Ramchandra Padhi vs Emperor

Macpherson, J.—This is an appeal by Ramchandra Padhi u/s 476-B, Criminal P.C., in respect of the complaint of an offence u/s 199, I.P.C. made by the Subordinate Judge of Sambalpur againt the appellant in respect of an affidavit of appellant on 27th February 1928, in which he swore that service of summons on Labanidhar Hota had been made at Sankhala in the manner stated in the report of the process-server Radhakanta Gartia. The process-server had reported that he had tendered the summons to Labanidar Hota personally at Sankhala but he had refused to accept it and the summons had accordingly been affixed to the door of his house. Labanidhar''s case is that he was not at Sankhala at that period, does not yet live there and was never offered the summons there or elsewhere, and he accordingly applied to the Munsif for the prosecution of the peon and the appellant in respect of the report and affidavit respectively.

The Munsif dismissed the application but on appeal the learned Subordinate Judge found that the process had not been tendered to Labanidhar Hota at all either at Sankhala or elsewhere but that the peon when giving delivery of possession on another, process at Salesingha, a village two miles from Sankhala, had also taken the signature of the witnesses to the delivery of possession on the summons addressed to Labanidhar and had subsequently written up at Sambalpur his report of service of the summons ante dating it and falsely stating therein that he had tendered the process to Labanidhar Hota at Sankhala.

The appellant knowing that to be false, filed an affidavit in support of it. The learned Subordinate Judge presented a petition of complaint u/s 199 against both the peon and the appellant. The peon has not appealed.

It has been decided in Ranjit Narain Singh and Others Vs. Rambahadur Singh and Others, that an appeal lies u/s 476-B from an order of the appellate Court making a complaint after a Subordinate Court has refused to do so. That view is not accepted by, among others, the High Courts of Calcutta, Lahore and Madras in Moideen Rowthen v. Miyyassa Pulavar AIR 1928 Mad. 506 the Madras High Court has considered and dissented from the decision cited and in our opinion it may on a proper case arising, require re-examination by the Patna High Court. So far as the present case is concerned, it will be found that it does not matter whether an appeal lies or only an application in revision since the only point pressed before us is that the learned Subordinate Judge had no jurisdiction to make a complaint.

In support of that argument the learned advocate contends that the learned Subordiuate Judge is not the Court to whom the Munsif is Subordinate within the meaning of Section 195(3), Criminal P.C., inasmuch as appeals do not ordinarily lie to him from the appealable decrees of the Court of the Munsif and accordingly he is not "the superior Court" within the meaning of Section 476-B. The point was dealt with in the case of Sudarsan Behara Vs. King-Emperor, . in which it was pointed out in a precisely similar case that the learned Subordinate Judge of Sambalpur had rightly held that under the provisions of Section 195 read with Section 21(2) and (4), Bengal Agra and Assam Civil Courts Act (12 of 1887) the appeal lay to him. u/s 21(2), Act 12 of 1887 an appeal from a decree or order ''of a Munsif shall lie to the District Court but under Sub-section 4 the High Court may with the previous sanction of the Local Government direct by notification in the official Gazette, the 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 appeal shall thereupon be preferred accordingly.

By a notification of 4th March 1907, published, in Part 1, p. 413 of the Calcutta Gazette of 1907, the High Court with the previous sanction of the Local Government directed that appeals lying to the District Judge of Manbhum-Sambalpur from the district of Sambalpur should be preferred to the Court of the Subordinate Judge of Sambalpur. As under that notification all appeals lie to that Court it is clearly the Court to which appeals ordinarily lie within the meaning of Section 195(8), particularly in view of the proviso, and, therefore, the superior Court which is empowered u/s 476-B to make the complaint which the subordinate Court of the Munsif might have made.

The contention being unfounded and no other point being urged the appeal fails and is dismissed. We make no order as to costs.

Kulwant Sahay, J.

I agree.