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Emperor Vs. Bhatu Sadu Mali - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 118 of 1937
Judge
Reported inAIR1938Bom225; (1938)40BOMLR297
AppellantEmperor
RespondentBhatu Sadu Mali
Excerpt:
.....of 1895), secs. 439, 476, 476b-complaint by civil court-revision-high court-criminal jurisdiction-civil procedure code. (act v of 1908), section 115.;an order made by a civil court under section 476b of the criminal procedure code, 1898, is an order made by a criminal court, or by a court exercising criminal powers ; and is not an order made by a civil court. therefore an application in revision to the high court from such an order should be heard and decided in accordance with the provisions of section 439 of the criminal procedure code, and not in accordance with the provisions of section 115 of the civil procedure code, 1908.;dhanpat rai v. balak ram (1931) i.l.r. 13 lah. 342, f.b. followed.;emperor v. govind hari (1934) 37 bom. l. r. 106 approved.;surendranath maiti v. sushilkumar..........by a civil court so that the high court's revisional powers are governed by section 115 of the civil procedure code, or is an order made by a criminal court, or a court exercising criminal powers, and power to revise such order arises under section 439 of the criminal procedure code.3. the question has given rise to a difference of opinion amongst the various high courts, section 476 of the criminal procedure code has to be read in connection with section 195. that section provides, so far as material, that no court shall take cognizance of any offence punishable under certain sections of the indian penal code, which include the sections relating to forgery of documents, when such offences are alleged to have been committed in, or in relation to, any proceedings in any court, except.....
Judgment:

John Beaumont, Kt., C.J.

1. The facts giving rise to this reference to a full bench are these. In a civil suit the plaintiff obtained a decree against the defendant in 1933, and in 1936 there were darkhast proceedings to execute the decree. In those proceedings the defendant produced a receipt showing a larger amount as having been paid than was in fact paid. It is not disputed that the receipt was a forged document. The learned Subordinate Judge who tried the suit recorded a rinding under Section 476 of the Criminal Procedure Code that it was in the interest of justice that the matter should be enquired into, and accordingly lodged a complaint for forgery against the defendant. The defendant preferred an appeal against the direction for lodging a complaint to the District and Sessions Court, and the District and Sessions Judge referred the case to the Assistant Judge. The Assistant Judge made an order directing that the complaint should not be proceeded with on the somewhat singular ground that the defendant had admitted the forgery. The District and Sessions Judge seems to have sent for the record, and he disagreed with the view of the Assistant Judge that a prosecution ought not to be launched because the accused had admitted the offence after he was found out, and accordingly he submitted the papers to this Court recommending that under our revisional powers we should restore the complaint of the Subordinate Judge.

2. The principal question which has been referred to the full bench is the first question, namely,

Whether applications in revision from an order under Section 476B by a civil Court to the High Court should be heard and decided in accordance with the provisions of Section 439 of the Criminal Procedure Code?

The question really is whether the order made by the Assistant Judge under Section 476B was an order made by a civil Court so that the High Court's revisional powers are governed by Section 115 of the Civil Procedure Code, or is an order made by a criminal Court, or a Court exercising criminal powers, and power to revise such order arises under Section 439 of the Criminal Procedure Code.

3. The question has given rise to a difference of opinion amongst the various High Courts, Section 476 of the Criminal Procedure Code has to be read in connection with Section 195. That section provides, so far as material, that no Court shall take cognizance of any offence punishable under certain sections of the Indian Penal Code, which include the sections relating to forgery of documents, when such offences are alleged to have been committed in, or in relation to, any proceedings in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate. Then Section 476 deals with the method in which a complaint is to be lodged in cases falling under Section 195. Section 476, so far as material, provides that

When any civil, revenue or criminal Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (2), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing.

The learned Subordinate Judge acted under that section and made a complaint in writing. It seems clear that if that section stood alone there could be no appeal from the directions of the Subordinate Judge because no order is made ; the Judge merely records a finding and lodges a complaint, which is an administrative act. However a right of appeal is expressly given by Section 476B. That section provides that-

any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under Section 376 or Section 376A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate Court might have made under Section 376.

So that the appellate Court is the Court to which the Court making the complaint is subordinate within the meaning of Section 195 (3). That section 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 decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such civil Court is situate.' The expression ' the Court to which appeals ordinarily lie' must I think mean the Court to which an appeal would lie in an ordinary case from the civil, revenue or criminal Court in question. Clearly it cannot mean the Court to which an appeal ordinarily lies under Section 476 because no appeal does lie under that section except under Section 476B. The view which has prevailed in the High Courts of Calcutta, Madras and Allahabad is that the character of the Court which hears the appeal under Section 476B is governed by the character of the Court which lodges the complaint, that is to say, if the complaint is lodged as here by a civil Court, the Court hearing the appeal must be regarded as a civil Court. That is not expressly provided by Section 476B. The reference to Section 195 (3) only determines the forum to which the appeal lies, and does not in terms determine the character of such Court. The High Court of Calcutta in Surendranatk Maiti v. Sushilkumar Chakrabarti I.L.R. (1931) Cal. 68 and the High Court of Madras in Janardana Rao v. Lakshmi Narasamma I.L.R. (1933) Mad. 77. appear to hold that although the Court which hears the appeal under Section 476B is a civil Court nevertheless its procedure in dealing with the appeal is governed by the Criminal Procedure Code, and both those Courts have held that the powers conferred on a criminal Court of appeal by Section 423 of the Criminal Procedure Code can be exercised in an appeal under Section 476B. With all respect to those Courts, that seems to me to be somewhat illogical. If the Court hearing the appeal is a civil Court it seems to me that its procedure must be governed by the Civil Procedure Code, and if the Court holds that the procedure is governed by the Criminal Procedure Code, that must be on the basis that the Court is acting as a criminal Court, and if it is acting as a criminal Court, I do not see. why the powers of revision should not be those conferred by Section 439 of the Criminal Procedure Code, and not those conferred by Section 115 of the Civil Procedure Code. There is no provision in Section 476B, such as we find in Section 486 of the Criminal Procedure Code, enacting that the provisions of Ch. XX'XI are to be acted upon. Chapter XXXI deals with appellate powers. If one had got such a provision as that, it would be possible to hold that the powers conferred upon an appellate Court by Section 31 of the Criminal Procedure Code apply, but the powers in revision conferred by Ch. XXXII do not apply. But in the absence of any such provision I fail to see why the provisions of one chapter more than the other should apply to a case arising under Section 476B, if the Court hearing the appeal is a civil Court. On the other hand the High Court of Lahore in Dhanpat Red v. Balak Ram I.L.R. (1931) Lah. 342. has held that an order made under Section 476B can be revised by the High Court under Section 439, and in so holding the Court followed a practice which had long prevailed in that Court. A similar practice has long prevailed in this Court. The Government Pleader tells us that he has known of many cases in which revision orders have been made under Section 439 in respect of orders passed under Section 476B, and in my own experience such orders have been made in recent years. The case of Emperor v. Govind Hari (1934) 37 Bom. L. R. 106 is one instance. In that case the Court held that no appeal lay against an order made under Section 476B directing a complaint to be filed, but having so held the report shows that the Court proceeded to set aside the order complained against in revision. But the question of jurisdiction was not argued or considered in that case, and there seems to be no reported case in this-High Court since the enactment of Section 476B in the year 1923 in, which the question of jurisdiction has been considered. In my opinion, however, the practice which has prevailed in this Court is right. The order which the appellate Court is called upon to make under Section 476B either quashing a complaint or directing a complaint to be filed is clearly an order of a criminal nature, and there is nothing in the section which enacts that the Court which passes that order is not a criminal Court. Mr. Dixit for the applicant contends that a Court acting under Section 476B is not a criminal Court as defined by Section 6 of the Criminal Procedure Code, and in certain cases that might be so, for instance, where the appellate Court is the Court of the First Class Subordinate Judge exercising appellate powers. But, on the other hand, I am not prepared to say that Section 6 is exhaustive. It is, however, in my view not essential to determine whether the Court which passes an order under Section 476B is technically a criminal Court or not. It is certainly a Court which is exercising jurisdiction in a criminal matter, and in my opinion orders passed by it can be revised by the High Court under Section 439. I agree with the view expressed in many cases, that Section 439 must be read in connection with the sections which precede it. Section 439 enables the High Court to interfere in revision in the case of any proceedings, the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. The expression ' or other proceedings' must clearly be limited by the context. Nobody would suggest that under Section 439 a criminal Court could revise the orders of a civil Court in a civil matter. But it may well be that Section 439 goes rather further than Section 435 which refers to calling for the record of any proceeding before any inferior criminal Court. Whether or not in this case the order was technically made by an inferior criminal Court, I am clearly of opinion that it was an order made by an inferior Court exercising, under Section 476B, jurisdiction in a criminal matter. In my opinion not only does the procedure relating to criminal appeals apply to a proceeding under Section 476B, but any order made under that section can be revised by the High Court under Section 439, and the provisions of Section 115 of the Civil Procedure Code do not apply to such a case. I would, therefore, answer the first question submitted to us by saying that applications in revision from an order under Section 476B by any Court to the High Court may be heard and decided in accordance with the provisions of Section 439 of the Criminal Procedure Code.

4. Questions (2) and (3) are in the following terms :-

(2) Whether upon an order of an Assistant Judge in appeal under Section 476B of the Criminal Procedure Code, directing that a prosecution filed against a party in a civil proceeding by a Subordinate Judge should be withdrawn, the Sessions Judge has jurisdiction under Section 435 of the Criminal Procedure Code to call for the record and proceedings of the case from the Court of the Assistant Judge? And

(3) Whether in view of the provisions of Section 438 of the Criminal Procedure Code the Sessions Judge has jurisdiction, apart from Section 435, Criminal Procedure Code, to make a reference submitting the record and proceedings of the Assistant Judge in such a case to the High Court for orders under Section 439 of the Criminal Procedure Code?

5. They can I think be dealt with together. I certainly doubt whether the Sessions Judge in this particular case had any power under Section 435 to call for the record and proceedings of the case before the Assistant Judge, because the Assistant Judge was exercising a jurisdiction concurrent with that of the Sessions Judge in a case transferred to him, under Section 17 of the Bombay Civil Courts Act, 1869. It is clear, however, that the Sessions Judge if he thinks that injustice has been committed by an order made by his Assistant Judge can refer the matter to the High Court, just as he could refer the matter to the High Court if he came to the conclusion that he had himself made a mistake which ought to be corrected by the High Court in revision. Once the matter has been brought to the attention of the High Court, the High Court can in my opinion act in revision under Section 439 whatever the method adopted in bringing the matter, to its attention. It is not necessary I think to record a formal answer to the questions.

6. Question (4) is in these terms :-

Whether the High Court upon such reference in the exercise of its powers under Section 439 of the Criminal Procedure Code can either by itself launch a complaint against the party concerned or direct the lower Court to do so ?

I do not think it necessary to answer that question. If this Court comes to the conclusion in revision that the order of the Assistant Judge was wrong, the order can be set aside and the complaint filed by the Subordinate Judge allowed to proceed. That is a matter to be considered on the merits by the criminal bench.

Broomfield, J.

1. I think the common sense view is that proceedings relating to prosecutions for criminal offences alleged to have been committed in (Court are proceedings of a criminal nature, whether the alleged offence took place in a criminal, civil or revenue Court. It is for that reason presumably that the provisions of Ch. XXXV have been made applicable to all Courts. Prima facie it seems reasonable that the procedure as to revision should be the same as in all other criminal proceedings.

2. The difficulties which have given rise to this reference are mainly due to the fact that the provisions of the Code dealing with revision, i.e. Ch. XXXII, do not in terms deal with revision of criminal proceedings but with the revision of proceedings of inferior criminal Courts, A Subordinate Judge who decides to make a complaint or not to make a complaint under Section 476 is engaged in a criminal proceeding. But he does not for that reason become a criminal Court. A District or Assistant Judge who hears an appeal in such a case is engaged in a criminal proceeding, but is not a criminal Court, that is to say, if the words are used in their strict or ordinary meaning.

3. One argument for holding that Section 439 of the Criminal Procedure Code applies in these cases is that that section gives the High Court power to deal in revision with any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge. It is true that this section, when it speaks of proceedings which have been called for or which have been reported for orders, is obviously referring back to Sections 435 and 438, and in that respect it appears that it is intended to apply to proceedings of criminal Courts only. But, although Section 439 must be read' in connection with Section 435, I ami not prepared to say that the words ' any proceeding ' in Section 439 are not wide enough to include at any rate any proceeding under the Criminal Procedure Code. If so, they would include proceedings under Ch. XXXV even in the case of civil and revenue Courts.

4. Another alternative is to say that in Ch. XXXII the words ' inferior criminal Courts' are used rather loosely in a sense wide enough to include proceedings of civil and revenue Courts when engaged in criminal matters. This again is not a view which it is altogether easy to accept, but in my opinion it is not impossible. As the learned Chief Justice has pointed out, the way in which the other High Courts have dealt with the matter is somewhat illogical. They agree that the criminal procedure is to be applied in the case of appeals. But if so, it is difficult to see why it should not be applied in the matter of revision also.

5. There is a rather curious point about the provisions relating to contempt of Court which are contained in this same Ch. XXXV. These provisions apply to civil and revenue as well as to criminal Courts, and there is a provision for appeals in Section 486 just in the same way as an appeal is provided in Section 476B. In these provisions the subordination of Courts is the same, that is to say, an appeal from a Subordinate Judge lies to the District Judge and so on. It seems obvious, therefore, that it was not the intention of the legislature to make civil and revenue Courts subordinate to the criminal Courts in such matters. But in Section 486 it is expressly provided that the procedure for hearing appeals and the powers of the appellate Court in dealing with the appeals are to be in accordance with the provisions of Ch. XXXI of the Criminal Procedure Code.

6. The convenience of the practice of dealing with these matters under Section 439, which practice I think is as well established here as in Lahore, seems to me to be obvious. As far as I can see there is nothing in the Code which can be said to prohibit the application of that section. I agree, therefore, with the learned Chief Justice and with the answers which he proposes to the questions referred.

Wassoodew, J.

7. I agree that the answers to the questions referred should be as stated in the judgment of my Lord the Chief Justice.


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