1. A. S. CHOWDHURY, J.-This application is a misconceived and a frivolous one. It must be rejected.
2. Petitioner Abdur Rouf and another in Writ Petition No. 67 of 1969 prayed for derequisitioning of a certain premises. The writ petition was heard by us on the 16th June 1969, and we delivered judgment on that day. The point which arose for determination by this Court was as to whether or not the premises was necessary for a public purpose. Mr. Aqil Ahmad who has filed this application under section 476 of the Code of Criminal Procedure, appeared before us on that date with an application to be added as a party. We held that he was not a necessary party for the property was requisitioned by the Government. It is for the Government to say as to whether or not the property is necessary to be kept under requisition. He was a Super--intendent of the Custom and in that capacity he was put into possession of the premises by the Customs Department of the Central Government of Pakistan. The Provincial Government requisitioned the property. It allotted the property to the Customs Department of the Central Government and the posses--sion during the period of requisition was that of the Customs Department of the Central Government. Mr. Aqil Ahmad was in physical occupation of the premises as an Officer of the Central Government. He, therefore, does not come into the picture in regard to the determination of the question as to whether or not the property should be derequisitioned. Even then we noticed the objection raised by him with regard to the maintainability of the petition, and although we rejected his prayer to be added as a party we expressed our opinion on merits on the point raised by him. On that date he did not point out that there was any fabrication of evidence or that any false evidence was adduced by the petitioner.
3. After the disposal of the Writ Petition No. 67 of 1969, he has filed this application with notice to the learned Advocate for the petitioner of the said Writ Petition.
4. In response to the notice Mr. Mazhar Hassanain, the learned Advocate for the petitioner of Writ Petition No: 67 of 1969 appears and raises two preliminary objections both of which are of no substance. His first objection is that this Bench has no constitution to hear a criminal matter and that an application under section 476 of -the Code of Criminal Procedure should not be entertained by this Bench.
5. Section 476 of the Code provides, broadly speaking, that when any Civil, Revenue or Criminal Court is of opinion that in the interest of justice an inquiry should be made to any offence referred to in section 195 of the Code of Criminal Procedure such Court may take steps as visualised under that section. Such a step can be taken if the Court considers it necessary either on' application or suo molu in regard to a matter in relation to a proceeding in that Court. Writ Petition No. 67 of 1969 was heard by this Bench.
6. That being so, this Court can, under the provisions o section 476 of the Code of Criminal Procedure, entertain this application and dispose it of. No special constitution is necessary for our entertaining this application. The view expressed above finds support in a Full Bench decision of the Calcutta High Court in the case of Begu Singh v. Emperor (1 I L R 34Cal.551). In that case a Full Bench consisting of Sir Francis W. Maclean, K. C. I. E., Chief Justice, Harington, Brett, Mitra and Geidt, JJ., held that a Court is entitled to take action under this section when an offence is committed in relation to a proceeding before that Court. Maclean, C. J. Observed: - "The expressions in the section `is of opinion that there is ground,' `committed before it or brought under its notice in the course of a judicial proceeding,' seem to indicate with some clearness that it is the Judge alone who tries the case who can summarily, and at once, send the case for enquiry to the nearest Magistrate."
7. Again the learned Chief Justice says: -- "Section 476 and section 195 aim at different objects. The former gives a summary power to the Judge who tries the case to send a supposed offender to the nearest Magistrate.."
8. Therefore, it is clear that it is the Judge who tries the offence has to deal with it. The writ petition having been disposed of by us. Mr. Aqil Ahmad has come up with an application before us, for he imagines that an offence has been committed in respect of that proceeding. Whether an offence has been really com--mitted or not is a different matter, and we shall consider it on merits but we do not appreciate the objections raised by Mr. Mazhar Hassanain. When we pointed out to him this difficulty he relied on the daily list of the High Court in which the words "Applications relating to or arising out of proceedings under section 195 or section 476, Cr. P. C. Occur in the list to be taken by another Division Bench taking up Criminal matters". This should not have misled a lawyer of Mr. Mazhar Hassanain's standing and seniority. That constitution only means this that if such a matter has been disposed of by any of the Courts subordinate to this Court and if it is brought to the High Court by any of the parties to the said proceeding, that matter will be dealt with by that Division Bench. To accept the con--tention of Mr. Mazhar Hassanain would be to go against the language of the statute which clearly lays down that the Court, in relation to the proceedings of which the offence is alleged to have been committed as in this case should take necessary steps as contemplated under that section. Harington, J. In the case of Begu Singh says: - "That section gives the Court in cases in which an offence under section 195 is committed before it or brought to its notice in the course of a judicial proceeding' power to send the accused in custody to the nearest Magis--trate who shall `proceed according to law and as if upon a complaint made and recorded under section 200'."
9. So the power is given to the Court in relation to a case which was before it. The writ petition was before us. No other Court, therefore, could entertain this petition as claimed by Mr. Mazhar Hassanain. Harington, J. Makes the position further clear when the learned. Judge observed: - "The officer before whom the offence is committed alone is in a position to say whether it is, or is not a case for proceed--ing under section 476."
10. Mr. Hassanain's next objection is that Mr. Aqil Ahmad who appears in person and is not a lawyer, has mentioned section 192 of the Penal Code in his petition and Mr. Hassanain's contention is that offence under section 192 is not mentioned under section 476 of the Code of Criminal Procedure.
11. His contention, therefore, is that provisions of section 476 are not attracted inasmuch as it speaks of offences referred to in section 195 of the Code of Criminal Procedure. It is true section 192 of the Penal Code is not mentioned in section 476 of the Code of Criminal Procedure. Mr. Aqil Ahmad has mentioned section 192 which defines the offence itself. The punishment is provided, in section 193 of the Penal Code and section 193 has been men--tioned in section 195 of the Code of Criminal Procedure, which has been mentioned in section 476 of the Code. Therefore, the objection raised by Mr. Hassanain is too technical and such ob--jections if entertained, ends of justice will be frustrated. Mr. Hassanain ought to have appreciated that clause (b) of section 195 of the Code of Criminal Procedure speaks of an offence punishable under section 193 of the Penal Code and some other sections of the Code. Mr. Aqil Ahmad has mentioned section 192 of the Penal Code which defines an offence punishable under section 193:1 This objection also has no substance.
12. Now coming to the merits of the application under section 476, we find that Mr. Aqil Ahmad is aggrieved by omission of the petitioners to mention an observation by. theSupreme Court in respect to a litigation regarding the- premises in question in which Mr. Aqil Ahmad in his personal capacity and 'o the petitioners are parties.
13. It would be absolutely irrelevant to mention these matters for the purpose of the determination of the issues set out at the outset, it should be realized by all concerned that we do not go into unnecessary discourses. We have sufficiently indicated that in the Writ Petition, the only point necessary for consideration was as to whether there was any public purpose for continuation of the order of the requisition, and when we were informed by the learned Deputy Attorney-General, who appeared, for the allottee the Central Government and Mr. Anwarul Haque Chowdhury, the learned counsel who appeared for the requisitioning authority that the premises was no longer, necessary for any public purpose, we directed the requisitioning authority to derequisition the property.
14. The disclosure of the observation of the Supreme Court was not necessary in this matter. Therefore, there was neither any sup--pression of any fact nor any fabrication of evidence nor any false evidence was adduced and no offence, therefore, was committed. After having directed that the property should be derequisitioned, we asked the Deputy Commissioner that he should perform his statutory duties under section 8 of the East Bengal (Emergency) Requisition of Property Act, 1948. It is hardly necessary to say that in the performance of those duties he would take such steps as may be necessary under that provisions and will act in accordance with law. Mr. Aqil Ahmad was, therefore, not a Necessary party before us.
15. He has filed an application today stating that "this Court graciously and suo motu directed the Advocate-General to appear who in his own turn informed this applicant and it was this apple-- cant's appearance before your Lordships on 16-6-69 and explaining the matter that a catastrophe was averted." He, therefore, claims that since the learned Advocate-General informed him, he was a necessary party. We directed a copy to be served on the learned Advocate-General to appear on behalf of the Provincial Government. If the learned Advocate-General has informed a private person that does not make that person a necessary party in the eye of law. At any rate, Mr. Aqil Ahmad appeared before us and we heard him on merits. He himself also did not consider that disclosure of the observation of Supreme Court made in a case was necessary. Therefore, this petition is devoid of substance on merits as well. The drastic provision of section 476 of Code of Criminal Procedure for institution of a prosecution by a Court should be resorted to only when it is imperative. In the Case oft' Begu Singh to which reference has already been made, Geidt, J.
16. Observed: - The commission of the offence and the desirability of a prosecution should be so patent as to move the Court at the time to take action without the stimulus of an application by some interested person."
17. Mr. Aqil Ahmad has also mentioned in his application that he is a highly interested person inasmuch as he was in "lawful possession under section 53-A of the Transfer of Property Act." We have already observed that so long as the premises remained under requisition it was finder the possession of the Government which requisitioned the property and not of any private individual.
18. For the reasons stated above we are clearly of opinion that the application is a frivolous-one and it is accordingly rejected.
19. We have made observations necessary for the disposal of the matters before us, and we must take care to say that these observations should not have any effect on any pending or future litigation between the parties. Those cases are to be disposed of on the materials placed before the Court and in accordance with law.
20. NURUL ISLAM, J.-I agree.