' This, revision petition has been directed against an order dated 19th October 1971, passed by the learned Civil Judge, Lahore, whereby he lodged a complaint under section 193, P. P. C. Read with section 476, Cr. P. C. With the District Magistrate for criminal proceedings against the petitioner.
2. Briefly, the facts giving rise to the impugned order are that the civil Court appointed Miss Rabia Qari, Advocate, Lahore, as the umpire in a dispute between the petitioner and respondent No, The parties appeared, led evidence and made statements on oath. It was, however, complained by respondent No, 2 before the civil Court later that as the petitioner had deliberately made a false statement on oath before the arbitrator, he should be proceeded against under section 193, P. P. C.
Read with section 476, Cr, P. C. The contention of respondent No, 2 found favour with the learned Civil Judge with the result that he lodged a complaint with the District Magistrate accordingly.
3. It is contended by the learned counsel for the petitioner that there are two important conditions to the exercise of jurisdiction under section 476, Cr. P. C. Firstly, that no Court shall take cognizance of an offence punishable under section 193, P. P. C. When such as offence is alleged to have been committed in or in relation to any proceedings, in any Court except, on the complaint in writing of such Court or of some other Court to which he is subordinate. Secondly, the Court before which or in relation to which such an offence has been committed may after such preliminary inquiry as it thinks fit record a finding to that effect before filing complaint before a Magistrate. In his view the objectionable statement was neither made before the civil Court nor were the proceedings, before the concerned arbitrator, in relation to any proceedings in that Court. He also relied on section 13 of the Arbitration Act where a specific power has been given to the arbitrator or the umpire to administer oath unless a different intention is expressed in the agreement, Section 3 of the Evidence Act was also referred to say that an arbitrator is not a Court. It was also submitted that as the umpire is also an arbitrator and he stands expressly excluded from the definition of the 'Court' the order of the learned Civil Judge was unlawful. The contentions about section 13 of the Arbitration Act and section 3 of the Evidence Act are, however, not relevant as no action was taken by the umpire before whom the objectionable statement was made. Thus none of the two provisions referred to above apply to the case in hand.
4. The learned counsel for the petitioner next submitted that the impugned order having been passed behind the back of the petitioner is unlawful and merits setting aside. It was submitted that on 14th September 1971, the learned Civil Judge had directed that the petitioner be served personally. On 15th September 1971, the Court recorded another order saying that the learned counsel for the petitioner had objected that it is the petitioner who was to be served and not the counsel. The case was, therefore, adjourned to 17th for the consideration of this point. Later, however, the Court without considering that aspect of the case or serving the petitioner, proceeded to pass the impugned order. The objection taken does not appear to be of much value to the petitioner. The view so far taken by the Courts in the sub-continent is that prior notice under ,4 section 476, Cr. P. C. Is not necessary to the person to be 'Bested by the finding given by the concerned Court. It was held in Thunnudeo Raghvi's case (1) that it is for the Judge to decide which fora the inquiry to take. In the case of Nab! Bakhsh (2) it was held that no notice is necessary to the accused before a Court decides to lodge a complaint under section 476, Cr. P. C. The Lahore High Court also in the case of Dr. Nazir Ahmad (3) took the same view after referring to a few decided cases. In the circumstances I am of the view that this objection cannot be sustained. I may, however, in passing refer to an English case Wiseman v. Borneman (4) and In re : Pargamon Ltd. (5) wherein it was held that if the inquiry exposes a person to a legal hazard and is a necessary prelude to other proceedings which may culminate in his condemnation the petitioner is entitled to a hearing. The provisions of section 476, Cr. P. C. Do provide for a preliminary inquiry by a Civil Judge, In the case in hand the situation was, however, different. A notice had in fact been ordered to be issued to the petitioner but perhaps being unmindful of that the Court subsequently proceeded without requiring the presence of the accused. Therefore, in view of Thunnudeo's case referred to above, I would conclude that as the Court had come to the conclusion that the accused should be heard it ought not to have decided the case in his absence. In any case a decision on this particular paint is not very necessary in the circumstances of this case, as this can be dealt with on another ground discussed hereafter.
5. Admittedly Miss R. S. Qui, Advocate, had been appointed as an umpire by a civil Court under section 8 of the Arbitration Act. These proceedings are absolutely independent of other proceedings to be taken for filing of the award to make it a rule of the Court. Therefore, once an application under section 8 is decided the civil Court is funcius officio and no further proceedings shall be pending or deemed to be pending before it. The situation may be different if the arbitration proceedings had been initiated under sections 21-25 in Chapter IV. In that case the proceedings before the arbitrator may be in relation to the proceedings pending before the Court. In the case in hand the umpire before whom the alleged statement had been made was functioning independently under her own powers and not on the basis of some proceedings pending before the civil Court. In Kedar Nath Sen v. Amulya Ratan Sanyo! (6) it was held that the proceedings before an official assignee under the Presidency Town Insolvency Act, 1909, were the proceedings in relation to proceedings pending before a Court and, therefore, the offence was held to have been committed. In K. Puttiah Chett3i v. P. Veerasarny Mudaly (7) it was held that a Court cannot take cognizance of a prosecution in respect of an offence committed in proceedings before an arbitrator to whom a reference had been made by a Court without the sanction of such Court. In Nita Khuadera Ghadge's case (8) where the offence was committed before a Commission appointed by the Co art, it was held that the Court could lodge the report, In Sheo Biles (9) an offence committed daring investigation was held not to fall under section 195. Cr. P. C. The test that is derivable iron the above judgments is that if the proceedings before the umpire were in relation to
(1) AIR 1944 Nag. 359 (2) AIR 1940 Sind 209
(3) AIR 1938 Lah. 641 (4) 1971 A C 297
(5) (1971) Ch. 388 (6) AIR 1942 Cal. 79
(7) (1907) 17 M L J 420 (8) AIR 1927 Born. 647
(9) AIR 1959 All. 14 ' proceedings before a civil Court only then the impugned order can be sustained. Thus the question that requires determination is whether the umpire was proceeding in regard to some proceedings pending before the civil Court which passed the impugned order. I have already discussed above that there was no proceedings pending before the learned civil Court as it became funetus officio as soon as the application under section 8 of the Arbitration Act before it stood concluded. In the circumstances the civil Court had no jurisdiction under section 476, Ct. P. C.
To lodge a complaint in this case.
6. The last objection taken by the learned counsel was that as the petitioner has not filed an appeal as provided under section 476-A, Cr. P. C. This revision cannot be considered. The learned counsel, however, has not been able to show any provision of law that if in a criminal case where an appeal has not been filed, a revision does not lie. He has also not produced any case-law about it. In the circumstances I do not think this objection is valid.
' For the reasons given above the complaint filed by the learned Civil Judge before the District Magistrate under section 476, Cr. P. C. Was unlawful and the same is, therefore, withdrawn.