Rowland, J.The appellants have been convicted by the Sessions Judge of Gaya of offences committed in connection with an unregistered usufructuary mortgage deed which was used by the defence in a criminal case in which Jageshwar Singh and Jagdeo Singh were accused u/s 447, Indian Penal Code. Possession of a plot of land was in issue and the document purported to create a hypothecation of this plot in favour of Jageshwar and Jagdeo Jugal Lals signature appeared on it as an attesting witness and it purported to be scribed by Parmeshwar Lal of Misirbigha. The document was found to be a forgery. The Honorary Magistrate Khan Sahib Syed Mohammad Islam, who disposed of the case, called on Jageshwar, Jagdeo and Jugal to show cause against their prosecution. It was alleged that the document was not written by Parmeshwar Lal but by Raghubar Dayal. He was also called on to show cause against prosecution. So was Bikhari Lal, another person whose name appeared on the margin as an attesting witness. The Honorary Magistrate purporting to act u/s 476, Indian Penal Code, complained against Jageshwar, Jagdeo and Jugal Lal, the first two under Sections 471 and 467 read with Section 120 and the third under Sections 193 and 467 read with Section 120, Indian Penal Code. His view was that the forged document came into being as a result of conspiracy and the complaint appears to have been intended to refer to Section 120B, Indian Penal Code. He declined to prefer a complaint against Raghubar Dayal and Bikhari Lal.

2. Against this order Shamdeo, the complainant of Section 447 case, preferred an appeal to the District Magistrate, who after reviewing the facts, found that there was a prima facie case against Raghubar Dayal and Bikhari also, and u/s 476B, Criminal Procedure Code, he complained against these two persons u/s 467 and Section 467 read with Section 120B, Indian Penal Code. He directed these two accused to be proceeded against in the same case as the other three persons already being prosecuted. The Sessions Judge found that the document was forged, being his judgment on possession of the land by the opposite party, Shamdeo Singh ; on the production of rent receipts by Shamdeo ; on the fact that the original raiyati khatian was in possession of Shamdeo ; on the fact that proceedings have been taken by Shamdeo u/s 40, Bengal Tenancy Act ; on the absence of mention of this document in the written statement of Jageshwar and Jagdeo in the Section 447, case; on the fact ,that the stamp paper was of insufficient value being on 4 annas stamp instead of 8 annas; on the fact that the purchase of the stamp paper as endorsed thereon was later than the date of the alleged document ; and on the evidence of the hand-writing expert and other persons as to handwriting. The explanations offered for the appellants entirely failed to displace the reasoning of the Sessions Judge which is fully supported by the evidence, and the argument in the appeal has been directed mainly to an attack on the regularity of the initiation of the proceedings. The order of Khan Sahib Syed Muhammad Islam for the prosecution of the first three accused was dated February 7, 1934, and his complaint was presented on February 16. At that time he was not exercising the powers of a Magistrate. He had been vested with such powers by Notification No. 2581, dated September 27, 1930, for a period of three years expiring on September 26, 1933. He was again vesled with magisterial powers on July 18, 1931, and it is argued that in the interval he was not a Court capable of initiating proceedings u/s 476. The Sessions Judge thought that, once a commitment had been made it was too late for the accused to take an objection against the initiation of the proceedings which they ought to have taken at an earlier stage. They had [not appealed to the District Magistrate against Abe order purporting to be made u/s 476, directing their prosecution, nor, to the Sessions Judge against the order of the District Magistrate u/s 476B.

3. The Sessions Judges view is supported by the decision of the Calcutta High Court in Jabbar Ali and Another Vs. Emperor, . The decision is followed by the same Court in Ali Ahmad Vs. Emperor, . The intention of the legislature appears to be to prevent innocent persons being put on trial at. the instance of persons likely to be moved by motives of revenge and not protect guilty persons from the penalty of their crimes. There is another answer available to the prosecution and that is that the Sub Divisional Magistrate, before whom the case against all these appellants was inquired into, had before him the complaint of the District Magistrate u/s 476-B against two of the persons who were put on trial. What Section 195, prohibits is taking cognizance of an offence of a certain class except on a complaint of a Court ; but where a Court has complained of an offence specified in this section, then cognizance can be and is to be taken of the whole case, that is to say prosecution will go forward as against all the persons found to be concerned in the offence and also under any sections found applicable to (he facts which are the subject-matter of the complaint. It was so held in this Court in the case of Mathura Singh and Others Vs. Emperor, , and in Jamuna Singh Vs. Laldhari Singh and Others, . The complaints considered in those cases were complaints by private parties and not of offences requiring a complaint by a Court for the institution of proceedings.

4. But I have no doubt that the principle applies, cognizance having been taken of an offence, the inquiry will proceed against all the persons whom the evidence shows to have been concerned in it provided that the Court making the complaint and naming some persons therein has rot expressly considered and decided in the negative, the question whether other persons should also be prosecuted on the same facts. I am satisfied, therefore, that Section 193, Criminal Procedure Code, was no bar to the conviction of the appellant Raghubar Dayal under Sections 467 and 193, of Jugal Lal u/s 471/109, of Jageshwar Singh u/s 467 and Section 467 read with Section 471, and of. Jagdeo Singh u/s 467 read with Section 471. I need not discuss the proceedings against Bikhari who has been acquitted. There was a further charge against all the appellants u/s 120B, Indian Penal Code, which was not framed by the Committing Magistrate but by the Sessions Judge. The appellants have been convicted under this section also. No separate sentence was imposed, so the discussion of the propriety of the Sessions Judge framing a new charge under this section is somewhat academic. The law restricting the institution of a prosecution u/s 120B, Indian Penal Code, is contained in Section 196A, Criminal Procedure Code, and it is noticeable that the restrictions apply not to every class of criminal conspiracy. Referring to Section 120B, Indian Penal Code, we find that Sub-section (1) imposes a penalty equal to the punishment for abetment) on participation in a criminal conspiracy to commit an offence punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, in case no express provision is made in the Code for the punishment of such a conspiracy.

5. The section appears to have been introduced to fill a gap in Section 107, Indian Penal Code, defining abetment. u/s 107, secondly, a person abets the doing of a thing who engages with others in a conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy. Abetment of an offence is punishable under Sections 109 or 114, as the case may be if the offence is committed or under Sections 115 and 116 as the. case may be if the offence be not committed ; but it is clear that a conspiracy will not amount to an abetment unless an act or illegal omission takes place in pursuance of the conspiracy. Therefore) the first class of cases which Section 120B is designed to cover, is that in which the conspiracy is formed for the commission of a serious offence but no act or illegal emission has taken place in pursuance of it. Section 120A, which defines criminal conspiracy, enacts that an agreement to commit an offence may itself amount to a criminal conspiracy even if no overt act follows on the agreement.

6. The second class of cases is that in which the conspiracy is formed in order to do an illegal act or an act not illegal by illegal means ; this sort of conspiracy in no case amounts to abetment and does not amount to a criminal conspiracy unless some act besides the agreement is done in pursuance thereof. Thus, whereas Section 120A. provides an extended definition of criminal conspiracy covering acts which do not amount to abetment by conspiracy within the meaning of Section 107, Section 120B provides a punishment for criminal conspiracy where no express provision is made in this Code for the punishment of such a conspiracy." Where a criminal conspiracy amounts to an abetment u/s 107, it is unnecessary to invoke the provisions of Section 120A and 120B because the Code has made specific provision for the punishment of such a conspiracy. In the case before us, the offences which are alleged to have been the object of the conspiracy were in fact committed ; so the conspiracy amounted to abetment. The Court should not, therefore, have framed additional charges u/s 120B. Appellants having been convicted on the substantive charges framed were not liable to be convicted also of conspiracy. Argument was entered into on the question whether there was a proper sanction to the framing of charges u/s 120B. It is not necessary to go into this matter when on other grounds those charges have failed. I would set aside the convictions u/s 120B, Indian Penal Code, while confirming the convictions under the other sections. The Sessions Judge has imposed sentences of 5 years on Raghubar Deyal, of 3 years on Jugal and Jageshwar and of 2 years on Jagdeo. As the sentences do not appear to be excessive, I would dismiss the appeal.

Dhavle, J.

7. I agree. As regards the merits there cannot be any doubt on the evidence that the forgery and connected offences have been brought home to the appellants as charged. As regards the initiation of these proceedings the facts are very peculiar. Stress has been laid by the appellants on the facts that though the first complaint u/s 195, Criminal Procedure Code. was made by Khan Sahib Syed Muhammad Islam signing as Honorary Magistrate, he was at that time without any powers as a Magistrate. Section 195(c), requires a complaint of the Court in which the forged document was produced or of some other Court to which such Court is subordinate. The forged mortgage bond had been produced before Mr. Islam during his trial of the case, brought u/s 447, Indian Penal Code, by Shamdeo against Jageshwar Singh and Jagdeo Singh, in exercise of the powers of a Magistrate conferred upon him for three years by the notification of September 27, 1930. When these powers expired by lapse of time, he was not succeeded by any other Magistrate.

8. But the proceedings ho took u/s 476, Criminal Procedure Code, were based on an application made by Shamdeo during the trial of the case u/s 447, Indian Penal Code. It was on this application that immediately on the disposal of that case the Honorary Magistrate ordered notices to issue against the five persons tried by the Court of Session to show cause why a complaint should not be made against them in respect of offences arising out of the forgery and its user. Before the expiry of his powers as a Magistrate Mr. Islam adjourned these preliminary proceedings on the request of the five persons as they represented that the same matter was directly and substantially in issue in the appeal that Jageshwar and Jagdeo had preferred against their conviction. The appeal was disposed of and the record returned after the expiry of the magisterial powers of Mr. Islam, who, however, proceeded to complete the preliminary proceedings u/s 476, Criminal Procedure Code, without any objections raised by the five accused as regards his authority. He complained against three persons only out of the five, and on an appeal by Shamdeo u/s 476B, Criminal Procedure Code, the District Magistrate complained against the other two. The terms of this latter complaint distinctly indicate that the District Magistrate endorsed the complaint of Mr. Islam against the other three accused. The District Magistrate concluded:

The witnesses against them (Raghubar and Bikhari) will be the same as in the case against the other three persons already prosecuted over the same transaction. The present accused should also be proceeded with in. the same case.

9. It was upon these two complaints that the Committing Magistrate proceeded against the five persons. The power, if it may be so-called, to make a complaint u/s 476, is not among the powers specified in Schs. III and VI, Criminal Procedure Code, and is not a magisterial power, for it can be exercised as well by Civil or Revenue Courts as by Criminal Courts. The object of Section 195 clearly is to avoid harassment at the instance of private parties who may be acting for reasons of their own rather than in the interests of the administration of justice, and the complaint required by the section merely bars the taking cognizance of offences in the ordinary way u/s 190(1). It cannot be said that this object was in any way defeated by the fact that at the time he made his complaint, Mr. Islam was not empowered to act as a Magistrate. He was not an officious intruder, but was merely completing the preliminary proceedings that he had begun before the expiry of his powers as a Magistrate and that he had adjourned at the request of the accused ; and he was doing this at a time when it is not suggested on behalf of the appellants that there was in existence any Court which could be pointed out as the proper Court for completing the proceedings.

10. Had any objection been raised at that time on behalf of the accused the matter would doubtless have been disposed of by the District Magistrate u/s 559(2). But in any event Mr. Islams complaint against Jageshwar, Jagdeo and Jugal was definitely endorsed by the District Magistrate while exercising his powers u/s 476B in respect of the other two accused. It seems to me that it is now too late u/s 587 of the Code for the appellants to ask for a reversal of their convictions on the ground "of any error, omission or irregularity in the complaint" required u/s 195 for the initiation of the proceedings against them, since the objection could and should have been raised at more than one earlier stage in the proceedings. As regards the charge u/s 120B, Indian Penal Code, I observe that this section was mentioned in Shamdeos initial application to the Honorary Magistrate against all the live accused merely on the footing that they had conspired to forge the mortgage-deed to support the false claim of Jageshwar and Jagdeo in the case u/s 447.

11. There never was any case of criminal conspiracy against these persons apart, from the furgery and its user, and it is not suggested by the learned Advocate for the appellants that any evidence was given on the charge of criminal conspiracy apart from what was given in respect of the other offences. The conspiracy was only inferable from the forgery and user, if proved, but would in that case come within the provisions of the Penal Code as regards abetment and would, therefore, not be punishable u/s 120B at all. The charge under this section against the accused was thus also entirely necessary. The formal addition of such a charge has plainly not affected the decision of the case on the merits and it will, therefore, be sufficient to set aside the convictions of the appellants under this charge.