Mamidi Harihararayulu and Others vs Annavarapu Bangarayya

Ramaswami, J.—This civil miscellaneous appeal has been placed on the list, subject to the question of the maintainability of the same being

decided.

The facts are: Annavarapu Bangarayya, the decree-holder in O. S. No. 115 of 1837, on the file of the District Munsif''s Court, Masulipatam,

filed an application dated 21-2-1951 under Sections 476 and 195, Criminal P.C. in the Court of the District Judge of Krishna praying that the

Court may be pleased to sanction and launch prosecution proceedings against the respondents Mamidi Hari Hararayulu, Dora Krishnarao and

Kosaraju Venkateswara Rao, who had obstructed the amin of the District Court while he was discharging his duties in effecting attachment of

certain movables of the judgment-debtor Mamidi Hari Hararayulu in E. P. No. 316 of 1949 in O. S. No. 115 of 1937. The District Judge had

before him the report of the amin and the connected papers. Notice was given to the respondents and the learned Judge heard arguments of the

vakils for the petitioner and the arguments of the three advocates for the three respondents. Then he passed the following order:

In view of the amin''s report dated 14-12-1950 which discloses offences under Sections 183 and 186, Penal Code among others, the Central

Nazir of this Court is directed to make a complaint against the respondents in respect of the said offences before a Magistrate. I make no order as

to costs.

This order was passed on 1-11-1951.

Thereupon the learned advocate for the defeated respondents in the lower Court purported to file a proceeding, which has originally been typed

as a memorandum of criminal appeal and which has been subsequently corrected into a civil miscellaneous appeal falling u/s 476-B, Criminal P. C.

The High Court office returned the memorandum on the following ground:

Section 476 applies only to offences u/s 195 (b). Sections 183 and 186 fall u/s 195 (a). Hence the proceedings in the lower Court could not have

been taken u/s 476. It may be stated how C. M. A. lies u/s 476-B.

Thereupon the learned advocate re-presented it with the following endorsement:

The C. M. A. is filed as civil miscellaneous appeal under Rule 37, Criminal Rules of Practice, and Section 476-B, Criminal P. C., which applies to

orders passed by the lower Court u/s 476, Criminal P. C. and Section 195, Criminal P. C.

There can be no doubt that this endorsement of the learned advocate is based on a profound misreading and, if I may say without meaning any

offence, non-reading of Sections 476 and 476-B, Criminal P. C. and Rule 37, Criminal Rules of Practice.

Section 476-B, Criminal P. C. gives a right of appeal against the orders passed under Sections 476 and 476-A directing the filing of a complaint

or refusing to make a complaint: see -- AIR 1934 344 (Oudh) ; -- Y. Mahabaleswarappa Vs. M. Gopalaswami Mudaliar, . The right of appeal is

restricted to complaints in respect of offences mentioned in Clauses (b) and (c) of Section 195 (1) of the Code and no appeal lies in respect of

offences mentioned in Clause (a) of that sub-section : see -- ''Maruda Pillai v. Narayanaswami Pillai'', AIR 1939 Mad 336 (C); -- Bajrang

Marwari and Others Vs. Durga Prasad Sao, ; -- Brijendra Nath Vs. Emperor, and -- ''P. J. Money v. Emperor'', AIR 1928 Rang 296 (F). Before

the amendment of 1923 it was held that where a public servant acted judicially as a Court and passed an order sanctioning prosecution for an

offence referred to in Clause (a) of Section 195, he must, for the purpose of appeal be taken to have acted as a Court, the forum of appeal being

governed by the provisions of Sub-section (7), (now Sub-section (3) ), but that if he should be taken to have acted not as a Court, but in his

executive capacity, the forum of appeal was not governed by Sub-section (7) : see -- ''Nataraja Pillai v. Rangaswami Pillai'', AIR 1923 Mad 473

(G). Since the amendment of the Code in 1923, an appeal lies only against a complaint preferred by a Court u/s 476, in respect of offences falling

within Clause (b) and Clause (c) of Section 195; vide Ram Prasad Vs. King-Emperor, . Where a public servant, whether he is a Court or not, files

a complaint in respect of an offence falling under Clause (a) of Section 195 there is no appeal: vide Brijendra Nath Vs. Emperor, . But Sub-section

(5) newly added enables the authority to which such public servant is subordinate, to withdraw the complaint.

Thus, it has been held that a Sub-Divisional Magistrate acting under Clause (a) of Sub-section (1) is subordinate to the District Magistrate, the

authority to which he is subordinate u/s 17, Criminal P. C., and an application for withdrawal of complaint should be made to him and not to the

Court of Session to which appeals ordinarily lie from his decisions as a Court or to the High Court; see -- Maini Missir Vs. Emperor, ; -- Nagu

Servai Vs. Emperor, and -- Emperor Vs. Ramjanam Singh, . It has further been held that the High Court as being the authority to which a district

Judge or an Additional Sessions Judge is subordinate within the meaning of this subsection, is competent to withdraw a complaint filed by the latter

as a public servant; vide Brijendra Nath Vs. Emperor, and -- ''Chedilal v. Emperor'', AIR 1924 Oudh 402 (L). In other words, there is no appeal

in this case but there can only be a resort to Sub-section (5) to Section 195 newly added and this can only be by way of revision. Thus, where a

Subordinate Judge declined to make a complaint under Sub-section (1) Clause (a) of Section 195 in respect of an offence u/s 186, Penal Code

alleged to have been committed against the peon of the Court while executing a process of the Court, the High Court interfered in revision and set

aside the order of the Subordinate Judge directing him to dispose of the matter after taking into consideration the observations of the High Court;

vide -- Rajshahi Banking and Trading Corporation Ltd. Vs. Surendra Nath Mitra, .

It is unnecessary to consider here whether a revision lies against the withdrawal of a complaint under Sub-section (5) and the High Courts of

Allahabad and Patna and the Judicial Commissioner''s Court of Peshawar have held that a withdrawal of a complaint under Sub-section (5) is an

administrative or executive act and hence not open to revision by the High Court. On the other hand, the High Court of Madras has held in a case

where a District Magistrate summarily rejected an application under this sub-section for the withdrawal of a complaint preferred by the joint

Magistrate without giving notice or hearing the applicant, that the application was by way of a judicial revision, and the order was open to revision

u/s 439, Criminal P. C.: vide Nagu Servai Vs. Emperor, . It has also been held by the same High Court that where a joint Magistrate has passed

an order withdrawing a complaint, the order of the District Magistrate in revision setting aside that order is passed as a Court and is open to

revision by the High Court: -- P.S. Vijayaranga Reddiar and Others Vs. S.V. Muthuswami Reddiar, . The order of the joint Magistrate directing

the withdrawal of the complaint is not, however, an order of discharge and consequently it will not be open to the District Magistrate u/s 436 to

himself set it aside (ibid). Therefore, this proceeding can be filed under the newly added Sub-section (5) only as a revision and not as a civil

miscellaneous appeal.

The reference to Rule 37, Criminal Rules of Practice is meaningless in this connection. That rule merely states:

Every application made to a Criminal Court under the provisions of Sections 476, 476-A or 485, Criminal P. C., and every appeal filed against

an order made, under the above sections, or filed in a Court of Session against an order of a Court of Small Causes in the mofussil u/s 486,

Criminal P. C. shall be registered as a criminal miscellaneous petition and a criminal appeal respectively. Such applications and appeals when filed

in a civil Court will be registered as civil miscellaneous petitions and civil miscellaneous appeals.

This rule applies to revision petitions also.

That this rule which prescribes a different procedure in case of appeals filed u/s 476-B, Criminal P. C. is not in consonance with procedure has

been indicated in -- ''Raja Gupta In re'', AIR 1839 Mad 472 (O). See also -- Koduru Janardana Rao Vs. Prattipaty Lakshmi Narasamma, .

Therefore, even assuming that this is a revision petition, the final point to be decided is whether stay should be granted and for doing so there is

not the slightest warrant because when our interference is by way of revision, the limitations incidental to interference in revisions automatically

apply. The facts of this case show that when the amin of the civil Court was executing the warrant of attachment in execution of a decree, he had

been resisted and assaulted by the judgment-debtors and therefore there is a good ''prima facie'' case for making the complaint. The procedure

followed is correct, viz., the District Judge has been moved in his capacity as a public servant to whom the amin is subordinate to make a

complaint. The learned District Judge has given an opportunity to both sides and examined the matter and arrived at his conclusion. Therefore,

there are no grounds to hold that a case has been made out for granting stay.

The petition for stay is dismissed and the petition for vacating the order of stay is allowed and, in both cases, without costs because it has been

held by Lakshmana Rao J. that in application of quasi-criminal character costs should not be allowed.