P L D 1967 Dacca 717 (PLP)

Mr. Behtar Ali himself placed his reliance on the case of Mooso v. The State (P L D 1963 Kar. 719), but he omitted to notice that Faruqui, J., himself observed. "The preliminary enquiry before the recording of the finding, strictly speaking according to the statute, is optional." It may be mentioned here that the rule was issued only on ground No. 4 which has been quoted above and I have made it clear that it has no substance at all. Confronted with this situation Mr. Behtar Ali seeks permission of the Court to argue that there is no finding to that effect that it is unnecessary in the interest of justice to hold an enquiry and the absence of recording such finding is fatal to the proceeding. Mr. Masud did not raise objection to the new point the learned Advocate now seeks to urge. I am, however, of opinion that the new point as submitted by the learned Advocate is not tenable in law. Section 476 of the Code of Criminal Procedure mentions offences referred to in section 195 of the Code of Criminal Procedure. Section 195 (6) mentions various offences under sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and

228. In dealing with an offence, for example, under section 193 which provides punishment for false evidence, it would ordinarily be necessary to hold a preliminary enquiry to be satisfied that a trial is necessary for the offence as alleged. It would be reasonable to say that the requirement of such a finding cannot be so strictly insisted upon in a case under section 228 which is in the following terms: ‑ "Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." The offence is one which in the very nature of things, is committed in the full view of the public servant engaged in a judicial proceeding and as such in a case of this nature omission to record a finding cannot be considered to be fatal if it appears from the facts and circumstances of the case that such a trial would be in the interest of justice. Reading the petition of the complainant, I am satisfied that a trial on the allegations would be in the interest of justice. The learned Sessions Judge hearing this appeal has rightly held that the omission to record the finding in question is merely an irregularity which is not fatal to the case itself. Mr. Behtar Ali has placed great reliance on the following observation in the case of Mooso v. The State, referred to above :‑ "But even if such preliminary inquiry is dispensed with, there can be no escape from the requirement of the section as to the recording of the finding. This necessarily involves the application of the mind of the Court concerned to the question whether the holding of an inquiry into the offence by a Magistrate is expedient in the interests of justice. It is not in every case where an offence such as mentioned in section 195 appears to have been committed that a complaint must be made. The Court before whom such an offence appears to have been committed has to address itself to the question whether such an action having regard to all the circumstances of the case is expedient in the interest of justice." Mr. Behtar Ali had no answer when it was pointed out to him that the facts of the two cases are clearly distinguishable. In the case cited by him the offence was one under section 193 of the Pakistan Penal Code for giving false evidence and, as I have already pointed out, in a case of that nature it, would indeed be necessary for the Court to address itself to the materials before it to reach the conclusion as to whether or not a trial is necessary. I am not unmindful to the fact that section 228 is one of the sections mentioned in section 195 which in its turn finds place in section 476 but I would only say that irregularity in a case under section 228 cannot be considered to be fatal. In this case the offence as alleged took place in the very presence of the Court and there was nothing more for it to assess the situation as presented before him. The view expressed above finds support in the case of Nawalal Jha and another v. Emperor (A I R 1936 Pat. 162). That was a case in which certain witnesses were being prosecuted for giving false evidence. Even in that case Rowland, J. held that the absence of a finding by the Court ordering prosecution that it is expedient in the interest of justice that an inquiry should be made is not fatal to the proceedings started under section

476. The same view has been expressed in a Division Bench of the Madras High Court consisting of Curgenven and Bhashyam Ayyangar, JJ., in the case of M. Namberunal Chedy v. M. Mainiappa Mudali (A I R 1931 Mad. 16). That was also a case for giving false evidence where an inquiry thereafter and a finding that it was necessary in the interest of justice that a trial should take place might have been reasonably insisted upon; but even in that case the learned Judges observed as follows:‑ "We have been referred to one case: Bhuban Chandra Pradhan v. Emperor A I R 1927 Cal. 628 where the objection was raised that the learned Judge who made the complaint had not recorded a finding that it was expedient in the interests of justice to complain, and this was disposed of with the observation that "the order showed clearly the learned Judge's opinion that the appellant bad given false evidence before him. That order by itself, and in view of the proceedings started under section 476, carries the implication that the learned Judge must have felt that the ends of justice required that an inquiry before a Magistrate should take place." "We think that the same implication is clearly to be gathered from the order which the learned Judge has passed in this case; and we can find no grounds for interfering with it in appeal." In the case before me, although the Magistrate before whom the incident took place has not recorded that it is expedient in the interest of justice that a complaint should be lodged, but the material part of the allegations made by him as quoted earlier in the judgment is sufficient for me to hold that the Magistrate was by implication, as was in the Madras case, satisfied that in the interest of justice such a trial should take place. In considering similar arguments in this behalf it was held in the case of Nawrang Rai and others v. Emperor (A I R 1930 Lah. 347) that a repetition of this formula was not necessary. Tapp, J. observed as follows: "Now the words "expedient in the interest of justice" are not a formula or incantation which must of necessity appear in every order made under section

476. This section merely requires that the Court‑ concerned should be of opinion that an enquiry should be made into any offence referred to in section 195, subsection (1), clause (b) or clause (c) and that the learned District Judge did arrive at such an opinion is sufficiently obvious from his order." As I am satisfied that such an opinion is "sufficiently obvious" from the petition of complaint I cannot agree with Mr. Behtar Ali that repetition of these words of "incentation" was necessary in this case. Dealing with a case, in which also it was not recorded that it was expedient in the interest of justice that a prosecution should take place, a Division Bench of the Calcutta High Court consisting of Rankin, C. J. and Mallik, J. in the case of Nawabali Khan v. Chandrakanta Banerji (58 I L R Cal. 965), held that there should be no interference merely on the ground that such a finding was wanting. Rankin, C. J. expressed himself in the following terms: "In particular, in cases where the offence is of considerable gravity, it will be manifestly unreasonable to take the view that the Court can have directed a complaint without con sidering whether it is expedient in the interest of justice so to do. If one finds that the Courts have not obeyed the terms of the section, one is rather inclined to doubt whether they had the terms and conditions of the section present in their minds. In this case, however, both the lower Courts have come to the conclusion that there is a prima facie case against this peon for making this false return and for taking part in what is certainly a very grave fraud upon the Court. It does not seem to me to be one of those cases where there is anything much to consider except the question whether or not the evidence is such as to make it likely that the offence is brought home to the peon. On this ground, it seems to me that it would not be right to interfere in the present case and that the Rule should be discharged." This observation of Rankin, C. J. fully supports the view that recording of the findings as claimed by Mr. Bihtar Ali is not a vital necessity in every case. Even in a case where a peon is alleged to have given false return, absence of such a finding was held to be insufficient to vitiate the proceeding. In the case of Bankey Lal v. Rampadarath Singh (A I R 1933 Pat. 713), the learned Judges of the Patna High Court went so far as to say that it would lead to failure of justice, if the Courts set aside the prosecution merely by reason of the absence from the order exact words of the section showing that a prosecution was necessary in the interest of justice. Even if there is an irregularity it is a well settled judicial principle that the High Court will not, in exercise of its revisional jurisdiction, interfere unless it is satisfied that such interference was necessary in the interest of justice. In this case I am satisfied that in the interest of justice such interference is not necessary in the exercise of the criminal revisional jurisdic tion of this Court. No other point having been pressed before me, the Rule is discharged and the petition rejected. The case is now sent back to the trial Court to proceed with the same in accordance with law. K. B. A. Rule discharged.