Inderdeo Ojha vs Emperor

Sinha, J.—This is an application against the concurrent orders of the Courts below convicting the petitioner under Sections 193 and 199, Penal Code, and sentencing him to six months'' rigorous imprisonment and a finp of Rs. 30 and in default of payment of the fine to further rigorous imprisonment for one month. The prosecution ease, shortly stated, is that in a proceeding for execution of a decree a notice under Order 21, Rule 22, Civil P. C, had to be served on one of the judgment-debtors, named Rame-shwar Marwari who was one of a large number of defendant judgment-debtors in a mortgage action. The petitioner swore an affidavit in support of the service said to have been effected on Rameshwar Marwari on 18th June 1941. In that matter the petitioner is said to have acted as the identifier. The prosecution alleged ''that''at the material time Rameshwar Marwari was on pilgrimage at Badrinath in Garhwal Rstate. Later, Rameshwar Marwari appeared in Court, and alleged that the service report against him and the affidavit in support of the service sworn to by the petitioner, were false, inasmuch as he was not present at the place at which the notices appear to have been served. The executing Court held a preliminary enquiry, and, in the course of the enquiry, the petitioner showed cause against his proposed prosecution. He alleged that he did not personally know Rameshwar Marwari, that there were a number of persons of the same name, and that he identified a Rameshwar Marwari on enquiry made from other persons named.

The Subordinate Judge, in whose Court the execution proceedings were pending, accepted the explanation offered by the petitioner, and refused to make a complaint against him. Against his orders refusing to file the complaint, Rameshwar Marwari went up in appeal. The appeal was filed in the Court of the District Judge of Muzaffarpur who directed it to be heard by the Additional District Judge. After hearing the parties, the Additional District Judge directed that the complaint be filed against the petitioner. Accordingly, the petitioner was placed on his trial and convicted and sentenced by the Courts below as stated above. Against the orders of his conviction and sentence by the Courts below, the petitioner moved this Court in its revisional jurisdiction, and obtained the rule. The matter was first heard by a single Judge of this Court before whom the point was raised apparently for the first time that the complaint lodged against the petitioner, resulting in his conviction, had not been made by the competent authority within'' the meaning of Section 195 (3), Criminal P. C, inasmuch as the Court of the Subordinate Judge is not subordinate to the Court of the Additional District Judge. Reli-ance was placed upon the decision of Varma J., sitting singly in Harnandan Gir v. Bawan Singh A. I. R. 1941 Pat. 592 . In that case Varma J., laid it down that the Court to which a Subordinate Judge is subordinate within the meaning of Section 195 (3), Criminal P. C, is the Court of the District Judge and not the Court of the Additional District Judge, the reason being that appeals from the orders or decrees of Subordinate Judge "ordinarily lie" to the Court of the District Judge, and not to the Court of the Additional District Judge, and that consequently an Additional District Judge was not competent to file a complaint. As the single Judge of this Court before whom this case was first placed for hearing was of the opinion that this was a matter of some general importance, he directed that it should be heard by a larger bench. Hence, this matter has been heard at some length by us, and the parties given full opportunity, even by adjournment during the course of the hearing, to place all the relevant authorities and provisions of the law bearing on the point.

In this case, the facts are not at all in dispute. The Subordinate Judge, who was in seisin of the execution proceedings, and in whose Court the alleged false affidavit was filed by the decree-holder as sworn to by the petitioner, refused to file a complaint for the petitioner''s prosecution for the alleged offences under Sections 193 and 199, Penal Code. The appeal against the order of the Subordinate Judge refusing to file the complaint was preferred in the Court of the District Judge. For the sake of speedy disposal, the District Judge transferred this appeal to be heard by the Additional District Judge who, ultimately, directed that a complaint be filed against the petitioner, and, upon a complaint so filed, the petitioner has been convicted and sentenced by the Courts below. Mr. S. N. Sahay appearing in support of the petition has contended, in the first instance, that this was not a case in which there should have been a conviction on the peculiar facts of the present case. Admittedly, there were a number of persons bearing the same name and living in the town of Muzaffarpur. Hence, it may be that the petitioner identified the wrong person and swore an affidavit believing that he had identified the right person. There was, it is contended, enough room for a bona fide mistake. It was also pointed out in support of this contention that there were about 20 judgment-debtors to be served with the processes in the execution proceedings, and, it was not urged by the judgment-debtors that notices on the other persons to be served had not been properly and correctly served. Hence, it was contended that there was no motive for having a false service of processes and a false affidavit in support thereof filed in Court. Secondly, it was contended that, as the complaint had been filed by the Additional District Judge to whom the Subordinate Judge, who dealt with the case in the first instance, was not subordinate within the meaning of Section 195 (3), Criminal P. C, the whole proceedings, leading to the conviction and sentence of the petitioner, were void ab initio. Hence, the only question of law to be considered and decided in this case is whether the complaint filed in this case leading to the prosecution and conviction of the petitioner was filed by the competent authority within the meaning of Section 195, Criminal P. C. As the offence is alleged to have been committed in the course of the execution proceedings pending in the Court of the Subordinate Judge of Muzaffarpur, the question in controversy between the parties has to be determined with reference to the relevant provisions of the Code of Criminal Procedure and of the Bengal, Agra and Assam Civil Courts Act, 12 of 1887, which, for the sake of brevity, will be referred to hereinafter as the Civil Courts Act. Section 195, Criminal P. C, provides that no Court shall take cognizance of any offence punishable under Sections 193 and 199, Penal Code (confining our attention to the sections appropriate to the present case) when such an offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. And Sub-section (3) of Section 195 provides that :

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 decree, of such former Court...."

Proviso (a) to Sub-section (3) of Section 195 of the Code lays down that

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.

Under the provisions of Section 476 B, Criminal P. C, when the Subordinate Judge refused to file a complaint against the petitioner, an appeal against his order lay to the Court to which the Subordinate Judge is subordinate within the meaning of Section 195 (3). Accordingly, as already stated, in the present case, the appeal was filed in the Court of the District Judge, but was subsequently transferred by him to be heard and disposed of by the Additional District Judge. The question is : Could the Additional District Judge have heard the appeal and directed the filing of a complaint against the petitioner ? Prima facie, we were inclined to the view, in the beginning of the hearing of the case, that the Court of the District Judge and the Court of the Additional District Judge, being Courts of co-ordinate jurisdiction in principle they should have co-ordinate powers, especially in view of Section 8, Civil Courts Act, which provides as follows:

(1) When the business pending before any District judge requires the aid of Additional Judges for its speedy disposal, the Provincial Government may, having consulted the High Court, appoint such Additional Judges as may be requisite.

(2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the Distrust Judge may assign to them, and in the discharge of those functions, they shall exercise the same powers as the District Judge.

But on further consideration of the provisions of the Civil Courts Act, it appears to me that the Court of the Additional District Judge is not the Court to which "appeals ordinarily lie." Section 3, Civil Courts Act, runs as follows:

There shall be the following classes of Civil Courts under this Act, namely: (1) The Court of the District Judge; (2) the Court of the Additional Judge; (3) the Court of the Subordinate Judge; and (4) the Court of the Munsif.

It follows from this that the Court of the Additional District Judge is distinct and separate from that of the District Judge unlike the position of an Additional Judge of a High Court. Chapter 3, Civil Courts Act, headed "Ordinary Jurisdiction" contains Section 21, which runs as follows:

(1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie, (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and (b) to the High Court in any other case.

(2) Save as aforesaid, an appeal from a decree or order of a Munsif shall lie to the District Judge.

(3) Where the function of receiving any appeals which lie to the District Judge under Sub-section (1) or Sub-section (2) has been assigned to an Additional Judge, the appeals may be preferred to the Additional Judge.

(4) The High Court may, with the previous sanction of the Provincial Government, direct, by notification in the Official Gazette that appeals lying to the District Judge under Sub-section (2) from all or any of the decrees or orders of any Munsif shall be preferred to the Court of such Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly.

It would appear from a perusal of Section 3, read with Section 21, Civil Courts Act, that the appeal in the present case from the order of the Sub-ordinate Judge ordinarily lay to the Court of the District Judge. Indeed, the appeal was filed in the Court of the District Judge. Sub-section 8 of Section 21 does make provision for assigning to an Additional Judge the function of receiving appeals which lie to the Court of the District Judge. But, in the present Case, it has not been said that the function of receiving such appeals had been assigned to the Additional District Judge who filed the complaint in the present case. If there had been such an order assigning to the Additional District Judge the function of receiving appeals which ordinarily lie to the Court of the District Judge, the matter would have stood on a different footing. It may be noted in this connexion that, whereas Sub-section (4) provides for a notification in the Official Gazette assigning to a Subordinate Judge the function of receiving appeals from the orders of Munsifs by the High Court with the previous sanction of the Provincial Government, Sub-section (3) of the very same section does not indicate as to who has the power of assigning to ''the Additional District Judge the function of receiving any appeals which ordinarily lie to the District Judge. The position, therefore, seems to be that the District Judge was the competent authority to receive the appeal, but not the Additional District Judge. But, under the provisions of Section 8, Civil Courts Act, the District Judge could, and in the present instance did, assign to the Additional District Judge the hearing of the appeal from the orders of the Subordinate Judge refusing to file the complaint. The learned Additional District Judge, reversing the findings of the learned Subordinate Judge, came to the conclusion that this was a fit case for filing a complaint against the petitioner, and, accordingly, he directed the complaint to be filed. Could he under the provisions of the Criminal Procedure Code and the Civil Courts Act read together, be competent to do so ? As at present advised, I have come to the conclusion, not without some hesitation, that the Additional District Judge was not competent to file the complaint. This conclusion is certainly anomalous in view of the position already indicated, namely, that the District Judge, having entertained the appeal, could have transferred the case to be heard and disposed of on merits by the Additional District Judge, which included the possibility of his deciding to file a complaint. But, in my opinion, the statute law, as it stands at present, leads to the conclusion that the Additional District Judge is not competent to file the complaint for the simple reason that appeals from the orders or decrees of the Subordinate Judge do not ordinarily, under the provisions of the Civil Courts Act, lie to him. The Civil Courts Act makes a distinction between the function of receiving an appeal and hearing and disposing of it on merits. For example, Section 21 refers to the Court of the District Judge to whom appeal would lie from the decree or order of a Munsif or a Subordinate Judge, and Section 22 makes provision empowering him to transfer to a Subordinate Judge any appeal from the decrees or orders of Munsifs. Hence, in my opinion, though Section 8 provides that when an Additional District Judge is assigned any of the functions of the District Judge he will exercise the same powers as the District Judge, the Additional District Judge in the present case could not have directed the filing of the complaint except when he had been assigned by the proper authority the function of receiving appeals from the orders of Subordinate Judges. Hence, in order to avoid the inconsistency between the position that, though the Additional District Judge could hear an appeal transferred to his file by the District Judge, he could not follow it up by directing the filing of a complaint in a proper case, it must be held that in cases like the present, where the hearing of the appeal involves the further question of filing of a complaint, the Additional District Judge is not competent to hear the appeal without the District Judge''s function both of receiving as also of hearing appeals being assigned to him by the relevant authority.

It may be mentioned in this connexion that the Courts of the Sessions Judge and the Additional Sessions Judge provide no analogy to the Courts of the District Judge and the Additional District Judge, because the Criminal Procedure Code contemplates a ''Court of Session for every division, and there may be several Judges for the same Court of Session. But the question has arisen whether a Magistrate of the first class, empowered by the Provincial Government to hear appeals from the judgment of Magistrates of second or third class, can file a complaint for prosecution of a party who may have committed an offence in, or in relation to, proceedings coming up before sueh a Magistrate in his appellate jurisdiction. Such a case stands in pari materia with the present case. It has been held in the case in Mohim Chandra Nath Bhowmick Vs. Emperor, that such a Magistrate, exercising appellate powers, is not competent to hear appeals u/s 476B, Criminal P. C, from the orders of Subordinate Magistrate inasmuch as he is not a Court to which appeals from such Magistrates'' orders ordinarily lie. The same rule was laid down by a Full Bench of the Madras High Court in Eroma Variar v. Emperor 26 Mad. 656 . The learned standing counsel, who appeared on behalf of the Crown in this case, placed great reliance upon the decision of a single Judge of this Court reported in Kusum Sao Vs. Janak Lal, . In that case, it was held that an Additional Sessions Judge is competent to grant sanction in a matter arising out of a trial before a Magistrate having first class powers. In that case the provisions of the Civil Courts Act did not come up for consideration. The matter was decided with reference to the provisions of the Code of Criminal Procedure only. Hence, that decision does not touch the point in controversy in the present case. The learned standing counsel also referred to the decision of a Divisional Bench of this Court in Rarachandra Padhi v. Emperor AIR 1929 Pat. 367 in which it was held that Court of the Subordinate Judge at Sambalpur was the Court to which appeals ordinarily lie within the meaning of Section 195(3), Criminal P. C, from an order or decree of the Munsif. But that was a decision based on the special notification by the High Court, with the previous sanction of the-Local Government, directing that appeals would lie to the Sub-ordinate Judge''s Court. That case would have settled the controversy in favour of the opposite party in this case, if there had been a notification to the effect that the Additional District Judge had been empowered to receive appeals from the decision of Subordinate Judges in the district of Muzaffarpur. Hence, that case also is of no assistance to the Crown in the present case.

It was held by a Division Bench of the Calcutta High Court in Ram Charan Chanda v. Taripulla 39 Cal. 774 that, for the purposes of Section 195, Criminal P. C, a Munsif is not subordinate to a Subordinate Judge and that the Court of the District Judge was the only Court to which an appeal would properly lie from an order of Munsifs refusing to grant sanction to prosecute a party to a litigation in that Court. This decision was followed by a single Judge of this Court in Dulari Koeri v. Fauzdar Khan AIR 1933 Pat. 179. In that case James J. held that the Court of the District Judge is the only Court to which the Court of the Munsif is subordinate within the meaning of Section 195 (3), Criminal P. C, so that the appeal u/s 476 B can be heard only by the District Judge himself; and that consequently the District Judge had no power to transfer an appeal of that nature to the Subordinate Judge for hearing. The reasonings of that judgment apply with equal force to the facts of the present case. That the words of Section 195, Criminal P. C, have got to be very strictly construed is illustrated by the judgment of Rowland, J. reported in Thakur Prasad v. Emperor AIR 1936 Pat. 122. In that case an appeal against the orders of the Subordinate Judge was preferred to the High Court. The complaint nad been directed to be filed against the appellant in a proceeding arising out of a suit valued at over Rs. 5,000. The appellant, therefore, preferred an appeal directly to the High Court, inasmuch as an appeal from a decree in the suit itself would lie to the High Court alone. But the preliminary objection raised on behalf of the Crown to the effect that the appeal lay to the District Judge was upheld. The Court held, in view of the provisions of Sub-section (3) of Section 195, Criminal P. C, that as the District Judge''s Court was the appellate Court of inferior jurisdiction to that of the High Court, the appeal lay to the Court of the District Judge. Hence, in my opinion, though the position is anomalous, as already indicated, the words of the statute must be strictly construed. That being so, it must be held that in the present case the Court of the Additional District Judge was not, competent to hear the appeal from the orders of the Subordinate Judge refusing to file a complaint. It must follow that the present prosecution was launched without a complaint by the proper authority, and must, therefore, be quashed.

I have not gone into the merits of the case as raised in the first part of the argument addressed to us by counsel for the petitioner in view of the conclusion I have arrived at on the pure question of jurisdiction raised by him.

The result of all these considerations is that the application must be allowed and the rule made absolute.

Agarwala, J.

I agree.