E.P. Kumaravel Nadar vs T.P. Shanmuga Nadar and Others

Alfred Henry Lionel Leach, C.J.—Three matters have been placed before this Full Bench and they can be dealt with conveniently in the

same judgment as they all involve the same question. The first case arises out of a suit which was tried by the Subordinate Judge of Tinnevelly. The

plaintiff contended that a post card which had been put in evidence by the first and second defendants on the allegation that it had been written by

the third defendant to the second defendant was a false document. Subsequently the plaintiff filed an application asking the Court to prosecute the

three defendants under the provisions of Section 476 of the Code of Criminal Procedure for offences alleged to have been committed under

Sections 463, 464, 471, 473 and 476 of the Indian Penal Code. The Court dismissed the application and the Subordinate Judge''s decision was

upheld by the judgment of the District Judge on appeal. The plaintiff has now asked this Court to revise the order of the District Judge under the

provisions of Sections 4Jo and 439 of the Code of Criminal Procedure and to direct the prosecution to take place. In the second case an

application was made to the Court of the District Munsif of Tiruvarur by the petitioner, the assignee of a decree, to direct the prosecution of the

respondents under Sections 206 and 207 of the Indian Penal Code. The application was granted by the District Munsif, but the respondents

appealed to the District Judge of East Tanjore, who reversed the order of the District Munsif. The petitioner asks that the order of the District

Munsif be restored by this Court under its powers of revision under Sections 435 and 439 of the Code of Criminal Procedure. The third matter

arises out of an application filed by the second defendant in a suit in the Court of the Subordinate Judge of Mayavaram against the respondents.

The application was rejected by the Subordinate Judge and on appeal to the District Judge of East Tanjore the decision was upheld. The petitioner

asks this Court to direct under the provisions of Section 115 of the CPC a complaint to be made.

Rule 57 of the Criminal Rules of Practice and Orders of this Court provides that every application made to a Criminal Court under the

provisions of Sections 476, 476-A or 485, of the Code of Criminal Procedure and every appeal filed against an order made under these sections,

or filed in a Court of Session against an order of a Court of Small Causes in the mufassal u/s 486 of the Code of Criminal Procedure shall be

registered as a Criminal Miscellaneous Petition and a Criminal Appeal respectively. The rule further directs that such applications or appeals when

filed in a Civil Court shall be registered as Civil Miscellaneous Petitions and Civil Miscellaneous Appeals respectively and states that the rule

applies to revision petitions also. The question which the Court is called upon to decide is whether the petitions now under discussion shall be

registered as Criminal or Civil Revision Petitions. |n the recent case of In Re: D.S. Raju Gupta, , Pandrang Row, J., held that the jurisdiction which

is exercised by a Civil Court in filing a complaint u/s 476 of the Code of Criminal Procedure is a jurisdiction exercised under that Code and that

revision petitions to this Court should be filed on the Criminal Side and not on the Civil Side. The, learned Judge was of the opinion that Rule 37

was ultra vires. The question is one of considerable importance because the revisional powers of this Court under the Code of Criminal Procedure

are greater than the powers conferred on it by Section 115 of the Code of Civil Procedure. Under the latter Code the Court can only interfere

when a Subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or

to have acted in the exercise of its jurisdiction illegally or with material irregularity. u/s 439 of the Code of Criminal Procedure the High Court has

power to exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428, and therefore has the power to

interfere on a question of fact when in its opinion the finding of a Subordinate Court is against the weight of evidence. The question now under

discussion has been the subject of other decisions of this Court and has also been debated in most of the High Courts of India. I shall in. due

course refer to the cases which have been quoted to us in argument, but before doing so, it is desirable to refer in some detail to the sections of the

Code of Criminal Procedure which have bearing on the question.

Section 195(1)(b) of the Code as it now stands states that no Court shall take cognizance of any offence punishable under Sections 194, 195,

196, 199, 200, 205 to 211 and 228 of the Indian Penal Code when the offence is alleged to have, been committed in, or in relation to, a

proceeding in Court, except on the complaint in writing of the Court or of some other Court to which the Court is subordinate. Sub-section 1(c)

contains a similar provision with regard to an offence described in Section 463 or punishable under Sections 471, 475 or 476 of the Indian Penal

Code. Before the Code of Criminal Procedure was amended the section did not require the Court to file the complaint. It only required the Court

to give its previous sanction to the complaint being filed. Sub-section (3) of Section 195 reads as follows:

For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable

decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court

having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate:

Provided that-

(a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed

to be subordinate; and

(b) Where such appeals lie lo a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court

according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

Section 476 states that when a Civil, Revenue or Criminal Court is of opinion that it is expedient in the interests of justice that an inquiry should

be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c) which appears to have been committed in or in

relation to a proceeding in that Court, the Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and

make a complaint in writing which shall be forwarded to a Magistrate of the first class having jurisdiction, whereupon the Magistrate shall proceed

according to law and as if upon complaint made u/s 200. Section 476-A permits a superior Court to make the complaint where the subordinate

Court has omitted to do so, and Section 476-B allows appeals from orders made on such matters by the subordinate Court. Section 476-B reads

as follows:

Any person on whose application any Civil, Revenue or Criminal Court has refuted to make a complaint u/s 476 or Section 476-A, or against

whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195,

Sub-section (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case

may be, itself make the complaint which the subordinate Court might have made u/s 476 and if it makes such complaint, the provisions of that

section shall apply accordingly.

I have already referred in general terms to Section 439 of the Code, but it is necessary to examine its provisions more closely in conjunction

with the provisions of Section 435. Section 435 states that the High Court or any Sessions Judge or District Magistrate or any Sub-Divisional

Magistrate empowered by the Local Government in this behalf may call for and examine the record of a proceeding before an inferior Criminal

Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the^ correctness, legality or propriety

of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the inferior Court. The section only gives

power to call for the record of a proceeding before an inferior Criminal Court. Section 439 reads as follows:

(1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise

comes to its knowledge, the High Court may. in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426,

427 and 428 or on a Court by Section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally

divided in opinion, the case shall be disposed of in mariner provided by Section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or

by pleader in his own defence.

(3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than u/s 34, the Court shall not inflict a

greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence

by a Presidency Magistrate or a Magistrate of the First Class.

(4) Nothing in this section applies to an entry made u/s 273, or shall be deemed to authorize a High Court to convert a finding of acquittal into one

of conviction.

(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the

party who could have appealed.

(6) Notwithstanding anything contained in this section any convicted person to whom an opportunity has been given under Sub-section (2) of

showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

Although the section does not in terms say that the High Court''s power of revision is confined to criminal cases it seems to me to be obvious

that the section is not intended to travel beyond cases in Criminal Courts. Sub-section (1) states that when the record has been called for the Court

may enhance the ""sentence"". Sub-section (2) says that no order under the section'' shall be made to the prejudice of ""the accused"" unless he has

had an opportunity of being heard. Sub-section (3) deals with the matter of ""sentence"". Sub-section (4) provides that nothing in the section applies

to an entry made u/s 273 of the Code or be deemed to authorize the Court to convert a finding of ""acquittal"" into one of ""conviction"", and Sub-

section (5) prohibits the Court from exercising revisional powers where the Code gives the right of appeal and no appeal has been preferred.

The only other section which calls for mention] before proceeding to examine the authorities is Section 478, which if to the effect that when any

offence contemplated by Section 195 is committed before a Civil or Revenue Court, or is brought under the notice of a Civil or Revenue Court, in

the course of a judicial proceeding, and the case is triable exclusively by the High Court or Court of Session, or the Civil or Revenue Court thinks

that it ought to be tried by the High Court or Court of Session, the Civil or Revenue Court may, instead of sending the case u/s 476 to a Magistrate

for inquiry, itself complete the inquiry, and commit or hold to bail the accused person to Jake his trial before the High Court or Court of Session, as

the case may be. For the purpose of an inquiry under this section the Civil or Revenue Court may exercise all the powers of a Magistrate and its

proceedings in such inquiry-shall be conducted as nearly as may be in accordance with the provisions of Chapter XVIII and of Chapter XXXIII in

cases where that Chapter applies and shall be deemed to have been held by a Magistrate. The fact that the Legislature considered that in such a

case the Civil or Revenue Court should be given the powers of a Magistrate is not without significance. The section shows that in holding the

inquiry it is still a Civil Court and it is necessary to give it the authority of a Magistrate for the purpose.

Rule 37 of the Criminal Rules of Practice of this Court is based on the judgment of Bhashyam Aiyangar, J., in In re Chennanagoud ILR

26(1902)Mad. 139. The learned Judge was firmly of the opinion that, the High Court cannot, under the provisions of Sections 435 and 439 of the

Code of Criminal Procedure, revise an order passed by any Court other than a Criminal Court under Clause (b) or (c) of Sub-section (1) of

Section 195 of the Code according sanction for the prosecution of any person who is alleged to have committed any of the offences referred to in

that section. When the judgment of Bhashyam Aiyangar, J., was delivered the Code of Civil Procedure, 1882, was in force and the corresponding

section to Section 115 of the present Code was Section 622. While he was of the opinion that the provisions of the Code of Criminal Procedure

could not be invoked when there were proceeding in a Civil Court under Sections 195 and 476 of the Code of Criminal Procedure he recognized

that in a proper case the High Court would have powers of revision under the Code of Civil Procedure.

In Ippili Raghunadha Patro and Others Vs. Govinda Patro (dead) and Others, , this Court held that it had no power u/s 115 of the CPC to

interfere in revision with the decision of a Revenue Court, and since that case was deckled this Court has not revised decisions of Revenue Courts

unless the case was of a nature which justified the issue of a writ of certiorari. In Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 : ILR

55 Mad. 883 , which was decided by a Full Bench, doubts were cast on the correctness of the decision in Ippili Raghunadha Patro and Others

Vs. Govinda Patro (dead) and Others, , except so far as Ch. XI of the Madras Estates Land Act, 1908, was concerned, but that decision has

been not overruled and has in fact since been followed. On the other hand, the Calcutta High Court has from early days considered that it had

power to revise decisions of Revenue Courts. In his judgment in In re Chennanagouda I.L.R.(1902)Mad. 139, Bhashyam Aiyangar, J., observed

that as this Court had no power to interfere with the decision of a Revenue Court u/s 195 of the Code of Criminal Procedure it was difficult to see

on what principle similar proceedings of a Civil Court could be revised u/s 439 of the Code of Criminal Procedure. It has been suggested in the

present case that as this Court has no power to interfere with the decision of a Revenue Court it would mean, if the view of Bhashyam Aiyangar,

J., is to prevail, that an order of a Revenue Court directing proceedings to be instituted for an offence referred to in Section 195 of the Code of

Criminal Procedure or an order refusing to institute proceedings would not be subject to revision at all. This may very well be the, case, but

because the legislature has failed to provide for such an eventuality the Court cannot step in and remedy the defect. That must be left to the

legislature.

It was held by a Bench of three Judges of this Court, (Oldfield, Sadasiva Aiyar and Seshagiri Aiyar, JJ.) in King Emperor Vs. Karri Venkanna

Patrudu, , that on an application for revision of an order of a Civil Court granting sanction to prosecute u/s 476 of the Code of Criminal Procedure

the Court''s powers of interference are limited to Section 115 of the CPC and therefore the High Court cannot interfere u/s 439 of the Code of

Criminal Procedure. It is true that Sadasiva Aiyar, J., expressed doubt as to the correctness of the decision of Bhashyam Aiyangar, J., in In re

Chennanagouda I.L.R.(1902)Mad. 139, but as the practice of treating such matters as being of the nature of Civil Revision Petitions had existed

for fourteen years in this Province he did not wish to reopen the question. This decision must be regarded as expressing the law in this Province

unless it is overruled by a Bench of greater strength or the Legislature interferes.

In Janardhana Rao v. Lakshmi Narasamma (1933) 65 M.L.J. 83 ILR 57 Mad. 177 , a Bench composed of Beasley, C.J. and Bardswell and

Burn, JJ., held that in, an appeal u/s 476-B of the Code of Criminal Procedure in a civil proceeding the appellate Court has power, under Clauses

(c) and (d) of Section 423 of that Code to remand the matter to the lower Court for proper disposal. The application of the Code of Criminal

Procedure is certainly not in keeping with the decision in King Emperor Vs. Karri Venkanna Patrudu, , but as Bardswell, J., who delivered the

judgment of the Bench in Janardhana Rao v. Lakshmi Narasamma (1933) 65 M.L.J. 83 ILR 57 Mad. 177 , said that it was unnecessary to

discuss whether the proceedings of a Civil Court u/s 476-B could be revised by a High Court u/s 439 of the Code of Criminal Procedure, and this

in spite of the fact that King Emperor Vs. Karri Venkanna Patrudu, , was mentioned in the Order of Reference, the conclusion is that it was not

intended to question the authority of that decision, illogical though this may be. The basis of the decision in Janardhana Rao v. Lakshmi Narasamma

(1933) 65 M.L.J. 83 ILR 57 Mad. 177 , was that the matter was of a criminal rather than of a civil character, but if this were the governing factor,

the decision in King Emperor Vs. Karri Venkanna Patrudu, , would be wrong. The Bench which decided King Emperor Vs. Karri Venkanna

Patrudu, could not overrule the decision in the King Emperor Vs. Karri Venkanna Patrudu, and did not purport to do so.

In holding in In Re: D.S. Raju Gupta, , that the jurisdiction which is exercised by a Civil Court in filing a complaint u/s 476 of the Code of

Criminal Procedure is a jurisdiction exercised under that Code and is of a criminal nature. Pandrang Row, J., also did not consider the ruling of the

Full Bench in King Emperor Vs. Karri Venkanna Patrudu, or the judgment of Bhashyam Aiyangar, J., in In re Chennanagouda I.L.R.(1902)Mad.

His judgment was based on Janardhana Rao v. Lakshmi Narasamma (1933) 65 M.L.J. 83 ILR 57 Mad. 177 , and on the decision of the

Lahore High Court in Dhanpat Rai v. Balak Ram I.L.R.(1931)Lah. 342 and that of the Bombay High Court in Emperor v. Bhatu Sadu ILR (1938)

Bom. 331 .

The opinion of the Calcutta High Court is in agreement with the opinion of this Court as expressed in In re Chennanagouda I.L.R.(1902)Mad.

139 and King Emperor Vs. Karri Venkanna Patrudu, . In Emperor v. Har Prasad Das I.L.R.(1913)Cal. 477 , a Full Bench of five Judges

(Jenkins, C.J. and Harrington, Stephen, Asutosh Mookerjee and Holmwood, JJ.), held that where an order has been passed by a Civil Court u/s

476 of the Code of Criminal Procedure, Section 439 has no application. The High Court can only exercise the revisional powers u/s 115 of the

Code of Civil Procedure. This decision was accepted without question in Surendranath Maiti v. Sushilkumar Chakrabarti I.L.R.(1931)Cal. 68.

The opinion of the Bombay High Court expressed in Emperor v. Bhatu Sadu ILR (1938) Bom. 331 was also that of a Full Bench. The Court

held that the reference in Section 476-B to Section 195(3) of the Code of Criminal Procedure only determined the forum and not the character of

the Court. It was considered that a Civil Court in passing an order u/s 476-B was exercising jurisdiction in a criminal matter, and therefore its order

could be revised u/s 439 of the Code of Criminal Procedure.

A Full Bench of three Judges of the Allahabad High Court discussed the question in In the matter of the Petition of Bhup Kunwar I.L.R.

(1903)All. 249 . Two of the learned Judges (Stanley, C.J. and Blair, J.) were of the opinion that in a proceeding u/s 476 of the Code of Criminal

Procedure arising out of a civil suit the Court had no jurisdiction to revise u/s 439 of that Code, but the third learned Judge (Bancrji, J.) was of the

contrary opinion. Banerji, J., considered that as Section 439 gave the High Court the right in ""any proceeding"" to exercise the powers conferred on

a Court of Appeal the section must be deemed to apply to a proceeding in a Civil Court as well as to a proceeding in a Criminal Court. He refused

to read Section 439 in conjunction with Section 435. I do not consider that Section 439 can be read alone, but even when read alone I consider

that there is strong indication that it has reference only to criminal proceedings as I have already pointed out.

The practice of the Lahore High Court has been to treat revision petitions as falling within Section 439 of the Code of Criminal Procedure

irrespective of whether the order under revision was passed by a Civil, Criminal or Revenue Court and in Dhanpat Rai v. Balak Ram I.L.R.

(1931)Lah. 342 , a Full Bench decided that the practice should not be departed from.

I have said enough to indicate that there has been a great divergence of opinion on the question, but so far as this Court is concerned, it is at

present governed by the decision in King Emperor Vs. Karri Venkanna Patrudu, , and this Bench has no power to reverse that decision. Nor do I

think it should do so, even if it had the power. As I have indicated, Section 439 only applies to cases which come before the Criminal Courts

within the meaning of the Code of Criminal Procedure. In my opinion a Civil Court does not cease to be a Civil Court when it is considering an

application made to it u/s 476, and if for the purposes of that application it remains a Civil Court it must be governed by the provisions of the CPC

and not by those of the Code of Criminal Procedure. The fact that an appeal from an order passed on an application when it has been dealt with

by a Civil Court lies to an appellate Civil Court emphasizes the civil character of the Court dealing with the application. In the wording of the

relevant sections of the Code of Criminal Procedure, I can find no justification for regarding the Court as being anything but a Civil Court. The

position is not a satisfactory one because an application for revision arising out of proceedings in a Civil suit must be dealt with on a different basis

from a similar application arising out of criminal proceedings, but it is a situation which the Court cannot remedy, but only regret. It is a situation

which the Legislature alone can deal with and I trust that in the near future action will be taken.

I hold that the petitions now before the Court should be numbered as Civil Revision Petitions and dealt with on that basis.

King, J.

I agree.

Krishnaswami Aiyangar, J.

I entirely agree, but inasmuch as it has been suggested in Dhanpat Rai v. Balak Ram I.L.R.(1931)Lah. 342 , per Tekchand, J., that the reasons

given by Bannerji, J., in his dissenting judgment in In the matter of the Petition of Bhup Kunwar I.L.R.(1903)All. 249 , have not been met, I desire

to add a few words. So far as that judgment relied on the practice which then obtained in the Allahabad High Court, it is enough to say that the

practice here has been different. In fact it appears that whichever view found acceptance at the hands of the learned Judges who have had to

consider the point, it was the result to a large extent of the practice prevalent in the particular Court which was also no doubt sought to be

supported by a consideration of the language of the statute. To my mind, the dominant consideration however appears to have been furnished in

almost every one of the decided cases by the existing practice of the Court concerned. It will not altogether be out of place for me to examine the

correctness of the opposite view, in so far as it has been sought to be supported by what has been called the wider language employed in Section

439, as compared with Section 435. The suggestion is that whereas the power to call for records, is restricted by Section 435, to the proceedings

of an inferior Criminal Court alone, such a restriction does not find place in Section 439, which confers the power of revision, on the High Court.

That power is given it is said in the case of any proceeding not necessarily the proceeding of an inferior Criminal Court, the record of which has

been called for by the High Court, or which has been reported for its orders, or which otherwise comes to its knowledge. In other words, the

argument is that while the High Court''s power to call for records is a limited power u/s 435, limited, it is said, to the proceedings of an inferior

Criminal Court, the opening words ""in the case of any proceedings"" in Section 439 standing unqualified by any such limitation, implies a larger

power, that is, a power to revise the proceedings pf all subordinate Courts Civil as well as Criminal. I am not however satisfied that there is any

substance in this argument. It will be seen on examination, that the whole Chapter in which these two sections occur, is concerned with the Subject

of reference and revision and regulates the relative procedure to be followed with respect to the proceedings of inferior Criminal Courts only. All

the sections in this Chapter, except three namely, Sections 439, 440 and 442, refer expressly to subordinate Criminal Courts. The two latter

sections are purely procedural, relating respectively to the right ox audience, and the necessity for certification of the order passed in revision to the

subordinate Court concerned. If we leave them out of account, Section 439 would, if the argument were'' sound, remain the solitary exception in a

Chapter, which but for this exception, is concerned purely with the orders of Criminal Courts; and I am naturally disinclined to adopt such a

construction unless the language is sufficiently express for the purpose.

Section 439 posits a situation in which, the records have been called for u/s 435, or a report received u/s 438, or a proceeding of a

subordinate Court otherwise come to the knowledge of the High Court. By these three modes or any of them information has to reach the High

Court, before it can proceed to exercise its power of revision. Plainly here a multiplicity of channels of information is alone contemplated, and not a

multiplicity in the nature or character of the information itself on which the High Court is to act. The records of an inferior Criminal Court alone, can

be called for u/s 435. The report u/s 438 can again only be in respect of the proceedings of such a Court. Logically it would seem that it must be

the proceedings of a similar Court but coming otherwise to its knowledge that the High Court is empowered by Section 439, to revise. In other

words, the section postulates an identity in the nature and character of the proceedings subjected to its revision though there may be a variety in the

means of information. The words ""or otherwise"" occur in Sections 436, 437 and 438 in connection with ""any record"", ""any case"" and ""any

proceeding"" respectively, and in these contexts it is impossible to imagine Courts other than inferior Criminal Courts being intended. I am

constrained to hold, on a comprehensive consideration of the object and scope of the Chapter, and of the wording of the sections themselves

taken as a whole and not in isolation, that there is no support for the opposite construction.