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Rajaram Dadu and ors. Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1952CriLJ1
AppellantRajaram Dadu and ors.
RespondentThe State and anr.
Excerpt:
- - ). 8. it is well known that the superintendence by the high court of subordinate courts had led to the exercise of re visional powers by the high court. 11. this controversy need not be gone into, because whatever the nature of the revision application, any further revision is barred under the panchayats act, and thus a revision on the civil as well as the criminal side is equally barred......procedure code.11. this controversy need not be gone into, because whatever the nature of the revision application, any further revision is barred under the panchayats act, and thus a revision on the civil as well as the criminal side is equally barred.12. it was argued that the rules framed under the panchayats act make radical changes in the curses curiae and could only be framed by the provincial legislature and not by the provincial government. the question thus raised is one of great constitutional importance because under the government of india act, 1086, the criminal procedure code could only be amended in particular way by the provincial legislature. it is open to considerable doubt whether such power could be delegated to the provincial government. however, as the legality.....
Judgment:

Hidayatullah, J.

1. The three applicants Rajaram, Bikramdas, and Rma were convicted under Sections 448 and 504, Penal Code by the Nyaya Panchayat Court, Kamtha, and were sentenced to a fine of Rs. 30 each. They filed a revision application before the civil Judge (Class I), Bhandara, who maintained the conviction but reduced the sentence to Rs. 20 each.

2. The present application was filed on 16.6.1949 and purported to be under Section. 115, Civil P.C. Clause 11, Letters Patent of this Court, and Section 107, Government of India Act, 1915, read with Section 228, Government of India Act, 1985. The matter came up before me sitting singly, and on 17.11.1850 I heard arguments partly and the case was adjourned to 24.11.1950. Meanwhile, the applicants filed on 20.11.1950 application No. 333 of 1950 for a writ of certiorari or other appropriate direction, order, or writ under Articles 226 and 227 of the Constitution.

3. On the case coming up before me again on 1.12.1960 I ordered the papers to be placed before the Honourable the Chief Justice for constituting a Division Bench in view of the application for the enforcement of fundamental rights, which according to the practice of this Court had to be dealt with by a Division Bench. The learned chief Justice was pleased to constitute a Division Bench consisting of Mangalmurti and Mudholkar JJ.

4. On 5.1.1951 these learned Judges referred the matter once again to the Honourable the Chief Justice with a request to constitute a Full Bench, and the case was accordingly referred to the present Full Bench.

5. The conviction in this case was finally deter rained under the Central Provinces and Berar Panchayats Act I [1] of 1947 on 80.8.1949, when the order of the civil Judge (Class I), Bhandara, was passed. Under that Act no appeal or revision against such an order was possible, and in connection with the Debt Conciliation Act it has been held that the High Court cannot entertain a revision when revisions are expressly barred.

6. According to the applicants, the case of the applicants will not be over till their revision petition is finally decided, and during the pendency of the revision petition the powers of this Court have been increased by the present Constitution. They, therefore, claim the benefit of Articles 226 and 227.

7. That these articles are not to be treated retrospectively has been held in the Calcutta High Court on more than one occasion. That view has found favour also in other High Courts, and has also been the consistent opinion in this Court. In view of this, these powers cannot be invoked in the present case, as the decision of the civil Judge, which was final under the Act, was given before the present Constitution was adopted. This is also the view of the Supreme Court in Keshavan Madhava Mention v. State of Bombay case No. 9 of 1930 (S.G.).

8. It is well known that the superintendence by the High Court of subordinate Courts had led to the exercise of re visional powers by the High Court. The position was altered under the Government of India Act, 193S, and the power to entertain such revisions was expressly taken away. Thus, it is no use invoking Section 1O7, Government of India Act, 1915, read with Section 223, Constitution Act, 1935.

9. Clause 11, Letters Patent of this Court did not enlarge the jurisdiction of this Court. It only preserved the jurisdiction which was conferred on the Judicial Commissioner's Court. Clause 11, Letters Patent, cannot thus be construed as conferring independent appellate or revisional jurisdiction.

10. The matter, therefore, falls for consideration under Section 15, Civil Procedure Code and Section 439, Criminal Procedure Code. The case was a criminal one, but the revision therefrom lay to a civil Court. The learned Counsel says that it is not clear whether the matter after the revision by the civil Judge falls under the civil Procedure code or the Criminal Procedure Code.

11. This controversy need not be gone into, because whatever the nature of the revision application, any further revision is barred under the Panchayats Act, and thus a revision on the civil as well as the criminal side is equally barred.

12. It was argued that the rules framed under the Panchayats Act make radical changes in the curses curiae and could only be framed by the Provincial Legislature and not by the Provincial Government. The question thus raised is one of great constitutional importance because under the Government of India Act, 1086, the Criminal Procedure Code could only be amended in particular way by the Provincial Legislature. It is open to considerable doubt whether such power could be delegated to the Provincial Government. However, as the legality of the Panchayats Act could not be seriously challenged before us, I cannot go into this question in view of the prohibition contained in the Act. I must leave the solution of this controversy to a case in which the question can be properly raised. The application is accordingly dismissed without costs.

13. Mangalmurti and Mudholkar JJ.- This is an application for revision of an order passed by Civil Judge, Class I, Bhandara, dismissing the application for revision made by the applicants under Sub-section (3) of Section 83, Central Provinces and Berar Panchayats Act, 1946 (Central Provinces and Berar Act No. 1 of 1947). It has been made under Section 115, Code of Civil Procedure, Clause 11 of the Letters Patent of the High Court and Section 107, Government of India Act, 1915, read with Section 223. Government of India Act, 1935. When this application came up for hearing before Hidayatullah, J. an application was made to the Court praying for the amendment of the original application by including reliefs under Articles 226 and 227 of the Constitution of India.

14. A preliminary objection is taken to their tenability of the application, both as originally framed and, as it would 'stand, if the amendment is allowed. It is pointed out that, whereas the order sought to be revised was passed on 30.5.1949, the Constitution came into force on 26.1.1950 and, therefore, the remedies provided by the Constitution cannot be availed of by the applicants,

15. Recently the Supreme Court had to consider the question whether certain proceedings under the Indian Press (Emergency Powers) Act 28 of 1931, which were pending against a person, at the date of the commencement of the Constitution and which were alleged to be inconsistent with the fundamental rights conferred by Article 19(1)(a) of the Constitution were affected by Article 13(1) thereof. That was in the case of Reshavan Madhava Menon v. The State of Bombay case No. 9 of 1950 (S.C.) Their Lordships (Fazl Ali and Mukherjea JJ. dissenting) held that those proceedings were not affected even though the Act may have become void after the commencement of the Constitution. In our opinion, the principle underlying this decision would apply to the present case.

16. Articles 226 and 227 do not relate to matters of procedure but confer a power upon' High Courts to interfere in certain cases. This power, in our opinion, cannot be invoked by a person aggrieved by a decision of Court or a tribunal arrived at before these provisions came into force. We, therefore, decline leave to the applicants to amend their petition.

17. Now, as to the applicability of Clause 11 of the Letters Patent. This clause deals with appeals only, Hereunder the High Court is empowered to hear appeals (1) from decisions which before the grant of Letters Patent were subject to appeal before the Judicial Commissioner's Court and (2) those which thereafter were made subject to appeal to the High Court by any law. The present case does not fall in either of these categories as no right of appeal is conferred by the Nyaya Panchayat Act but on the contrary, an appeal is barred.

18. Next, as regards Section 107, Government of India Act, 1915 read with Section 223, Government of India Act 1935. The former provision has been superseded by Section 224 of the Act of 1985. No doubt, the latter provision preserves the jurisdiction exercised by a High Court before the Constitution Act of 1985 came into force. But, as the opening words of Section 228 make it clear, its provisions are subject to the provisions of Part Ix of the Act. Section 224 is one of the provisions contained in this Part. Sub-section (1) of this section confers power of superintendence of the High Courts over all Courts in India and corresponds to Section 107, Government of India Act, 1915. Sub-section (2) of Section 224 runs thus:

Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision.

So, whatever power has been preserved by Section 223 will be subject to the limitations imposed by this Sub-section. The order of the Civil Judge is not 'otherwise subject to appeal or revision' and so it cannot be challenged under any of these provisions in the Constitution Act of 1935.

19. What remains to be considered is whether Section 115 of the Code of Civil Procedure can be availed of by the applicants. Under this section the High Court has power to call for the record of any case which has been decided by a Court subordinate to it. This power, of course, relates to civil matters and is exercisable only in respect of decisions which have not been given finality by any law in the sense that the jurisdiction of the High Court to question them is not expressly barred. The provision under which the High Court exercises its jurisdiction in a criminal matter is Section 439, Criminal Procedure Code. But whether it is one or the other provision, the jurisdiction can be exercised only in respect of a Court subordinate to the High Court provided that its exercise is not barred by any law.

20. We would assume for the purpose of this case that the Civil Judge who decided this original application is a Court subordinate to the High Court. The provisions of Sub-section (3) of Section 83 give a finality to an order passed in revision and bar an application for review of that order. In Miralal v. Parasramsao I.L.R. (1941) Nag. 581 a division Bench of this Court had to consider the effect of the provisions of Section So, Belief of Indebtedness Act, which likewise gave finality to the revisional order and barred an application for revision against that order. It was contended that in spite of these provisions, the High Court had power to interfere under Section 115, Civil P.C. The contention was negatived and, we say with respect, quite rightly. The principle in the case applies to the present case and bars us from entertaining this application under Section 115, Civil P.C. or under Section 439, Criminal P.C.

21. For these reasons, we are clear that the application must be dismissed. Accordingly, we dismiss it but without cost.

22. By the Court - In view of the opinions delivered by us to day we dismiss this application but without costs.


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