Fauzdar Chamar vs Narendranath Jah

Agarwala, J.—The facts out of which this application has arisen are as follows. In a rent suit the defendant sought to administer a special oath to the plaintiff, and a summons was accordingly issued for the personal appearance of the plaintiff. The serving peon reported that he had met the plaintiff who was identified by Fauzdar Chamar, but that the plaintiff having refused to accept the service of summons it was affixed to his house. Later, an affidavit was sworn on behalf of the plaintiff and filed in the rent suit, stating that the plaintiff had left his home previous to the alleged service of this summons and was not at home on the day of the service.

Fauzdar Chamar, who had acted as identifier, was then called upon to show cause why he should not be prosecuted for false identification and for false personation. The learned Munsif held an inquiry and came to the conclusion that the case was not one in which the prosecution of the identifier should be lodged. An appeal against this order was preferred to the District Judge who transferred it to the Subordinate Judge. The Subordinate Judge dismissed the appeal on the ground that in his opinion, the appeal was barred by limitation, but decided, in the circumstances of the case, to take action suo moto u/s 476-A. Criminal P.C. The present appeal is directed against the order.

So far as the order of the Subordinate Judge making the complaint is concerned, it is challenged on the ground that the Subordinate Judge was not the Court to which appeals from orders of the Munsif ordinarily lay, and therefore, he was not authorized u/s 476-A to make a complaint. This contention is supported by the decision of James, J., in Dulari Koeri Vs. Fauzdar Khan and Another, . Mr. Bankim Chandra De for the Crown relied on the decision in Ramchandra Padhi Vs. Emperor, . That was a case in which an appeal u/s 476-B, Criminal P.C., had been preferred to the Subordinate Judge of Sambalpur who had been specially authorised by a notification under subs. (4), Section 21, Bengal, Agra and Assam Civil Courts Act of 1887, to entertain appeals from the Munsif''s order.

In the present case it has not been shown that the Subordinate Judge was authorized to entertain such appeals. The order of the Subordinate Judge making a complaint against Fauzdar Rai is accordingly set aside. With regard to the appeal, it is clear for the reasons stated above, that the Subordinate Judge had no power to entertain it. The order of the Subordinate Judge dismissing the appeal from the decision of the Munsif must therefore be set aside and the appeal remanded to the District Judge for disposal according to law.