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V. Thimma Reddi and ors. Vs. Dammur Gangamma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 255 of 1954
Judge
Reported inAIR1955Kant46; AIR1955Mys46
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195, 439, 476 and 476B; Code of Civil Procedure (CPC), 1908 - Sections 115; Indian Panel Code, 1860 - Sections 193, 209, 463, 465 and 467
AppellantV. Thimma Reddi and ors.
RespondentDammur Gangamma
Appellant AdvocateB. Ramachandra Rao, Adv.
Respondent AdvocateB.S. Keshava Iyengar, Adv.
Excerpt:
.....from others - statute do not warrant district munsiff to acts or purports to act on direction of district judge (dj) but to act on his own accord - under section 476-b superior court may itself make complaint which subordinate court might have made under section 476 - order of dj illegal and without jurisdiction. - constitution of india articles 226 & 227; [s. abdul nazeer, j] writ jurisdiction discretionary power decision making process judicial review held, if the decision is vitiated by mala fides, unreasonableness and arbitrariness, the court must exercise its discretionary power under article 226 of the constitution of india. the said power under article 226 shall be exercised with the great caution and also in furtherance of public interest and not merely on the making..........connecting the counter-petitioners with the alleged concoction ' of the pronote. on appeal, the district judge re-assessed the same evidence and allowed the appeal by directing the trial court to lodge the complaint as prayed for, leaving it to the magistrate before whom it might be filed to hold a preliminary enquiry either by himself or through the police, to enable both sides to produce such additional evidence as they may have relating to the points in issue before the case is taken up on file and proceeded with. this revision petition has been filed against that order. 4. mr. b. ramachandra rao, for the petitioners, contended that the district judge had no jurisdiction to pass the order under revision.' the contention must be accepted. 5. the procedure to be followed in a case of.....
Judgment:
ORDER

1. This petition arises out of an order passed by the District Judge, 'Bellary. directing the District Munsiff to lodge a complaint against the petitioners under Section 476, Cr. P. C., for offences under Sections 193, 209, 463, 465 and 467. I. P. C. The District Munsiff before whom a petition had been filed under Section 476, Cr. P. C., had dismissed it on the ground that no prima facie case was made out to impel him to take action.

2. The facts leading to the said petition are as under: The petition in O. P. 4/49 from which this petition arises, was filed before the District Munsiff by the 1st defendant in O. S. 145/48 of that Court. The said original suit was filed against her for the recovery of the amounts due on a pronote dated 16-5-45 for Rs. 2000/- alleged to have been executed by the late Thimma Reddy, her deceased husband. The defendant having opposed the claim, the trial Court dismissed the suit for the reason that the pronote was not genuine. The pronote bore genuine signature on the stamps affixed thereon but on the circumstantial evidence available in the case, the court upheld the theory of the defendant that they were the stamps that had already been used for some other document and which are re-affixed to concoct the suit pronote.

3. The suit is said to have been disposed of on 7-10-48. More than three months thereafter, O. P. 4/49 was filed by which time, the Judge who had decided the original suit had left the place. The succeeding Judge Investigated into the meritsof the evidence and reached the conclusion that it was not a fit case where the Court should lodge a complaint, as there was no direct evidence to make out a prima facie case connecting the counter-petitioners with the alleged concoction ' of the pronote. On appeal, the District Judge re-assessed the same evidence and allowed the appeal by directing the trial Court to lodge the complaint as prayed for, leaving it to the Magistrate before whom it might be filed to hold a preliminary enquiry either by himself or through the police, to enable both sides to produce such additional evidence as they may have relating to the points in issue before the case is taken up on file and proceeded with. This revision petition has been filed against that order.

4. Mr. B. Ramachandra Rao, for the petitioners, contended that the District Judge had no jurisdiction to pass the order under revision.' The contention must be accepted.

5. The procedure to be followed in a case of complaint by the Court is essentially different from that obtaining in the case of any private person doing it in his own right. It is open to the court under Section 476, Cr. P. C., before which an offence is committed to prefer a complaint, and the special procedure prescribed by Section 476 which is supplemental to Section 195, constitutes that Court itself as the complainant. Under Section 476 the Court enquiring should satisfy itself that it is expedient in the interests' of justice to take such action (Vide K. V. Muniswami Mudaliar v. Rajaratnam Pillai,' AIR 1922 Mad 495 (FB) (A) ). The policy of law is not to allow private parties to take undue advantage of the right given . and misuse that right, to satisfy a private grudge. It is obvious that the Court filing the complaint should form its own opinion and not take the opinion from others secondhand. If the District Munsiff acts or purports to act, not of his own accord but at the direction of the District Judge it is held to be bad and such an act is, by implication, not warranted by the statute. In fact, under Section 476-B, the superior Court may itself make the complaint which the subordinate Court might have made under Section 476. That is the effect of the plain reading of the section Itself. The order of the District Judge is therefore illegal and without Jurisdiction.

No decision of this Court, touching the point has been brought to my notice. A Division Bench of the Calcutta High Court has held that under Section 476-B, Cr. P. C., the appellate Court cannot remand a case directing the Court of first instance to file a complaint but must do so itself ('Vide Manir Ahamad v. Jogesh Chandra Roy,' AIR 1929 'Cal 195 (B). In 'Kuppaswami Rao v. Sathiapria Rao : AIR1931Mad768 , Jackson J. observed that there is no provision of law by which a Sessions Judge can direct the Additional District Magistrate to prefer a complaint under Section 476-B and that the superior Court may itself make a complaint.

6. The counsel for the respondent while not disagreeing with the above aspect, suggested thatthe case might be sent back to the appellate Court to rectify the procedure, and in support of his argument he cited certain cases which were filed and decided under Section 115, Civil P. C. Latterly, the majority view is that a revision to the High Court lies only on the criminal side and not under Section 115, Civil P. C. Revision may arise either on the civil side or on the criminal side. Irrespective of the denomination of the Court dealing with the alleged offence it is only under the specific powers invested under Section 476, Cr. P. C., that the preliminary enquiry is started. For the purpose of that section, a civil or revenue Court is empowered as the Criminal Court. The decisions holding that as a civil Court of - appeal, the cases may be remanded to the trial Court are no longer countenanced.

In 'Emperor v. Bhatu, Sadu Mali,' AIR 1938 Bom 225 (FB)(D), it has been laid down that an application for revision from an order under Section 476, Cr. P. C., by a Civil Court to the High Court should be heard and decided by the High Court, in accordance with the provisions of Section 439 of that Code, that the order being an order made by a Court exercising criminal powers, such powers, to revise such order arises under the Cr. P. C. and not under Section 115, C. P. C. Similar is the opinion cf the Lahore High Court ('Vide Dhanpat Rai v. Balak Ram,' AIR 1931 Lah. 76 (FB)(E), that irrespective of whether the trial Court be civil or criminal or revenue the procedure of appeal under Section 476-B is a procedure only under the provisions of Cr. P. C. It is further observed that an appellate Court cannot remand a case to the trial Court but can itself make an enquiry into the case, when it comes to the conclusion either that the trial Court has made no preliminary enquiry at all, or has made a defective enquiry, and take all evidence that is necessary for completing the preliminary enquiry. The Madras High Court has followed these decisions (Vide ''In re D. S. Raju Gupta, AIR 1939 Mad 472 (F) )'. I respectfully agree with those decisions and hold that the nature of the proceedings to hold an enquiry in order to lodge a complaint is of a criminal nature irrespective of the fact that the proceedings have arisen from a civil or a criminal Court. It is doubted at this stage whether this Court could deal with this revision petition at all, as it is filed under Section 115, Civil P. C. The provision of the law under which the petition is filed, is, in the view I have taken, obviously incorrect. Whatever be the method adopted in bringing the matter to its attention, the High Court can act in revision under Section 439. Cr. P. C., as observed by Beaumont C. J. in the Full Bench case of the High Court of Bombay referred to above.

7. It may finally be observed that the pronote alleged to have been concocted Is dated 16-5-45; the order of the trial Court is of the year 1948 and that of the appellate Court is of 1950. It appears to me that at this distance of time,. It is futile to think of prosecuting the parties on mere 'suspicious circumstances, especially as the Court of the first instance has found that the facts are too insufficient to warrant a prima facie conclusion that there is likelihood of conviction of the concerned parties, if the prosecution is launched. In any view of the case, the order of the District Judge is unsustainable and is set aside. The revision petition is allowed confirming the order of the Court of first instance.

8. Revision allowed.


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