties were not at issue ,on the first and the bond itself recited the reasons for its execution, there was no question of the appellant and his witnesses having failed to explain them.

Under sec. 190 of the Code of Criminal Procedure, a magis- Irate can take cognizance of an offence, either on receiving a ,complaint or on a police report or on information' otherwise received. Where a complaint is presented before 'him, he can under sec. 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses. The object of such examination is to ascertain whether there is prima facie case 'against the person accused of the offence in the comptaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find ouwhether there is or not sufficient ground for proceeding. Under sec. 202, a magistrate, on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct an inquiry lo be made by a magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. Under sec. 203, he may dismiss the complaint; if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under sec. 202, there is in his judgment "no sufficient ground for proceeding". The words 'sufficient ground used also in sec. 209 have been construed to mean ,the satisfaction that a prima faice case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction. [see <CITATION> (1)]. In <NAME> v. Ghadigaonkar(2) this Court considered the scheme of sees. 200 to 203 and held that ,he inquiry envisaged there is for ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. The section does not say that a regular trial of adjudging the truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Sec. 203 consists of two parts. The first part lays down the materials which the magistrate must consider, and the second part says that if after considering those materials there is in-his judgment no sufficient ground for proceeding, 'he may dismiss the complaint. <CITATION> ,(1) where dismissal of a complaint by the Magistrate at the stage of sec. 202 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (p. 653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate form at the appropriate stage and issue of a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is selfcontradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. In a revision against such a refusal, <ORG> also has to apply the same test. The question, therefore, is whether while apply- ing this test the Chief Presidency Magistrate was right in refusing process and <ORG> in revision could confirm such a refusal.

(1)[1958] S.C.R. 618.

(3) [1964] 1 S.C.R. 639.

(2) [1961] 1 S.C.R. 1.

8 0 As earlier stated, there were before the Magistrate, besides the evidence of the appellant and wit. <NAME>, who claimed to be an eye-witness, the receipt and the indemnity bond. Over' and above this, there was the evidence of <NAME>, who had gone to <ORG> to obtain the share certificates armed with <ORG>'s letter and the letter of <ORG> <NAME> & Morgan which prima facie supported the case of entrustment. The receipt prima facie showed that <ORG> at first 'received' the share certificates from <ORG> and the endorsement thereunder admittedly written by <ORG>, namely, "shares with me", seemed to indicate that <ORG>, as the complaint alleged, had left them with <ORG> to be subsequently handed over to <ORG> <NAME> & Morgan on behalf of <ORG>. The evidence of <NAME> and <NAME> was that <ORG> had demanded an indemnity bond, that the bond was signed first by <ORG> and later at his instance by <NAME>. Prima facie, such a bond containing both indemnity and undertakings could not have been executed unless the share certificates had been delivered to <ORG> as stated in the receipt. Once It was shown through these two documents that the share certificates were delivered, the endorsement of <ORG> below the receipt, namely, "shares with me" was capable of being construed as <ORG> having, left the share certificates with <ORG> lo be handed over to him or on his behalf when called for.

As against the case of entrustment, <NAME>'s case, as set out earlier, was that the word 'receive& in the receipt was wrongly used by <ORG> and that he had insisted that <ORG> should use the word 'inspected', for, he had allowed <ORG> the inspection of the share certificates only and had not delivered them to him and made the said endorsement to make that position clear. That undoubtedly was his defence. But reading the two documents one is bound to ask himself whether <ORG> and <NAME> were likely to execute the bond if <ORG> had merely inspected and not received the share certificates. It would also prima facie appear that if <NAME> had only given their inspection, he would not have allowed <ORG> to prepare the receipt in the words in which it was couched. In any event, with the word 'received' in it, he would not have written out the endorsement which was capable of showing that the shares were with him because after executing the receipt <ORG> had left them in his personal custody.

In support of <ORG> order counsel for the respon- dents argued that there was no reference of the receipt in the protest application, dated May 7, 1966, that likewise, there was no reference therein of the indemnity bond, that there were contradictions in the versions of <NAME> and <NAME> as to when the appellant signed that bond, that the said share certificates were tinder attachment, and therefore, <ORG>, was not likely to deliver them to <NAME>, that <NAME> did not mention entrustment in his evidence, that the letter of <NAME> to <ORG> said to have been carried by <NAME> when he went to take delivery of the said share certificates was not produced, and lastly, that though <NAME> had complained that the police had not given him an opportunity to examine <NAME>, he failed to produce him before the Magistrate, though he had both time and opportunity to do so. In addition, Mr. <NAME>, appearing for <ORG>, <NAME> and <NAME> argued that so far as <NAME> was concerned, there was no evidence against him except the bare allegation of conspiracy, that the,indemnity bond intrinsically contradicted the case of delivery of the shares to <NAME> and their entrustment to <ORG> inasmuch as according to that document delivery was to be made to <ORG> and not to, <NAME>, and finally, that the evidence at best showed that it was a case of promise to deliver and its breach and not one of entrustment and breach of trust. We refrain at this stage to express our views on these contentions lest such views might later on affect one party or the other. Nevertheless, we are bound to say that both the receipt and the indemnity bond, whether referred to in the protest application or not, were before the Magistrate and were marked by him as documents 2 and 5. They were also before <ORG>. Over and above these two documents, there was the evidence of <NAME>, <NAME> and <NAME>, according to which the two documents- were executed on May 27, 1965 when <NAME> went to the Company's office to obtain delivery of the said shares. It is true that <NAME> was not examined though, if examined, he would have been the principal witness. It is also true that his affidavit in his absence could not constitute admissible evidence. Despite that omission, there was evidence, both oral and documentary, supported by contemporaneous letters of <ORG>, demanding the said share certificates from <ORG> personally. It may be that much could be said on both the sides. But it was certainly not a case of there being no prima facie case or the evidence being so self- contradictory or intrinsically untrustworthy that process could properly be refused. This follows from the fact that neither the Chief Presidency Magistrate nor <ORG> expressed the view that the evidence, either of the appellant or of <NAME> or, of <NAME>, was false or intrinsically unbelievable. Indeed, both the Chief Presidency Magistrate and <ORG> founded their orders of dismissal mainly on the ground of omission to examine <NAME> without considering whether despite that omission there was other evidence on record which made out a sufficient ground for proceeding with the case. At the stage of sec. 202 7-L348Sup.C.I./73 inquiry what a complainant has to make out is such a sufficient ground. He need not necessarily produce at that stage all the evidence available to him. Merely because the appellant did not examine <NAME>, (however important he was) because that would have meant bringing him to India from England at considerable cost, could not be a ground for throwing out his complaint,, even though such of the other evidence he led was capable of making out a prima facie case.

There is no gainsaying that although respondent <NAME> held only minority shares, he was and continues to be in a position to control the management of <ORG> without having to pay the price of the rest of the shares by reason only of the said 707 share certificates being in possession of that company and therefore unavailable to <ORG> to deliver them to him. He had, therefore, sufficient interest, to say the least, to bring about such a position that <ORG> would not be in a position to deliver the said shares and he could continue to have control if the company without owning the majority shares and without paying for them. It was, therefore, not totally improbable that <NAME> had at first thought that the indemnity bond sufficiently safeguarded the interests of the company even against a possible plaint who <NAME> might make in respect of the said 707 shares, and therefore, delivered them to <ORG>. The evidence on record and the circumstances of the case would suggest that he probably changed his mind later on possibly at the instance of <NAME>, who, as aforesaid, was interested in withholding the deliver of the said 707 share certificates, and handed them over to <NAME> instead of to <ORG>. We mention these circumstances as possibilities only which might have to be considered at a later stage and not as our conclusions in these proceedings.

As regards respondent <NAME>, Mr. <NAME> drew our attention to an order dated April 10, 1967 by which the <ORG> discharged the rule against him. Mr. <NAME> argued that no separate special leave petition having been filed against that order, the appeal so far as <ORG> is concerned has to be dismissed. We find, however, that the appeal was against all the four accused, including <NAME>. The special leave granted on September 16, 1968 was also against all of them. The special leave Was against the judgment and order of the High <ORG> dated December 7, 1967 by which the revision filed by the appellant against all the four accused was rejected. That being so, and the special leave petition being against all the four accused, it must include the order dated April 10, 1967. There was, therefore, no necessity of a separate application for special leave against that order.

In our view. there was sufficient evidence before the Chief Presidency Magistrate which made out a prima facie case, and even if much could be said on 'both the sides, it was not a case of refusal of process.

For the reasons aforesaid the order of dismissal passed by the Chief Presidency Magistrate and its confirmation by <ORG> cannot be sustained. Consequently, <ORG>'s judgment and order has to be set aside and the appeal allowed. We direct the Chief Presidency Magistrate to issue the process and proceed with the case. SHELAT, J., This appeal arises out of the counter- complaint, dated June 18, 1966, filedby <NAME> charging offences under secs. 467, 471, 193, 474 and 109, Penal Code against appellant <NAME>, <NAME> and <NAME>. Though the complaint gives the impression as if the whole of the said receipt dated May 27, 1965 was alleged to be a fabricated document, <NAME>'s de-position before the Magistrate makes clear that according to him, the body of the receipt and his own endorsement thereon were genuine and that only the portion said to be falsely fabricated was the writing on it marked '3' purporting to be in <NAME>'s handwriting but written out subsequently by <NAME> with a view to give a false twist to the said endorsement. <NAME>'s case was that on May 27, 1965, when <NAME> came to the office of <ORG> he brought out 707 shares in question for <NAME>'s inspection, that those shares were never handed over by him or "received" by <NAME>, that he made the said endorsement only to show that they were in his possession but that with a view to make out a false case of entrustment to him by <NAME>, <NAME> subsequently wrote out the said portion marked '3'. <NAME> prayed in the complaint that the Chief Presidency Magistrate should direct police investigation under S. 156(3) of the Code of Criminal Procedure. However, on January 25, 1966, the Chief Presidency Magistrate directed judicial inquiry by the Presidency Magistrate, <ORG>, Calcutta. The Magistrate accordingly held an inquiry in which <NAME> gave, as aforesaid, his deposition. On January 5, 1967 the Magistrate reported that a prima facie case was made out and process should issue. The case together with the said report went back to the Chief Presidency Magistrate, who on the record of evidence before him accepted the said report and ordered issue of process but only against <NAME>. He also held that s. 195(1) (c) of the Code did not come in the way of <NAME> filing a private complaint as the said receipt alleged to be a false document was produced before the police during their investigation into the other complaint filed by <NAME> against <NAME> and others, which investigation was not a proceeding before any Magistrate. <NAME> thereupon filed a revision application before <ORG> for quashing the said order. The only argument urged in <ORG> on behalf of <NAME> was that the complaint by <NAME> was barred under s. 195 (1) (c) of the Code , as the alleged forged document, i.e., the receipt, had been produced in a judicial inquiry. <ORG> turned down the contention holding that the receipt was produced by <NAME> in the course of inquiry by the police ordered in his complaint under s. 156(3) of the Code and was then seized by them. There was thus, according to <ORG> no production of a fabricated document in a judicial proceeding, the document having been long ago produced before and seized by the police before a judicial inquiry was held in that case. The contention urged on behalf of <NAME> having thus been rejected. <ORG> dismissed the revision. It is this order which has been challenged in this appeal.

Mr. <NAME> for the appellant wanted to go into the merits of the case, but we prevented him from doing so, as the argu- ments before <ORG> were confined only to the question of the applicability of s. 195(1)(c) of the Code. Mr. <NAME> thereupon urged two contentions : (1) that though it was true that <NAME> had produced the said receipt (document 2) before the police in the course of investigation by them ordered by the Chief Presidency Magistrate under s. 156(3) of the Code in the matter of <NAME>'s complaint, those proceedings before the police were part and parcel of the proceedings before the Chief Presi- dency Magistrate and therefore production of the receipt there was production before the Magistrate; (2)) that even before that, the receipt had been produced before <ORG> and that having been done, it was <ORG> alone who could cause a complaint to be filed under s. 195(1) (c) of the Code and not <NAME>. According to Mr. <NAME>, after the decree in <ORG>'s suit No. 600 of 1961 was passed, <ORG> took out execution proceedings claiming therein that <ORG> should be made to hand over to the liquidators of <ORG> the said 707 share certificates to enable them to satisfy the said decree by delivering all the 2,295 shares (including the 707 shares in dispute) to <ORG> against payment of price thereof by <ORG>. Those proceedings were opposed by <ORG> on the ground that they did not lie against it as it was not a party to that suit. As 'against that contention, <NAME>, as one of the liquidators of <ORG>, filed a counter-affidavit claiming- entrustment of the said shares to <NAME> by <ORG> and annexed to that affidavit copies of the said receipt and the indemnity bond. It was during the hearing of that matter- that <NAME> showed the original of the receipt to counsel for <ORG> to satisfy him that the copy annexed to his affidavit was genuine. Counsel for the company thereupon inspected it and found the copy to be a correct copy. It would thus appear that what was produced 'before <ORG> was a copy of the said receipt, the original not having been "produced" before, the <ORG>, but was shown to counsel to prevent any contention that the copy was not a correct or genuine one. The question, therefore is whether on either of the two grounds urged by Mr. <NAME>, <NAME>'s complaint can be said to be barred by s. 195 (1) (c) of the Code .

The relevant part of sec. 195(1) provides no court shall shall take cognizance :

"(c) of any offence described in section 463 or punishableunder section 471 , section 475 or section 476 of thesame Code, when such offence is alleged to have, beencommitted by a party to any proceeding in any <ORG> in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such <ORG>, or of some other <ORG> to which such <ORG> is subordinate."

Cl. (c) falls into two parts. The first part provides that the offence in respect of which the complaint in question is filed must be one under s. 463 or 471 or 475 or 476 of the Penal Code . The second part provides that such an offence must be alleged to have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding. If both those requirements are there, then no court is to take cognizance of such an offence except on a complaint filed by such court or a court subordinate to it.

On the first limb, of Mr. <NAME>'s argument, the question arises whether <NAME> can be said to have "produced" or tendered in evidence the said receipt before, the Chief Presidency Magistrate ? there is no question that the receipt was ever tendered in evidence by <NAME>. It was produced by him before the police in the course of the investigation by them ordered by the Magistrate under s. 156(3) of the Code and was then seized by them. The receipt formed part of the record of The case which went to the Chief Presidency Magistrate together with the report of the police recommending discharge of <NAME> and others who were accused in that case of criminal breach of trust and cheating. But the contention of Mr. <NAME> was that though the receipt was not tendered in evidence, it was nevertheless 'produced', an expression which has a wide connotation. There Mr. <NAME> is right, for, a document can be said to have been produced in a court when it is not only produced, for the purpose of being tendered in evidence, but also for some other purpose. [cf. In re, <NAME>)] on the footing, therefore, that <NAME> 'produced' the receipt, the question still would be whether he produced it in a proceeding before a court. Mr. <NAME>'s argument was that it was produced in a proceeding before <ORG> 'because the investigation by the police was one ordered by him under s. 156(3) of the Code and therefore that investigation was part of the proceedings in his Court. Such a proposition does not appear to be correct. Firstly, the police authorities have under ss. 154 and 156 of the, Code a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority, [cf. King Emperor v. <NAME>)] and even the High Court has no inherent power under s. 561A of the Code to interfere with the exercise of that statutory power. It is true that the Chief Presidency Magistrate had under s. 156(3) ordered in the present case an investigation by the police. But once that was done, the inquiry by the polic e was of the same nature and character as the one which the police had the power to conduct under sub-secs. (1) and (2) of that section. Indeed sub sec. (3) expressly states that an investigation ordered by a Magistrate would be an investigation "as above-mentioned", i.e., an investigation made by a police officer in his statutory right under sub-sections (1) and (2). That being so, once an investigation by the police is_ordered by a magistrate, the magistrate cannot place any limitations on or direct the officer conducting it as to how to conduct it. Secondly, it is well settled that before a Magistrate can be said to have taken cognizance of an offences under s. 190(1) (a) of the Code , he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under s. 200 and the provisions following that section. But where he has applied his mind only for ordering an investigation under s. 156(3) or issuing a warrant for purposes of investigation. he, cannot be said to have taken cognizance of the offence. <CITATION> .(8); also <CITATION> (4) The Chief Presidency Magistrate having not even taken cognizance of the offence but having applied his mind for the purpose only of directing a police investigation under s. 156(3), no proceeding could be said to have commenced before him, of which the inquiry by the police could be said to be part and parcel. Further, it cannot be said that the police officer- acting under s. 156(3) was a delegate of the Chief Presidency Magistrate or that the (1)  9 Bom. L.R. 735. (2) 71 I.A. 203. (3)  S.C.R. 312, 320-21 (4)  5 S.C.R. 37.

investigation by him was an investigation 'by or on behalf of the, Magistrate. Production of the receipt by <NAME> in the course of such an investigation was therefore not production in a proceeding before the Chief Presidency Magistrate so as to attract the ban under s. 195 (1) (c). The first limb of Mr. <NAME>'s argument, therefore cannot be accepted.

In support of the second limb of his argument, Mr. <NAME> relied on the affidavit of <NAME>, the solicitor of <ORG>, dated March 26, 1969, according to which during the course of the said execution proceedings taken out by <NAME> he had produced in <ORG> the receipt and the said indemnity bond for inspection by counsel of <ORG> and <ORG> in the presence of <NAME> who also, along with counsel, inspected the two documents. Obviously, the originals of the receipt and the bond were produced in the <ORG> to satisfy counsel that copies of these documents annexed to the affidavit of <ORG> tallied with the originals and were correct. Since the copies were used as annexures to the affidavit, they certainly can be said to have been produced in the proceedings before the <ORG>. But it cannot be said that their originals were produced in those proceedings, since they were only shown to counsel for the limited purpose of satisfying them that the copies were correct copies. It was nobody's case that those copies were fabricated documents. <NAME>'s case was that it was part of the original receipt which was fabricated rendering the whole of it a false document. Apart from this difficulty, the offence charged against <NAME> in <NAME>'s complaint was not the user of the receipt in the proceedings before <ORG>, but its production and user by <NAME> during the investigation of <NAME>'s complaint by the police. To that Mr. <NAME>'s argument was that once a document alleged to be forged is used in any proceeding before any court at any time, s. 195 (1) (c) would at once be attracted and would be a bar against a complaint by a party complaining of its fraudulent user in any later proceeding. Such a proposition, in the first place, is not warranted by the language of cl. (c) of s. 195(1). That clause in clear terms says that in respect of any of the offences enumerated there, no cognizance can be taken of a private complaint when such offence is said to have been committed by a party to a proceeding in a court in respect of a document produced or tendered in evidence in that proceeding extent on a complaint by such court. The words "such court" mean the very court before which a party to a proceeding in that court has produced or tendered in evidence a document in respect of which the offence is alleged to have been committed. Cl. (c), in other words, means that it is that court before which there is a proceeding and a party to such a proceeding is said to have committed an offence in respect of a document produced or tendered in evidence by him, on whose complaint the offence can be taken cognizance of. The object and purpose of s. 195(1)(c) is that it is the court before which an offence is alleged to have been committed in respect of a document pro- duced in a proceeding before it 'by., a party to such proceeding, which should file or cause to be filed a complaint and not a private party.

Assuming, however, that <NAME> had produced-,the receipt, alleged to be a forged document, in the proceeding before <ORG>, a complaint in respect of that offence by or at the instance of <ORG> could be taken cognizance, of by the Magistrate. But no one moved <ORG> to do so in those proceedings and so such complaint was ever filed. In the second place, if we were to accept Mr., <NAME>'s proposition, it would have far reaching consequences which the legislature while en:acting clause

(c) could never have contemplated. if <ORG> alone could have filed or caused to be filed a complaint be-cause the document was at one time produced before, it, then no other court where it is produced subsequently can file a complaint even if the forged document is produced or tendered in evidence in a proceeding before it. If <ORG>, in the case stated above, were to consider it inexpedient to file a complaint, a party to a proceeding before <ORG> can go on producing ad seriatim that document in several subsequent proceedings in several different courts with complete impunity because <ORG> has in respect of the proceeding before it refrained from causing a complaint to be filed against that party. Surely, such a consequence could never have been con- templated when cl. (c) was enacted. The proper construction of that clause, therefore, is that when a party to a proceeding before any court produces or tenders in evidence a document in respect of which an offence, e.g., s. 471 read with s. 467 , is alleged to have been committed, it is that court before which the document is produced or tendered in evidence which can file a complaint regarding such an offence and a magistrate cannot take cognizance of such an offence except upon a complaint by such court or a court subordinate to it. On this construction ,the contention urged by Mr. <NAME> must fail.

In the result, the appeal fails and is dismissed. KHANNA, J.-I agree so far as criminal appeal No. 213 of 1968 is concerned. 1, however, express my inability to agree with the proposed judgment in criminal appeal No. 214 of 1968. In my. opinion, both the appeals should be dismissed.

<NAME> appellant is a co-liquidator along with <NAME> and <NAME> of <ORG> (in voluntary liquidation). On January 5, 1966 the appellant filed a complaint under sections 120B , 406 and 420 <ORG> in the court of Chief Presidency Magistrate Calcutta against four persons. Out of them the first two accused, <NAME> and <NAME>, were the directors of <ORG>, while <NAME> was the secretary of that company. The fourth accused was <NAME>. According to the appellant's allegation <ORG> was the registered holder of 51 per cent of shares of <ORG> <NAME> accused had option to purchase those shares for Rs. 86,60.000. On May 27, 1965 <NAME>, one of the liquidators of <ORG>, was stated to have received 707 ordinary share scrips, the details of which were given, of <ORG> from the directors of <ORG> According to the, appellant, <ORG> preferred not to carry those share scrips with him and entrusted them with. blank transfer deeds to <ORG> accused for safe custody. <ORG> thereafter asked the solicitors of his Company, <ORG>, to take delivery of the share scrips from <ORG>, but <ORG> accused on one pretext or the other declined to give the shares. <ORG> accused was further stated to have in violation of his trust and in conspiracy with the other accused disposed of 707 shares by delivering them illegally to <ORG> with the object of dishonestly converting them to the use and benefit of the accused persons and also with a view to defeat the appellant's right to recover Rs. 86,60,000 from <NAME> accused.

The above complaint was sent by the Chief Presidency Magis- trate to the police for investigation under sub-section (3) of section 156 of the Code of Criminal Procedure. The police registered a case and after investigation submitted a report that it was a false case. The complainant thereafter filed objections against the police report before the Chief Presidency Magistrate on May 7, 1966. The complaint was thereafter sent on June 18, 1966 to a Presidency Magistrate for judicial enquiry. In the course of that enquiry the appellant examined four witnesses. <NAME> (PW 1), <NAME> (PW 2), <NAME> appellant (PW 3) and <NAME> (PW 4). Affidavit of <NAME>, who was in the United Kingdom, was also filed. Reliance was also placed upon receipt dated May 27, 1965 which readsas follows :

Document-2 Document 2/1. Recived from <ORG>, Calcutta the following Shares Certificates covering 707 Ordinary Shares of <ORG>,

1. Share Certificate No. 19 fir 3 ordinary shares Nos. 1452, 1593 & 1594.

2. Share Certificate No. 28 for 695 ordinary shares Nos. 1601-2295.

3 Share Certificate No. 29 for 3 ordinary shares Nos. 1455. 1597 & 1598.

4. Share Certificate No. 75 for 3 ordinary shares Nos. 1453, 1595 & 1596

5. Share Certificate ND. 76 for 3 ordinary share Nos. 1454, 1599 & 1600 Sd/- S. Varma S. VARMA) Liquidator Hungerford Investment Trust Ltd.

Shares with me.

Sd/- D. N. Jaffray."

It may be stated that the above receipt also contains the following words :

"Dear Mr. <NAME>, I do not want to carry these with me. Hence leaving meantime with you personally for delivering to me later."

These words, according to a complaint filed by <NAME> were inserted subsequently and a criminal case under section 474 Indian Penal Code is pending against <NAME> appellant on that account. Criminal appeal No. 213 filed by <NAME> in respect of that prosecution has been disposed of separately today. Reliance by <NAME> was also placed upon the following indemnity bond " Indemnity & Warranty Bond dated 27-5 65 INDEMNITY & WARRANTY In consideration of handing over the 707 shares of <ORG> with blank transfers to <ORG>, as per original letter of <ORG>, dated the 9th December 1964 the Liquidators hereby indemnify <ORG>, Calcutta that they will have no objection to be enjoined with the old Liquidators and the Executors of the deceased <NAME> for the claim of approximately Rs. 53,00,000/- (Rupees fifty three lakhs), which has been paid by <ORG>, Calcutta by way of taxes for the <NAME> family, and furthermore the new Liquidators undertake that they will assist <ORG>, Calcutta in every way in the recovery of these amounts from the Estates of the <NAME> family and the old Liquidators of <ORG>

The new Liquidators further guarantee that they will cause these shares to be produced whenever required in terms of Suit 600 and without jeopardising the rights of Mr. <NAME> arising out of that decree.

Lastly, the Liquidators indemnify the Directors of <ORG>

<ORG>, Calcutta against any claims of tax authorities or any Government body and others should it arise by virtue of the delivery of these shares by them.

(Sd.) ILLEGIBLE Liquidators.

<ORG>"

Calcutta, 27th July, 1965 According to the complainant-appellant, the above indemnity bond also contains the following endorsement of <NAME> "Accepted For & On Behalf of Turner Morrison & Co. Ltd. Sd/- D. M. <NAME> Directors 27-5-65 The Presidency Magistrate in his report dated January 5, 1966 observed that no prima facie case of entrustment had been made out, Reference was made to the fact that <NAME>, who was the central figure, had not made any statement during the course of enquiry. <NAME>'s affidavit was held to be not admissible. The Chief Presidency Magistrate agreed with the Presidency Magistrate and dismissed the complaint. In revision <ORG> declined to interfere with the order of the Chief Presidency Magistrate. Reference was made by <ORG> also ;to the non-examination of <NAME> during the judicial enquiry.

Mr. <NAME> has contended in this Court on behalf of the appellant, that there is prima faice case to show that 707 ,hare scripts were handed over to <ORG> on May 27, 1965 and thereafter were entrusted by <ORG> to <ORG>. The refusal of <ORG> to make over those shares to the liquidators of <ORG> or their Solicitors, according to Mr. <NAME>, amounts to criminal breach of trust. The said offence, it is staated, has been committed by <ORG> in conspiracy with the other accused. The above stand has been controverted by Mr. <NAME> on behalf of the State of West Bengal as well as by Mr. <NAME> on behalf of <ORG>, <ORG> and <ORG> respondents.

After giving the matter my consideration, I am of the view that no prima facie case for entrustment of the share scripts in question to <ORG> accused has been proved. It is common case of the parties that the 707 share scripts question were before May 27, 1965 in the custody of <ORG> The case of the appellant is that on morning of May 27, 1965 <ORG> accompanied by Majumdar(PW 4) met <ORG> and <NAME> and asked for the delivery of 707 share scrips. Those 707 share scrips were then handed ,over to, <ORG> by <NAME> accused. <ORG> thereupon signed typed receipt reproduced above. As <ORG> had some luncheon appointment he did not want to carry the share scrips with himself. Share scrips were thereupon left with <ORG>. <ORG> then wrote on the receipt the words "Shares with me" and put his signature underneath. It is further the case of the appellant that the, indemnity bond dated May 27, 1965 was also executed by <ORG> and <NAME> petitioner and the same was accepted by <ORG> accused. In order to show the entrustment of shares to <ORG>, Mr. <NAME> has relied upon the affidavit of <ORG>. <ORG>, as stated earlier, did not appear in the course of the judicial enquiry which was held by the Presidency Magistrate. He, however, chose to send his affidavit from United Kingdom. The courts below declined to take that affidavit into consideration and. in my opinion, they were justified in doing so. According to section 510A of the Code of Criminal Procedure, the evidence ,of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this ,Code. This section was inserted by the Code of Criminal Procedure Amendment Act  and its object is to accelerate the disposal of cases. Provision is accordingly made for the filing of an affidavit of a witness whose evidence is of a formal character. If, however, the evidence of a person is not of a formal character, but goes to the very root of the matter as in the present case, no resort can be made to the provisions of the above section. It would appear from the resume of facts given above 'that the case of the petitioner is that the share,, scrips in question were before May 27, 1965 in the custody of <ORG> and were on the morning of May 27, 1965 handed over by <NAME> to <ORG> when <ORG> met <ORG> and <NAME> in the office of <ORG> It is further stated that <ORG> because of a luncheon appointment left those shares with <ORG>. <ORG>, in the circumstances, would have been the most important witness to depose, about the handing over of the share scrips to him by <NAME> and the entrustment of those share scrips immediately thereafter to <ORG>. <ORG> was not examined during the course of enquiry and this fact resulted in serious infirmity in the evidence adduced by the petitioner. Resort was accordingly had to the filing of the affidavit of <ORG>. As the evidence of <ORG> was not of a formal character, his affidavit could plainly be not admitted in evidence.

Reliance has then been placed by Mr. <NAME> on the statement of <NAME> PW who is alleged to have accompanied <NAME> when the latter not <NAME> and <NAME> in the office of <ORG> on the morning of May 27, 1965. The state- ment of <NAME> reads as under "I know Mr. <NAME> and Mr. <NAME>, and also Mr. <NAME> and also other accused persons.

On 27-5-65 I went to the office of Mr. <NAME> with Mr. <NAME>. <NAME> wanted and 2. Accused No. 1 agreed to deliver them back if an indemnity bond was signed. He signed a bond. He wanted also Mr. <NAME>'s signature on that bond. Document No. 5 is the copy of that bond. <NAME> also signed document 2/ 1. He did not take them. He left them with accused No. I to be sent through <ORG>. Accused No. I wrote document 2/2.

Mr. <NAME> writes document No. 2/3. Mr. <NAME> also signed the document No. 5 as we informed him of accused No. 1's request."

The above statement of <NAME>, in my opinion, belies the stand taken by the appellant that the share scrips were delivered to <ORG> and he thereafter entrusted them to <ORG>. According to the statement of <NAME>, <ORG> agreed to deliver the share scrips to <ORG> if an indemnity bond was executed. <ORG> then signed a bond but <ORG> wanted the signature of <NAME> also on the bond. As <NAME> was, admittedly not present with <ORG> at that time, the condition imposed by <ORG> for handing over of the share scrips to <ORG> was obviously not satisfied at that time. <NAME> has accordingly deposed that <ORG> did not take the share scrips and left them with <ORG> accused. It may be that the evidence of <NAME> may show that <ORG> was guilty of not honouring his assurance in so far as he declined to send share scrips to <ORG> after the indemnity bond had been signed by <NAME>, but it is difficult to hold on tile basis of statement of <NAME> that the share scrips in question were first delivered by <ORG> and <NAME> accused to <ORG> and were thereafter entrusted by <ORG> to <ORG>.

So far as <NAME> (PW 2) is concerned., his statement ,does not reveal entrustment of share scrips. According to this witness, he asked for 707 share scrips from affray but the latter declined to hand over those share scrips to the witness and stated ,that he would send them through the Solicitor. The demand of share scrips by the witness and the promise of <ORG> to send the share scrips to the Solicitor would not show that there had been earlier entrustment of the share scrips to <ORG>. On the con- trary, the demand could have been made even without the alleged entrustment of the share scrips. The same remarks also apply to letter dated May 27, 1965 sent by <ORG> to <ORG>. In that letter a demand was made for 707 share scrips and it was mentioned that indemnity bond had been executed on that account. What is significant, however, is that there was no reference in that letter to, any entrustment of the share scrips. Reference has been made by, Mr. <NAME> to civil litigation in respect of the share scrips. The said litigation had admittedly nothing to do with the alleged entrustment of share scrips in ,question with which we are concerned in the present case. No help can consequently be derived from the decision in the civil case.

Our attention was also invited to the statement dated Novem- ber 14, 1966 made by <NAME> in his case against <NAME> and others under section 474 Indian Penal Code. It is, however, open to question whether the said statement of <NAME> can be utilised in this case when that statement is not a part of the record of this case. No process has so far been issued to <NAME> and his statement has not been recorded in this case. Assuming, for the sake of argument, that the statement of <NAME> in the other case can be referred to in the present case, the statement can be of no avail to the appellant because there is no indication in the statement of any entrustment of the share scrips.

The next piece of evidence relied upon by Mr. <NAME> is receipt dated May 27, 1965 which has been reproduced above. According to this document, <ORG> issued the receipt about his having received the 707 share scrips in question. The document also bears the writing of <ORG> that the shares were with him. If shares remained with <ORG>, the occasion of <ORG> issuing a receipt in respect of those shares could not arise. The receipt in question is of an ambiguous character and, in the absence of any oral evidence, it is difficult to infer from the receipt that the shares in question were first received by <ORG> and thereafter were entrusted by <ORG> to <ORG>. The best person to explain what seems to be an inconsistency in the receipt between the writing of <ORG> and the endorsement of <ORG> was <ORG> himself. <ORG>, as stated above, was not examined as a witness. The other person who was present at that time was <NAME> and the statement of <NAME> goes against the stand taken by the appellant about the delivery of share scrips to <ORG> and the entrustment of those share scrips thereafter to <ORG>.

Lastly, reliance has been placed upon indemnity bond dated May 27, 1965 which has been reproduced above. There is nothing in the indemnity bond to show that the share scrips were handed over to <ORG>. On the contrary, the indemnity bond according to its plain language was executed because of the. contemplated handing over of the share scrips to <ORG>. It seems that it was because of the non-mention of the handing over of the share scrips to <ORG> in the indemnity bond that there was no reference to the said bond in the complaint filed by the appellant. An enquiry or investigation is ordered under section 202 of the Code of Criminal Procedure by a magistrate on receipt of a complaint for the purpose of ascertaining the truth or falsehood of the complaint. If the magistrate before whom the complaint is made or to whom it has been transferred, after considering the statement on oath of. the complainant and his witnesses and the result of enquiry or investigation under section 202 is of the opinion that there is no sufficient cause for proceeding, he may for reasons to be recorded briefly, dismiss the complaint. If, on the contrary, the magistrate taking cognizance of the offence is of the. opinion that there is sufficient cause for proceeding, he should issue process against the accused in accordance with section 204 of the Code. It may be that the evidence which is required to be adduced by the complainant at that stage may not be sufficient for recording a finding of conviction, but that fact would not absolve the complainant who wants the magistrate to issue a process against the accused person from leading some credible evidence as may prima facie show the commission of the offence.

In the present case the Presidency Magistrate, the Chief Presidency Magistrate and the, <ORG> took the view that there was no sufficient cause for proceeding on the complaint filed by the appellant. I find no sufficient ground to interfere in this appeal under section 136 of the Constitution with the said concurrent finding. No credible material has, in my opinion, been brought on record by the appellant as may show prima facie that there was entrustment of the share scrips in question to the accused. The appeal consequently fails and is dismissed.

ORDER In view of the majority judgment, the appeal is allowed and <ORG> judgment and order is set aside. We direct the Chief Presidency Magistrate to issue the process and to proceed with the same.

V.P.S.


PETITIONER: C. PADMA & ORS. Vs. RESPONDENT: THE DY. SECRETARY TO THE GOVT.OF <NAME> & ORS. DATE OF JUDGMENT: 22/11/1996 BENCH: K. RAMASWAMY, G.T. PATTANAIK ACT: HEADNOTE: JUDGMENT:

O R D E R Leave granted.

We have heard the counsel on both sides.

This appeal by special leave arises from the judgment of <ORG> of <ORG>, made on June 29, 1993 in W.A. No.712/93.

The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 [for short, the "Act"] in G.O.R. No.1392 Industries dated October 17, 1962, total extent of 6 acres 41 cents of land in Madhavaram village Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasina by <ORG>, Madras. The acquisition proceedings had become final and possession of the land was taken on April 30, 1964. Pursuant to the agreement executed by the company, it was handed over to <ORG> which is a subsidiary of <ORG> It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in <ORG> dated March 24, 1971 in favour of another subsidiary company. <ORG>, the 5th respondent which is also another subsidiary of the Company had requested from two acres 75 cents of land; the same came to be assigned on lease hold basis by the <ORG> after resumption in terms of the agreement in <ORG> dated May 10, 1985. In <ORG> dated March 30, 1986, the same came to be approved of. Then the appellants challenged the original <ORG> dated October 17, 1962 contending that since the regional purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The Learned single Judge and <ORG> have held that the acquired land having already vested in the state, after receipt of the compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed.

<NAME>, learned senior counsel appearing for the appellants, contends that when by operation of Section 44-B read with Section 40 of the Act, the public purpose ceased to be existing, the acquisition became bad and therefore, the G.O. was bad in law. We find no force in the contention. It is seen that after the notification in G.O.R. 1392 dated October 17, 1962 was published, the acquisition proceeding had become final, the compensation was paid to the appellants' father and thereafter the lands stood vested in the <ORG>. In terms of the agreement as contemplated in Chapter VII of the Act, the company had delivered possession subject to the terms and conditions thereunder. It is seen that one of the conditions was that on cessation of the public purpose, the lands acquired would be surrendered to the <ORG>. In furtherance thereof, the lands came to be surrendered to the <ORG> for resumption. The lands then were allotted to <ORG>, 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which acquisition was made was substituted for another public purpose. Moreover, the question stood final settled 32 years ago and hence the writ petition cannot be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose.

Under these circumstances, we think that <ORG> was right in refusing to entertain the writ petition.

The appeal is accordingly dismissed. No costs.


CASE NO.: Writ Petition (civil) 184-195 of 1963 PETITIONER: SHIVACHARANA SINGH T.G. & ORS. RESPONDENT: STATE OF MYSORE DATE OF JUDGMENT: 13/03/1964 BENCH: P.B. GAJENDRAGADKAR (CJ) & K.N. WANCHOO & J.C. SHAH & N.R. AYYANGAR & S.M. SIKRI JUDGMENT:

JUDGMENT 1965 AIR (<ORG>) 280 The Judgment was delivered by <NAME>, <NAME> <NAME>, <NAME>This is a group of twelve petitions filed under Art. 32 of the Constitution, seeking to challenge the validity of note 1 to rule 285 of the Mysore civil services Rules, 1958 (hereinafter called the rules), framed by the Governor of Mysore in exercise of his powers under the proviso to Art. 309 of the Constitution. Though the facts in all these petitions are not exactly the same. The points raised by them are common, and so, we would mention the facts in Writ Petition No. 194 of 1963 and deal with that petition on the merits. Our decision in that petition will naturally govern the other writ petitions in this group. The petitioner, who was born on May 17, 1914, joined service in <ORG> of the former State of Mysore on November 28, 1934. In 1939 he was promoted as sub-inspector of police and in 1948, he became a police inspector. On July 31, 1961 he was served with a notice issued by <ORG> informing him that <ORG> considered it was necessary in the public interest to retire him from service under note 1 to rule 285 of the rules and notice was accordingly given to him intimating to him that he will be retired as from November 15, 1961. The petitioner contends that under rule 95(a) he was entitled to remain in service until he completed 55 years of age which means that he would have retired in normal course on May 17, 1969. Since the notice served on him by <ORG> under the impugned note to rule 285 prematurely retires him, he contends that the said order as to premature retirement is invalid, because it purports to have been passed in exercise of the powers conferred on the <ORG> under note 1 to rule 285 and this latter note is constitutionally invalid. It appears that after the notice was served on the petitioner, he made a representation to the <ORG> through proper channel. In this representation he urged that the action which the <ORG> intended to take against him was unjust and illegal and he pleaded that he had a very good record of service and did not deserve to have his service curtailed by nearly eight years by asking him to retire prematurely as from November 15, 1961. The <ORG>, however, was not impressed by the plea made by the petitioner and on November 14, 1961 a final order was passed terminating the petitioner's service from November 15, 1961. That, in brief, is the background of the present petition.Rule 95(a) of the rules undoubtedly provides that the date of superannuation of a <ORG> servant is the date on which he attains the age of 55 years; and it authorizes the <ORG> to retain the <ORG> servant in service even after the date of superannuation, if the said servant is physically fit and if the continuance of the said <ORG> servant in service is found to be on public grounds. In such a case the grounds of public interest had to be mentioned in the order and the servant may be continued until he attains the age of 60 years.

Rule 285 deals with retiring pension and it provides that a retiring pension is granted to a <ORG> servant who is permitted to retire after completing qualifying service for thirty years or such less time as may, for any special class of <ORG> servants, be prescribed. Note 1 to this rule provides inter alia that <ORG> may, in special cases, require any <ORG> servant to retire any time after he has completed 25 years' qualifying service or on attaining 50 years of age if such retirement is considered necessary in the public interest, provided that the appropriate authority shall give in this behalf a notice in writing to the <ORG> servant at least three months before the date on which he is required to retire. The note further provides that a <ORG> servant who retires or is retired, only in the manner indicated above, shall be granted a retiring pension not exceeding such proportion of average emoluments and subject to such maximum limits as are specified in Chap. XIX It would thus be clear that though the normal age of retirement under rule 95(a) is 55 years, under rule 285 it is competent to the <ORG> to retire, compulsorily, a <ORG> servant prematurely, if it is thought that such premature retirement is necessary in the public interest. This power can, however, be exercised only in cases where the <ORG> servant has completed 25 years' qualifying service or has attained 50 years of age. In other words, ordinarily retirement by superannuation occurs after attaining 55 years or completing 30 years' service, while premature retirement can be forced on the <ORG> servant if he has either completed 25 years of service or has attained 50 years of age. In the case of premature compulsory retirement, the <ORG> servant is entitled to pension as indicated in note 1 to rule 285.Sri <NAME> contends that this rule is invalid, because it contravenes Art. 14 as well as Art. 16(1) of the Constitution. In our opinion, this contention can no longer be entertained, because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of rules 148(3) and 149(3) contained in the Indian Railway Establishment Code in Moti Ram Deka v. <ORG>-Civil Appeals Nos. 711 to 714 of 1962 and 837 to 839 of 1963, dated 5 December 1963 1964 (2) LLJ 467 ]. In dealing with the problem raised in that case, this Court has made it perfectly clear that so far as the question of compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of <CITATION> 1954 (2) LLJ 139 ] and it has observed that the law in relation to the validity of the rules permitting compulsory premature retirement of <ORG> servants must be held to be well-settled by those decisions and need not be reopened. The only exception the majority judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if, having fixed a proper age of superannuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does not arise in the present case, because as we have already seen, note 1 to rule 285 requires that the <ORG> servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 years of active service or attained 50 years of age. We are, therefore, satisfied that the point which Sri <NAME> wants to raise before us in the present petition is clearly concluded by the decisions of this Court and cannot be allowed to be reopened.Sri <NAME>, however, attempted to argue that there are certain observations made by this Court in the case of General Manager. <CITATION> 1962 AIR(SC) 36 ] which support his contention. In that case, this Court was called upon to consider the validity of certain railway circulars and that needed an examination about the scope and effect of the provisions of the different clauses of Art. 16 read with Art. 14 of the Constitution; the question of compulsory retirement did not fall to be considered in that case. Dealing with the scope and effect of Art. 16(1 ), it was observed that the narrow construction of the expression "matters relating to employment" occurring in Art. 16(1) could not be accepted, because it would lead to anomalous results. In that connexion, it was pointed out that it would not be open to the <ORG> to prescribe different scales of salary for the same or similar posts, different terms of leaves or superannuation for the same or similar posts. It is on these observations that reliance is placed by Sri <NAME>. It is obvious that these observations have no relevance to the point with which we are concerned in the present petition. We are not dealing with different rules of compulsory retirement at all, the impugned note applies to all <ORG> servants, and as such, is not open to a challenge under Art. 14 or 16 (1). Therefore, we do not think Sri <NAME> is justified in contending that these observations support his argument.

It is true that in his petition the petitioner has made certain allegations against the Home Minister <NAME> and has suggested that the order terminating his services prematurely is due to his whims and fancies, and he has characterized the said order as both arbitrary and illegal. According to the Petitioner, his past record is free from blemish and the Government was not, therefore, justified in coming to the conclusion that it was in the public interest to retire him compulsorily. The allegations made by the petitioner in that behalf are very vague and unsatisfactory, and so, it would be idle to contend that if the impugned note is valid, the order terminating the services of the petitioner can still be challenged on the ground that it is not justified on the merits or is illegal or arbitrary. Whether or not the petitioner's retirement was in the public interest, is a matter for <ORG> to consider, and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of mala fides.The result is, all the petitions Nos. 184 to 195 of 1963 fail and are dismissed. There would be no order as to costs.