Lalji Tewari and Dipak Tewari vs Emperor

Atkinson, J.—This application in revision comes before this specially constituted Bench on a reference made by my learned brother Mr. Justice Jwala Prasad and myself with the consent of the Chief Justice.

The question which arises for decision in this application is to what Court, if any, can an application, with respect to a sanction given or refused by a Causes of Small Causes u/s 195 of the Code of Criminal Procedure, be made for its revocation or grant as the case may be? Before dealing specifically with the point requiring determination, it is desirable briefly to examine the scope of Section 195 of the Criminal Procedure Code, and the procedure laid down with reference to the rights created thereby.

Section 195 of the Criminal Procedure Code confers upon certain authorities the right of granting sanction to prosecute certain individuals for offences against the specific sections of the Indian Penal Code mentioned therein. The power conferred to grant or refuse sanction rests (a) with certain public servants and (b) with Courts before whom offences against public justice may have been committed.

By Sub-section (2) of Section 195 of the Criminal Procedure Code the term "Court" is defined, and "Court" is therein declared to mean a Civil, Revenue or Criminal Court, but does not include a Registrar or a Sub-Registrar under the Indian Registration Act of 1877. Therefore, I take it, the term "Court" applies without restriction to the general classification of all Civil Courts, all Revenue Courts and all Criminal Courts.

Sub-section (6) of Section 195 provides that any sanction given or refused may be revoked or granted by any authority to which the authority granting or refusing it is subordinate. Sub-section (6), however, does not apparently give an express and unqualified right of appeal to the persons or parties against whom sanction has been given or refused respectively. It is merely an enabling section authorising a superior authority to review an order of sanction granted or refused by a subordinate authority.

The word authority", as used in Section (6), applies to public servants within the meaning of Clause (a) of Sub-section (1) and to Courts within the meaning of Clauses (b) and (c) of Sub-section (1). When, however, the authority granting or refusing sanction to prosecute is a Court, then the provisions of Sub-section (6) apply and regulate the procedure to be adopted with reference to the authority to be vested with power to review a sanction antecedently given or refused. Sub-section (7) runs as follows: "For the purposes of this section every Court shall be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie:" Then by way of explanation of the meaning and purport of Sub-section (7) are added three Clauses (a), (6) and (c) for the purpose of defining when one Court is or may be deemed to be subordinate to another, with a view of ascertaining the Court which has power to review a sanction to prosecute granted or refused by a Court subordinate to it.

Section 195 of the Criminal Procedure Code is self-contained, and provides its own procedure, and from within the four corners of the section itself we must ascertain its true meaning and intent.

Sanction to prosecute the petitioners Lalji Tiwari and Dipak Tiwari was granted by the Judge of the Small Cause Court of Chapra on the 31st January 1919 under Sections 209, 210, 467 and 471 of the Indian Penal Code, read with Section 195 of the Criminal Procedure Code. From the sanction so granted application was made by the petitioners respectively by separate applications to the High Court to revoke the sanction so granted by the Judge of the Small Cause Court of Chapra. It was contended before us that in such cases the High Court is the authority within the meaning of Sub-section (7) of Section 195 to review a sanction granted or refused by a Small Cause Court Judge, inasmuch as the Court of Small Causes is immediately subordinate to the High Court, as appeals from a Court of Small Causes lie directly to the High Court by virtue of the provisions of Section 25 of the Provincial Small Causes Courts Act of 1887.

Mr. Yunus argues that the right to review a sanction given or refused by a Small Cause Court is only entertainable by the High Court, and he relies upon Sub-section (7) of Section 195.

The argument of Mr. Yunus is based entirely on the right of revision and superintendence exercisable by the High Court over a Court of Small Causes u/s 25 of the Small Causes Courts Act, and he contends that Section 25 confers in a modified form a right of appeal even though applications presented u/s 25 to the High Court may be revisional; and he cites in support of this contention a case reported as Sheo Nandan Prasad v. Emperor 46 Ind Cas 977 : 3 P.L.J. 581 : 19 Cri.L.J. 833 (F.B.) : (1919) Pat. 1 : 5 P.L.W. 324 in which it was laid down that an application in revision is an appeal in a modified form.

However, we feel unable to assent to the first branch of the argument addressed to us by Mr. Yunus.

Sub-section (7) of Section 195 refers to oases in which an unqualified and absolute right of appeal is given from the decision by one Court to another at the instance of a party to the litigation before it. Section 25 of the Provincial Small Causes Courts Act does not confer an absolute and unqualified right of appeal. It merely enables the High Court in the exercise of its discretion and power of superintendence to revise the proceedings of the Small Cause Court with a view of seeing that justice is done and that the law is properly applied and administered. In no sense, therefore, can it be said that the High Court is the Court to which appeals from Small Cause Courts ordinarily lie, in the sense contemplated by Sub-section (7) of Section 195.

Alternatively Mr. Yunus suggests that if his first argument fails that then there is no Court in existence capable of reviewing a sanction to prosecute given or refused by a Small Cause Court; and in support of this contention he relies upon what he conceives to be the true construction of Clause (c) of Sub-section (7), which he argues has no application to a Small Cause Court and reliance is placed in Support of this proposition upon the rulings reported as Ajudhya Prasad v. Ram Lal 13 Ind. Cas. 284 : 34 A.197 : 9 A.L.J. 124 : 13 Cri.L.J. 44, Ambica Tewary v. Emperor 34 Ind. 284 : 34 A. 197 : 9. A.L.J. 124 : 13 Cri.L.J. 208 and Sukhdeo Singh v. District Magistrate of Muzaffarpur 38. Ind Cas 754 : 2 P.L.J. 1 : 18 Cri.L.J. 370.

Mr. Yunus admits that Clauses (a) and (6) of Sub-section (7) of Section 195 of the Criminal Procedure Code cannot apply to a Small Cause Court, inasmuch as there is no Court (if his first argument fails) to which an appeal ordinarily lies from a proceeding in a Small Cause Court; and thus it is conceded that the only clause of Sub-section (7) which can apply with reference to the question now requiring determination by this Court is Clause (c) and in support of this contention reliance is strongly placed on the reported decisions of this Court which were decided by our late and distinguished Chief Justice, Sir Edward Chamier, that Clause (c) does not apply to a Small Cause Court and that, therefore, a Small Cause Court is a Court whose orders as to granting and refusing sanction to prosecute are immune and incapable of review by any superior authority whatsoever.

Clause (c) runs as follows: "Where no appeal lies, such Court shall be deemed to be subordinate to the principal Court of original jurisdiction within the local limits of'' whose jurisdiction such first mentioned Court is situate."

Two contentions are put forward as to what is the construction of this clause: The first is that the principal Court of original jurisdiction in any district or area defined by the Local Government under its powers is the District Court; but that inasmuch as the District Court has no original jurisdiction in Small Cause Court suits that, therefore, no right of review can rest with it in respect of sanctions granted or refused by a Small Cause Court.

The second contention advanced is that on the authority of the decisions cited, Clauses (a), (b) and (c) of sub Section 7 of Section 195, Criminal Procedure" Code, deal not with Courts granting or refusing sanction to prosecute, but to cases in which sanction to prosecute has been granted or refused, and that consequently Clause (c) applies to a proceeding of a non-appealable character in an original suit in which an appeal Jay This argument was assented to by a Division Bench of the Allahabad High Court reported as Ajudhya Prasad v. Ram Lal 13 Ind. Cas. 284 : 34 A. 197 : 9 A.L.J. 124 : 13 Cri.L.J. 44 and as a logical extension of the ratio decidendi of that decision, Chief Justice Chamier held in this Court in a case reported as Ambica Ternary v. Emperor 34 Ind. 284 : 34 A. 197 : 9. A.L.J. 124 : 13 Cri.L.J. 208 that a Small Cause Court was not directly or indirectly within the purview of Clause (c) of Sub-section (7) of Section 195 of the Code of Criminal Procedure.

Mr. Justice Roe, following the decision of Sir Edward Chamier in this Court, likewise yielded to a similar contention, and held that the District Court was not the Court of original jurisdiction with reference to Small Cause Court matters and suits, and that the District Court could not, therefore, be said to be the authority contemplated by Clause (c) for reviewing sanctions granted or refused by a Small Cause Court situated within its territorial limits. Mr. Justice Roe further held that on the true construction of Clause (c) of Sub-section (7) the only Court of original jurisdiction in existence in respect of Small Cause Court matters was the Small Cause Court itself and that, therefore, the Small Cause Court was the only authority capable of reviewing its own decisions granting or refusing sanction to prosecute. This decision was criticised in the Full Bench ruling reported as Chidda Lal v. Bhajan Lal 42 Ind. Cas. 167 : 39 A. 657 : 15 A.L.J. 721 : 18 Cri.L.J. 935 (F.B.), and as was pointed out, such a construction of Clause (c) of sub-section 7 would lead to hopeless anomaly and render the interpretation of the subsection 7 of Section 195 an obvious absurdity., a result which we must presume the Legislature never intended according to the established rule for the construction of Statutes.

The fundamental error underlying the decision of the Division Bench of the Allahabad High Court reported as Ajudhya Prasad v. Ram Lal 13 Ind. Cas. 284 : 34 A.197 : 9 A.L.J. 124 : 13 Cri.L.J. 44 appears to us to be in construing sub-section 7 of Section 195 and the explanatory clauses annexed thereto as dealing only with cases in which appeals lie to certain Courts. It appears to us for the purpose of construing sub-section 7 of Section 195 to be immaterial whether an appeal lies in certain cases or not; but the vital consideration is whether an appeal ordinarily lies from one Court to another superior to it, and to which the first Court is as a general rule subordinate If this then be the true construction of Sub-section (7), as we believe it is then Clause (c) of Sub-section (7) cannot have the restricted and limited interpretation put upon it by the Division Bench of the Allahabad High Court in the ruling already referred to.

Sub-section 7 purports to define when a Court is subordinate to another; and in order to make the meaning of the Legislature clear illustrations are appended to that sub-section in sub-clauses (a), (b) and (c) for the purpose of showing when one Court is or is deemed to be subordinate to another. The illustrations contained in Clauses (a) and (6) are free of difficulty; and Clause (c), we think, was intended to apply where no appeal at all lay from the Court exercising the functions and powers conferred by Section 195 of the Criminal Procedure Code, A Small Cause Court is such a Court, because no appeal lies from it save and except by way of revision u/s 25 of the Provincial Small Causes Courts Act, and to a limited extent in certain respects u/s 24 of the Small Causes Courts Act to the District Judge.

The majority of us are of opinion that Clause (c) of sub-section 7 of Section 195 of the Criminal Procedure Code applies only to Courts from which no appeal lies, whether the Court be a Civil Court, a Criminal Court or a Revenue Court.

The Government Advocate, however, submits a very clear argument in answer to the case put forward on behalf of the petitioners by Mr. Yunus. Shortly summarised, the Government Advocate''s contention is that in cases of Small Cause Courts a review of a grant or refusal of sanction to prosecute is only entertainable by the District Judge''s Court, and not by the High Court. This argument on behalf of the Government Advocate is subdivided into two branches:

It appears that in this province only one Small Cause Court was created under the provisions of the Small Cause''s Courts Act of 1887 and that that Court is the Small Cause Court situate at Dinapur. In every other District a Subordinate Judge or Munsif is vested with the powers of a Small Cause Court Judge u/s 25 of the Civil Courts Act of 1887; and thus the Government Advocate contends that the Subordinate Judge or Munsif, as the case may be, vested with the powers of the Small Cause Court Judge is still, while acting as a Small Cause Court Judge, nevertheless a Munsif or a Subordinate Judge, as the case may be, and that in testing the right of the authority to review a sanction given or refused by a Subordinate Judge or a Munsif while so acting as a Small Cause Court''s Judge, the authority to review such sanction is with the tribunal to whom an appeal ordinarily would lie from a Subordinate Judge or a Munsif as such and that, therefore, the provisions of Clause (a) of sub-section 7 come into play and the authority to review such sanction given by a Subordinate Judge or a Munsif vested with powers of a Small Cause Court''s Judge is the Court to whom an appeal would ordinarily lie from each of them. This argument was strongly assailed in reply: and in our opinion, it is not well founded. The Subordinate Judge or Munsif vested with powers of the Small Cause Court''s Judge exercises, while acting as such, a different and wholly distinct jurisdiction from that which they exercise either as a Subordinate Judge or as a Munsif; and consequently that the limitations and rights and obligations attaching to their jurisdiction as a Subordinate Judge or a Munsif cannot affect the rights and obligations which they exercise in their capacity as a Judge of a Small Cause Court. The two jurisdictions are materially independent of each other.

In the alternative the Government Advocate contends that then the present applications are governed by Clause (c) of Sub-section (7), and he argues that in every case where no appeal lies from a Court that then the authority to review a grant or refusal to sanction a prosecution is the principal Court of original jurisdiction within the local limits of whose jurisdiction such first-mentioned Court is situate; and he urges that this applies in every case whether it be civil, criminal or revenue. The learned Government Advocate concedes that no appeal lies directly from a Small Cause Court to the District Judge''s Court as such, save within the limits of Section 24 of the Small Causes Courts Act; but be contends that Clause (c) was not designed to create new or disestablish existing rights or to fetter a jurisdiction antecedently existing, but that it was merely designed to constitute an authority which should be deemed for the purpose of Clause (c) as the authority capable of reviewing a sanction to prosecute granted or refused by a Court from which no appeal lay. In the prior Code of Criminal Procedure in 1882, the clause which corresponds to Clause (c) of Sub-section (7) of the present Code provided that in the case of Small Cause Courts the right of review in matters of sanction should rest with the Sessions Court. This was an extraordinary provision to have enacted, inasmuch as the Court of Session as a Criminal Court had no jurisdiction whatsoever over a Court of Small Causes, However, the enactment contained in the prior Code of 1882 may be regarded to afford some indication of why the change was made. in Clause (c) as it, at present, stands; the idea being to take a way the power of review from the Sessions Court, viz., a Criminal Court, and giving it to the Civil Court of principal original jurisdiction in which the Small Cause Court is within the limits of the territorial jurisdiction of the District Court situate. The later enactment is no more arbitrary than the prior enactment, and for apparent reasons the principal Civil Court was given a special jurisdiction to review sanctions granted by a Court exercising a civil jurisdiction from whom no appeal lay.

District Judge is defined by Clause 15 of the General Clauses Act of 1897 as being the Judge of the principal Court of original jurisdiction in which the District Court is situate. It'' would appear that there is no corresponding statutory enactment defining a principal Court of original jurisdiction referable to '' criminal and revenue matters and proceedings; but by analogy it would seem to be that in criminal cases the District Magistrate is the Court of original criminal jurisdiction, while in revenue oases the Collector is the Court of original jurisdiction.

Shortly summarised, therefore, Clause (c) clearly appears to bear the interpretation that where no appeal lies from a Court administering civil, criminal or revenue jurisdiction respectively, that then the principal Court of each of such classifications of jurisdiction shall be deemed the principal Court for reviewing sanctions granted or refused by a Court in respect of each from which no appeal lies.

It was contended by Mr. Yunus that the Small Cause Court; though a Court, is not a Civil Court; and the only ground suggested to support such a contention was, that the Small Cause Court as a Civil Court was not mentioned in the enumeration of Civil Courts specified in the Civil Courts Act.

With great respect to Mr. Yunus''s argument we think it is entirely and absolutely unfounded. The test is not whether the Court is within the purview of the Civil Courts Act; but whether it is a Court constituted for the administration of civil justice, and regulating the civil rights of His Majesty''s subjects inter se. Undoubtedly the Small Cause Court is a Court exercising civil jurisdiction, and as such is within the general scope and purview of Section 195 of the Code of Criminal Procedure.

However, the question which we have to consider has been recently the subject of a considered judgment of a Full Bench of the Allahabad High Court, presided over by the Acting Chief Justice, with his colleagues Mr. Justice Piggott and Mr. Justice Walsh. The Allahabad High Court unanimously held that the decision of Sir Edward Chamier reported as Ajudhya Prasad v. Ram Lal 13 Ind. Cas. 284 : 34 A. 197 : 9 A.L.J. 124 : 13 Cri.L.J. 44 was an erroneous expression of the law; and the Allahabad High Court reversed the authority of the decision, which was challenged; and likewise the Allahabad High Court dissented in strong and definite terms from the decisions of this Court reported as Ambica Tewary v. Emperor 34 Ind. 284 : 34 A. 197 : 9. A.L.J. 124 : 13 Cri.L.J. 208 and Sukhdeo Singh v. District Magistrate of Muzoffarpur 38. Ind. Cas. 754 : 2 P.L.J. 1 : 18 Cri.L.J. 370. By the ruling of the Full Bench of the Allahabad High Court it is now the positive law of the United Provinces that Clause (c) of Sub-section (7) of Section 195 of the Code of Criminal Procedure applies to a Small Cause Court, and that the authority to review its orders granting or refusing sanction to prosecute is the District Court in which such Small Cause Court is situate.

Following the decisions already referred to in this Court the matter was also agitated in the Calcutta High Court and discussed in a ruling reported as Nibaran Chandra v. Akshop Kumar Banerjee 41. Ind. Cas. 311 : 21. C.W.N. 948 : 26 C.L.J. 138 : 18 Cri.L.J. 791, and in that case the learned Judges of the Calcutta High Court held that it had always been the universal practice in Bengal that in respect of Small Cause Courts constituted under the Provincial Small Causes Courts Act of 1887, that the District Court was the Court to review grants or refusals of sanctions to prosecute made by a Small Cause Court; and that the practice was too long settled and too firmly established to admit of being reviewed at so late a period of time, and ''accordingly the Calcutta High Court declined to follow the decisions of this Court reported as Ambica Tewary v. Emperor 34 Ind. 284 : 34 A.197 : 9. A.L.J. 124 : 13 Cri.L.J. 208 and Sukhdeo Singh v. District Magistrate of Muzaffarpur 38. Ind. Cas. 754 : 2 P.L.J. 1 : 18 Cri.L.J. 370 respectively.

So also in a ruling reported as Jamna Das v. Sabapathy Chetti 12 Ind. Cas. 521 : 36 M. 138 : 10 M.L.T. 278 : (1911) 2 M.W.N. 259 : 21 M.L.T. 1074 : 12 Cri.L.J. 545 the High Court of Madras declined to follow the decisions of this Court. It has been stated more than once by distinguished Judges of this Court that where a uniform course of practice existed referable to particular legal principles in the province of Bengal before the partition, that then this Court would recognise such practice in the administration of law in this province. Therefore on the grounds of continuity from long established practice I would have thought that in this province at least a new departure would not have been hastily embarked on without consideration which was inconsistent with the prior existing practice prevailing in old Bengal when the present province of Behar and Orissa fell within its jurisdiction.

However, the decision of Sir Edward Chamier reported as Ajudhya Prasad v. Ram Lal 13 Ind. Cas. 284 : 34 A. 197 : 9 A.L.J. 124 : 13 Cri.L.J. 44 having been so severely criticised, the entire foundation to support the authority of his pronouncement in this Court as declared in the ruling reported as Ambica Tewary v. Emperor 34 Ind. 284 : 34 A. 197 : 9. A.L.J. 124 : 13 Cri.L.J. 208 loses much of its weight.

Having considered very carefully all the authorities, and finding that in all the other High Courts in India the practice is in conformity with the law as now declared by the Full Bench ruling in the Allahabad High Court, we are of opinion that the law laid down in Ajudhya Prasad v. Ram Lal 13 Ind. Cas. 284 : 34 A. 197 : 9 A.L.J. 124 : 13 Cri.L.J. 44 and the two subsequent oases in this Court reported as Ambica Tewary v. Emperor 34 Ind. 284 : 34 A. 197 : 9. A.L.J. 124 : 13 Cri.L.J. 208 and Sukhdeo Singh v. District Magistrate of Muzaffarpur 38. Ind. Cas. 754 : 2 P.L.J. 1 : 18 Cr.L.J. 370 can no longer be regarded as a sound or proper legal interpretation of Section 195 of the Code of Criminal Procedure.

Just one additional word. Clause (c) only deems a certain Court to be an authority to review a sanction granted or refused by a Small Cause Court. It in no way affects the antecedent jurisdiction of the Small Cause Court, nor does it enlarge the powers of the District Court, vie., the principal Court within whore local limits the Small Cause Court is situate. Section 185 merely provides that the District Court shall be deemed, viz., shall be considered or taken to be the authority to review and this is so irrespective of the fact that the District Court as the principal Court of original jurisdiction is not a Court in respect of which the Small Cause Court stands in any relationship in the exercise of its original jurisdiction as such.

Consequently the majority of this Court is of opinion that the application as presented on behalf of the petitioners to the High Court is not entertainable under the provisions of Section 195 of the Small Causes Courts Act, and that the proper Court to review the order of the Small Cause Court is the District Court of Chapra.

The law, however, has been in some doubt; and, therefore, we think it would be unfair to the petitioners to deprive them now of exercising the right to which we believe they are entitled, as a result of this decision. Accordingly we shall give the petitioners leave to withdraw the applications made to this Court with a view of presenting the same to the District Court for its consideration, as the authority indicated by law to review orders made in such oases as the present.

Sanctions granted or refused by a Small Cause Court may come before this Court in its revisional jurisdiction u/s 115 of the Code of Civil Procedure, or possibly u/s 107 of the Government of India Act, but not certainly under the provisions of Section 195 of the Code of Criminal Procedure, which is self-contained and marks out and defines the procedure applicable in its own terms,

Accordingly both these petitions are dismissed.

Das, J.

I concur in the judgment delivered by Mr. Justice Atkinson.

Jwala Prasad, J.

The question for determination is "whether an order granting sanction to prosecute by a Judge of a Small Cause Court is appealable under the provisions of section 195 of the Code of Criminal Procedure; and if an appeal is sustainable, to what Court does such an appeal lie,"

The first part of the question must be answered in the affirmative. Although, strictly speaking, there is no right of appeal against an order giving or refusing sanction u/s 195 of the Code of Criminal Procedure, any person aggrieved by such an order is entitled to apply for the setting aside of the same. Such a right was given by the former Code of Criminal Procedure of 1882, under which an application against an order passed by a Small Cause Court u/s 195 was entertainable by the Court of Session for the. Division within which the Small Cause Court was situate and to which it was declared to be subordinate by an express enactment in the section. The present Code has only omitted the provision of the former Code declaring a Court of Small Causes to be subordinate in the matter of giving or refusing Sanction to the Court of Session but has not taken away the substantive right of making an application to a superior authority. The right has been re-affirmed in clear and unambiguous terms in sub-section 6, which provides that any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate."

The word ''authority'' has been advisedly used in the sub section in order to include a ''public servant'' where sanction is given or refused under Clause (a) of Sub-section (1) in respect of offences mentioned therein, and a ''Court'' where sanction'' is given or refused under Clauses (b) and (c) of Sub-section (1). In either case the sanction given or refused may be revoked or granted by the authority to which the ''public servant'' or the ''Court'', as the case may be, is subordinate. A sanction given or refused by a Judge of a Small Cause Court comes under Clause (b) or (c) of Sub-section (1) and is liable to be revoked or granted by any authority to which the Court of Small Causes is subordinate and an application for the same purpose may be made to such an authority.

In order, therefore, to answer the second part of the reference, namely, to what Court an application against the order made by a Small Cause Court u/s 195 would lie, it is necessary to find out the authority to which a Court of Small Causes is subordinate.

Under the CPC (section 3) and the Small Causes Courts Act (section 28), a Court of Small Causes is subordinate both to the District Court and the High Court within the territorial limits of which the Small Cause Court is situate. By ''District Court'' is meant the principal Civil Court of original jurisdiction within the local limits of a district presided over by a District Judge [vide Section 2(4) of the CPC and Section 3(15) of the General Clauses Act].

Accordingly, Mr. Justice Piggott in the Full Bench case of Chidda Lal v. Bhajan Lal 42 Ind. Cas. 167 : 39 A. 657 : 15 A.L.J. 721 : 18 Cri.L.J. 935 (F.B.) came to the conclusion that the Judge of a Court of Small Causes" is an authority subordinate, within the meaning of sub-section 6, both to the High Court and to the District, Court...and that according to this sub section, therefore, a person against whom an order giving sanction has been passed by a Judge of Small Cause Court would be entitled to apply for revocation of the same either to the District Judge or to the High Court." With this view I entirely agree.

It is, however, contended that under Sub-section 7 a Small Cause Court should be deemed subordinate only to the District Court and that the right of making an application under sub-section 6 is, therefore, restricted to that Court only.

Sub-section 7 runs as follows: For the purposes of this section every Court shall be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie, that is to say:

(a) Where such 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;

(b) Where such appeals lie to 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 in connection with which the offence is alleged to have been committed;

(c) Where no appeal lies, such Court shall be deemed to be subordinate to the principal Court of original jurisdiction within the local limits of whose jurisdiction such first-mentioned Court is situate." It has to be seen whether and which of the aforesaid Clauses (a), (b) and (c) of Sub-section (7) would apply to a sanction given by a Court of Small Causes.

Broadly speaking, no appeal ordinarily lies from the decision of a Court of Small Causes and hence the main sub Section 7 with Clauses (a) and (6) has obviously no application. The doubt and difficult has hitherto arisen with respect to Clause (c) only, but the learned Government Advocate contends that Clause (a) would apply to a sanction given by a Subordinate Judge in the exercise of his jurisdiction as a Judge of a Court of Small Causes conferred upon him u/s 25 of the Civil Courts Act, XII of 1887.

It is argued that an appeal ordinarily lies from the decision of a Subordinate Judge exercising civil jurisdiction under the Civil Courts Act and hence even in respect of his orders passed in the exercise of his jurisdiction vested u/s 25 of the Civil Courts Act as a Judge of a Small Cause Court from which there is no appeal, it must be held for the purposes of subsection 7 of Section 195 of the Code of Criminal Procedure that an appeal ordinarily lies. Hence applying Section 21 of the Civil Courts Act under which an appeal from the decision of a Subordinate Judge ordinarily lies either to the District Judge or the High Court according to the value of the suit, it is said that the former Court, being "the Appellate Court of inferior jurisdiction," should be deemed to be the Court to which a Subordinate Judge exercising powers of a Small Cause Court is subordinate under Clause (a) of sub Section 7. The argument, no doubt, was very ingenious and at the first tight appeared to be plausible, but looking closely into the matter there does not appear to be much substance in it.

It is conceded that the clause has no application to the sanction granted by a Court of Small Causes established u/s 5 of the Provincial Small Causes Courts Act, IX of 1887. The distinction is sought to be made between the Court so constituted and that of a Subordinate. Judge vested with the powers of a Small Cause Court u/s 25 of the Civil Courts Act. This is a distinction without any difference.

The answer to the aforesaid contention is to be found in Sections 4 and 33 of the Provincial Small Causes Courts Act. These sections make it perfectly clear that a Court of a Subordinate. Judge, while trying suits cognizable by a Court of Small Causes under powers vested by Section 25 of the Civil Courts Act, is a Small Cause Court within the meaning of Section 4 of the said Act and exercises jurisdiction quite distinct from and independent of his jurisdiction as a Court of civil jurisdiction under the Civil Courts Act.

Sections 24, 25 and 27 of the Small Causes Courts Act will, therefore, apply to decrees or orders passed by a Court of Subordinate Judge while exercising powers under the Small Causes Courts Act and no appeal will ordinarily lie from the decree or order of that Court. Clause (a) of sub-section 7 has, therefore, no application to the present case and the contention of the learned Government Advocate must fail.

Clause (6) of sub-section 7 also has obviously no application.

It then remains to be seen whether sanction given by a Court of Small Causes comes under Clause (c) of the sub-section. If this clause is read as a distinct and separate sub-section, a Court of Small Causes might come under it inasmuch as no appeal lies from a Court of Small Causes. But if this, clause is read as a part of and as explanatory of sub-section 7, it would be difficult to apply this to a Court of Small Causes for sub-section 7 applies only to a Court from which appeals "ordinarily lie." In the case of Ajudhia Prasad v. Ram Lal 13 Ind. Cas. 284 : 34 A. 197 : 9 A.L.J. 124 : 13 Cri.L.J. 44 Chamier, J., although the matter did not directly arise in that case, held that the whole sub-section 7 and with it Clause (c) did not apply to a Court of Small Causes, inasmuch as that sub section is "confined to Courts against whose decisions or some of whose decisions appeals do He" as the opening words of the sub-section clearly indicate, and hence the words in Clause (c) "where no appeal lies" did not "refer to Courts against none of whose decisions an appeal lies but to refer to particular cases in which no appeal lies." Karamat Hussain, J., agreed in this view and in support of it quoted his own decision in Wazir Mohammad v. Hub Lal 2 Ind. Cas. 182 : 31 A. 313 : 6 A.L.J. 231. The point directly arose subsequently in this Court in the case of Ambica Tewary v. Emperor 34 Ind. 284 : 34 A. 197 : 9. A.L.J. 124 : 13 Cri.L.J. 208 and Sir Edward Chamier, then Chief Justice of this Court, adhered to the opinion expressed by him in the aforesaid Allahabad case and held that Clause (c) of sub-section 7 cannot be construed as if it were an independent sub section. This view was followed by Mr. Justice Roe in a later decision of this Court in Sukhdeo Singh v. District Magistrate of Muzaffarpur 38 Ind. Cas. 754 : 2 P.L.J. 1 : 18 Cri.L.J. 370, where the learned Judge held that the words ''that is to say'' "indicate not that a supplementary provision is to be found in Clause (c) but merely an explanation of the words to which an appeal ordinarily lies.'' "This view has since been acted upon by this Court in several oases without any discussion. Placed as Clause (c) is, namely, as a subordinate clause to sub Section 7 and introduced into it by the words ''that is to say'', it is difficult to disagree with the view taken in the aforesaid cases and to hold that Clause (c) does anything more than explaining and elucidating the opening words of the sub section, namely, for the purposes of this section every Court shall be deemed subordinate only to the Court to which appeals from the former Court ordinarily lie." The difficulty in applying the clause to a Court of Small Causes created by the words ''that is to say'' in sub-section 7 has been felt by almost all the learned Judges who had to construe it. I would now discuss the cases in which a contrary view was taken and Clause (c) was applied to orders made by a Small Cause Court. In the case of Nibaran Chandra v. Akshoy Kumar Banerjee 41. Ind. Cas. 311 : 21. C.W.N. 948 : 26 C.L.J. 138 : 18 Cri.L.J. 791 it was expressly said that the said words ''that is to say'' in sub Section 7, when read with Sub-clause (c), "entail a difficulty." But the sub clause was applied to the Court of Small Causes not on the ground of true construction of it bat on the ground of practice and of analogy drawn from the fact that the Presidency Small Cause Court is subordinate to the Original Side of the Calcutta High Court, and hence the Provincial Small Cause Courts should be deemed to be subordinate to the District Courts. The decision of the Madras High Court in In Re: Appavu Kavundan 36 Ind. Cas. 878 : 18 Cri.L.J. 46 is of no assistance for the purpose of construing the clause, inasmuch as it has not given any reason, or discussion for the view taken by it. This difficulty was got over by a Full Bench of the Allahabad High Court in the case of Chidda Lal v. Bhajan Lal 42 Ind. Cas. 167 : 39 A. 657 : 15 A.L.J. 721 : 18 Cri.L.J. 935 (F.B.) by trying to omit the words ''that is to say'' from sub-section 7 altogether while construing Clause (c), or by putting a loose interpretation upon the words in order to give effect to an intention of the Legislature, namely, to restrict the right of application under sub Section 6 in respect of orders made by a Small Cause Court to one Court instead of to two Courts, as would have been the case if Clause (c) had not applied.

In order to determine whether this was the "Legislative intent", let us look to the law on the point prior to the present Code and the object with which Clauses (a), (b) and (c) were inserted in the present Code. Section 195 of the Code of 1882 simply provided that the Court giving or refusing sanction should be deemed to be subordinate only to the Court to which appeals ordinarily lie, and there were no provisions similar to those in Clauses (a), (b) and (c) of the present Code. This led to conflicting rulings and Clauses (a), and (c) were added in the present Code with a view to getting rid of the difficulty. Clause (a) provides for the case of a Subordinate Court against whose decisions appeals lie to two different Courts of different grades. For instance, u/s 21 of the Civil Courts Act, an appeal lies to the District Court and the High Court according to the value of the suit decided by a Subordinate Judge, Clause (b) provides for the case of a subordinate Court against whose decisions appeals lie to two different kinds of Courts; for instance, Civil and Revenue Courts in certain rent cases. Clause (c) provides for oases where appeals ordinarily lie from the decisions of a Court but no appeals lie in particular cases. The object of adding clauses in the present Code to the provision in sub Section 7 was only to explain and elucidate sub Section 7 and to meet the exigencies created by the conflicting authorities under the old Code. Neither in the old nor in the present Code, a Court of Small Causes some under the main provision in sub Section 7.

Again the Legislature does not pretend to restrict the right of making an application under sub-section 6 to one public servant as a superior authority, where sanction is given by a public servant under Sub-section (1) (a) of Section 195.

Take the case of a Sub-Inspector of Police or an Excise Sub Inspector, who is subordinate to more than one officer, where an order giving or refusing sanction by him may be set aside by any one of the public servants to whom he may be subordinate. There are many instances of a public servant being subordinate to more than one authority. Why should we then assume an intention of restricting the right to make an application to one Court only as a superior ''authority'' referred to in the said sub Section 6, unless such an intention is clearly expressed by the Legislature? This intention of course is clear in the case of a Court giving or refusing sanction from which an appeal ordinarily lies, but in the particular cases no appeal lies. The intention is not clear in the case of a Court from which no appeal at all lies, as in the case of a Small Cause Court,

There is, therefore, no justification for reading Clause (c) as a separate sub-section, or to interpret it otherwise than its plain language, its position and the grammatical construction indicate, on the ground of carrying out effectually the intention of the legislature. The intention of the Legislature to include a Small Cause Court within Clause (c) is not clearly established.

This clause was, however, applied to a Small Cause Court in the case of Nibaran Chaidra v. Akshoy Kumar Banerjee 41 Ind. Cas. 311 : 21. C.W.N. 948 : 26 C.L.J. 138 : 18 Cri.L.J. 791 on the analogy that as a Presidency'' Small Cause Court is subordinate to the High Court within the limits of whose jurisdiction it is situate, it would appear to follow that a Provincial Small Cause Court is similarly subordinate for the purposes of Section 195 to the Court of the District Judge. This analogy has been quoted with approval in the Allahabad Full Bench case of Chidda Lai v. Bhajan Lal 42 Ind. Cas. 167 : 39 A. 657 : 15 A.L.J. 721 : 18 Cri.L.J. 935 (F.B.). But the analogy does not hold good, inasmuch as u/s 6 of the Presidency Small Causes Courts Act the High Courts of Judicature at Fort William in Bengal, Madras and Bombay have been expressly declared to be the only Courts to which the Presidency Small Causes Courts are subordinate, whereas the Small Causes Courts Act and the CPC have declared a Small Cause Court to be subordinate both to the District Court and the High Court.

Again, the oases already adverted to have referred to the prevailing practice, thereby the District Judge exercises jurisdiction in respect of sanction given or refused by a Court of Small Causes. This practice necessarily must have grown after 1898 when the new Code came into operation, for prior to that the Sessions Judge was declared by an express provision in the Code of 1882 to be the authority to which a Court of Small Causes was to be deemed subordinate for the purposes of Section 195. There are, therefore, not many reported oases relating to the practice referred to above. On the other hand, within these few years the views taken in the different High Courts have been different. It is more than doubtful if there has been an uniform interpretation of the Statute and that that interpretation has been adhered to without interruption, or that the practice has been so general and of such a long standing that it has taken the place of a settled law in the province : vide Maxwell on the Interpretation of Statutes. On the other hand, the decision in the case of Ambica Tewary v. Sing Emperor 34 Ind. 284 : 34 A. 197 : 9. A.L.J. 124 : 13 Cri.L.J. 208, passed soon after this Court was created, has been followed by this Court in several reported and unreported cases. I would, therefore, not rely upon practice for the determination of the question before us as to which Court should have power u/s 195 to set aside an order passed by a Small Cause Court. I, therefore, hold that on none of the grounds of "Legislative intent," "analogy" or "practice", sub Section 7 or any of its sub-clauses (a), (b) and (c) applies to Courts of Small Causes.

In the view that I have taken it is unnecessary to consider what would be "the principal Court of original jurisdiction" referred to in Clause (c) as the authority to which a Small Cause. Court should be deemed subordinate in case the said clause did apply.

I would only observe that the omission on the part of the Legislature to define "the principal Court of original jurisdiction" has created hopeless difficulties and conflict of opinions. It is said that the said words must be construed to be the principal Civil, Criminal and Revenue Courts of original jurisdiction according as the order passed u/s 195 be by a Civil, Criminal or Revenue Court respectively, and in support of this Sub-section (2) of Section 195 is referred to. In that sub-section the Legislature no doubt has declared that "in Clauses (6) and (c) of Sub-section (1), the term ''Court'' means a Civil, Revenue or Criminal Court", but that definition is expressly restricted'' to the Clauses (b) and (c) of Sub-section (1) and has not been declared to apply to the rest of the section including Sub-section (7).

Again, the difficulty is not solved by reading the words "civil, criminal or revenue" in the said clause, for there is no definition in the General Clauses Act or anywhere else of a principal Court of original, criminal or revenue jurisdiction, though "the principal Civil Court of original jurisdiction" has been defined by Clause 15 of Section 3 of the General Clauses Act to mean the Court of a District Judge. Much is left to surmise and guess in order to find out what Court is meant by the Legislature in using the said expression in Clause (c).

Mr. Yunus argues that with regard to suits cognizable by a Small Cause Court, the Small Cause Court itself is a principal Court of original jurisdiction and not the District Court. [This was the view of Roe, J., in the case of Sukhdeo Singh v. District Magistrate of Muzaffarpur 38 Ind Cas 754 : 2 P.L.J. 1 : 18 Cri.L.J. 370]. The fallacy of the argument is that if the Legislature intended to apply this clause to a Court of Small Causes, it must have intended to convey by the words "the principal Court of original jurisdiction" some Court other than the Small Cause Court itself, for the simple reason that the clause would be without any meaning and would frustrate the object in pointing to a superior authority which would have power to set aside the sanction given or refused by a Small Cause Court.

It is next argued that the principal Court of original jurisdiction "with regard to Small Cause Court oases must be held to be the High Court. But the High Court of Patna has no ordinary original civil jurisdiction" to receive, try and determine any suit, "Under Section 9 of the Letters Patent constituting this Court, it has only extraordinary original civil jurisdiction" to remove, and to try and determine a suit" within the jurisdiction of any Court subordinate to its superintendence. The distinction is noteworthy. The power to receive a suit constitutes original jurisdiction and power to remove a suit constitutes extraordinary jurisdiction. This Court has no original jurisdiction to receive and entertain a Small Cause Court suit.

However, had Clause (c) of sub-section 7 applied, it would have been possible to hold that the Legislature intended that a Small Cause Court in respect of orders made by it u/s 195 should be deemed subordinate to the District Court as being the principal Court of original civil jurisdiction within the meaning of Section 2(4) of the CPC and Section 3(15) of the General Clauses Act notwithstanding the difficulties created by the inartistic drafting of the section. But I have already held that according to the true construction, Sub-section (7), with all its sub-clauses (a) (6) and (c), does not apply to Courts of Small Causes. We have, therefore, to find out the superior authority referred to in Sub-section (6) uncontrolled in any way by Sub-section (7). It has already been shown that such an authority competent to deal with sanction given or refused by a Court of Small Causes will be both the District Court and the High Court within the meaning of that sub-section, I, therefore, do not accept the view taken by this Court that the application could not be made to the District Court, or the view taken by the other High Courts that the application could not be made to the High Court. Had the Legislature intended to restrict the jurisdiction of entertaining applications u/s 195, Clause (6), to one Court only, the intention should have been expressed clearly and they failed to carry out their intention, if any, by the language employed in Section 195, to which only we should refer for the purpose of interpreting the Statute and its intention, instead of roaming over the previous law and the authorities thereunder: vide the dictum of Lord Herschell in Bank of England v. Vagliano (1891) A.C. 107 at p. 145 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 65 J.P. 676. The drafting of Section 195 has been criticised by several Judges and it may be of some use to note incidentally that in the proposed bill for the amendment of the Code of Criminal Procedure I do not find any suggestion to define the ''subordination of Courts'' for the purpose of Section 195.

As the two Courts, the District Court and the High Court, have concurrent jurisdiction over the orders passed by a Court of Small Causes, it will be open to the High Court to refuse to entertain an application under Sub-section (6) of Section 195, unless the party aggrieved had in the first instance moved the District Court. I would, therefore, hold that as a matter of procedure it should be ruled that in such a case an application should in the first instance be made to the District Court. This will be reasonable, inasmuch as it will save trouble and expense to the party concerned in coming to the High Court instead of having his redress in the District Court. And at the same time a second opportunity would perhaps be afforded to the aggrieved party to comes to the High. Court either under Sub-section (6) of Section 195 or under the powers vested in the High Court by Section 115 of the Code of Civil Procedure, or Section 107 of the Government of India Act.

I would, therefore, answer the second part of the reference as follows:

That under Sub-section (6) of Section 195 an application can be made both to the District Court and to the High Court for the purpose of revoking or granting a sanction given or refused by a Court of Small Causes. But as a matter of procedure the High Court should not entertain an application except under special circumstances, unless such an application was first presented to the District Court.