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Sharada Bai and anr. Vs. K. Lakshminarayana Rao - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 129 of 1954
Judge
Reported inAIR1955Kant59; AIR1955Mys59; 1955CriLJ718
ActsCode of Criminal Procedure (CrPC) , 1908 - Sections 195, 195(3), 476, 476(1) and 476-B; Indian Penal Code (IPC), 1860 - Sections 191, 192, 196, 209, 463 and 471; Code of Civil Procedure (CPC), 1908
AppellantSharada Bai and anr.
RespondentK. Lakshminarayana Rao
Appellant AdvocateK.P. Muddappa, Adv.
Respondent AdvocateN. Bheemacharya, Adv.
Excerpt:
.....v. in the circumstances i am clearly, of opinion that the contention urged by the learned counsel for the petitioners in this behalf has to fail. 10. in this connection i would also like to refer to another case reported in -hikmat ullah khan v. 11. another ground on which the order of the learned sessions judge has to be set aside is that he has failed to record a finding that he was of opinion that it was expedient in the interests of justice to prosecute the petitioners as contemplated under section 476 (1), cr. i am of opinion that this direction also is bad in law.order1. this is a revision petition filed by the petitioners against the order of the learned sessions judge, mysore, in cr. misc. appeal no. 11/1953 reversing that of the learned subordinate judge, mysore, in misc. no. 103 of 51-52.2. the facts that have given rise to this petition are briefly as follows: the petitioners 1 and 2, who are wife and husband respectively were defendants in o. s. no. 46 of 50-51 on the file of the subordinate judge's court, mysore. the respondent was the plaintiff. the suit filed by the respondent-plaintiff was based on a registered mortgage deed and the petitioners pleaded 'inter alia' partial discharge of the debt in question. in support of the discharge pleaded, the petitioner produced two letters which are marked as exs. i and ii purporting to have been.....
Judgment:
ORDER

1. This is a revision petition filed by the petitioners against the order of the learned Sessions Judge, Mysore, in Cr. Misc. Appeal No. 11/1953 reversing that of the learned Subordinate Judge, Mysore, in Misc. No. 103 of 51-52.

2. The facts that have given rise to this petition are briefly as follows: The petitioners 1 and 2, who are wife and husband respectively were defendants in O. S. No. 46 of 50-51 on the file of the Subordinate Judge's Court, Mysore. The respondent was the plaintiff. The suit filed by the respondent-plaintiff was based on a registered mortgage deed and the petitioners pleaded 'inter alia' partial discharge of the debt in Question. In support of the discharge pleaded, the petitioner produced two letters which are marked as Exs. I and II purporting to have been sent to them by the respondent-plaintiff, acknowledging receipt of Rs. 4000/-. The learned Subordinate Judge found, on evidence, that the discharge pleaded by the petitioners based on Exs. I and II was false and he accordingly decreed the respondent-plaintiff's suit.

Then, the respondent-plaintiff filed an application before the learned Subordinate Judge under Section 476 read with Section 195, Criminal P. C., requesting the Court to prefer a complaint against the petitioners for offences under s. 191, 192, 196, 209 and 463, Penal Code. To that application the petitioners filed. objections saying that they were not guilty of any offence and that the application was filed just to harass them. The learned 8ubordinate Judge after going through the evidence adduced in the case and after taking into consideration the surrounding circumstances held that there was not sufficient evidence to prove that the petitioners had forged Exs. I and II, and that no action was necessary under the circumstances and he accordingly dismissed the petition.

Then the respondent-plaintiff took that order in appeal to the learned Sessions Judge, Mysore, who disagreeing with the finding of the learned Subordinate Judge held that an offence under Section 471, Penal Code was made out against the petitioners. He accordingly allowed the appeal and directed the learned Subordinate Judge to prefer a complaint to the City Magistrate, Mysore against the petitioners for an offence under Section 471, Penal Code. It is as against that order of the learned Sessions Judge that this revision petition is filed.

3. The main point that arises for consideration is whether the order of the learned Sessions Judge can be supported. It appears to me that the order of the learned Sessions Judge directing the learned Subordinate Judge to prefer a complaint against the petitioners under Section 476, Criminal P. C., cannot at all be sustained and the same has to be set aside on more than one ground. The first ground urged on behalf of the petitioners is that the order of the learned Sessions Judge directing the prosecution of the petitioners is without Jurisdiction, ultra vires and illegal. In support of this contention two arguments were advanced by the learned counsel. The first one was that the subject-matter of the suit in O. S. No. 46 of 50-51 on the file of the Subordinate Judge, Mysore, exceeded Rs. 5000/-, that the District Court has thus no jurisdiction to entertain an appeal on the decree passed in the said original suit, that the appeal lay to the High Court, that the appeal against the order passed by the learned Subordinate Judge dismissing the respondent's petition should have been preferred to the High Court and that therefore the District Court had no right -to hear the appeal.

4. As a matter of fact in this case the appeal against order of the learned Subordinate Judge was not preferred to the District Judge, but to the Sessions Judge, as can be seen from the records. But in view of the importance of the point of law involved I would like to deal with that question also. It is no doubt true that the subject-matter in O. S. No. 46 of 50-51 exceeded Rs. 5000/-. As the law then stood the appeal from that decree of the learned Subordinate Judge lay to the High Court and not to the District Court. I am of opinion that for an appeal under Section 476 (B), Criminal P. C., it is not necessary that the subject-matter of the suit out of which the proceedings under Section 476, Criminal P. C,, arise should be within the appellate jurisdiction of the Court to which the appeal is preferred. What the law contemplates appears to be that it is enough that the Court to which the appeal is preferred is a court to which appeals ordinarily lie from the Court which passes the order.

5. In this connection I would like to refer to the provisions of Section 476-B, Criminal P. C. :

'476-B : Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under Section 476 or Section 476-A, 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 com-plaint which the subordinate Court might have made under Section 476, and if it makes such complaint the provisions of that section shall apply accordingly.'

From a reading of Section 476-B it is seen that the appeal lies to the Court to which the court passing the order is subordinate within the meaning of Section 195, Sub-section (3), Criminal P. C. Section 195, (3) reads as follows:

'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;'

It is clear from a reading of this section that an appeal under Section 476-B, Criminal P. C., lies to the court to which the appeals ordinarily lie. The use of the words 'ordinarily lie' in Section 195 (3), Criminal P. C., suggests that for purposes of appeal under Section 476-B, Criminal P. C., it is enough if the Court to which the appeal is preferred has ordinarily appellate jurisdiction over the Court I which passed the order irrespective of the fact whether an appeal from a particular decree or; order lies to that court or not. In this connection! I would also like to refer to Clause (a) (Proviso (a)? of Sub-section (3) of Section 195, Criminal P. C. That pro-vides that where appeals lie to more than one Court the Appellate Court of inferior Jurisdiction shall be the Court to which such Court shall be deemed to be subordinate. The District Court is a court to which appeals from decrees of a Subordinate Judge's Court up to a certain limit ordinarily lie. Therefore, the District Court will have jurisdiction to entertain an appeal under Section 476-B, Criminal P. C., against the order passed under Section 476, Criminal P. C., even though the subject-matter of the original suit out of which the proceedings under Section 476, Criminal P. C., arose exceeded the pecuniary appellate jurisdiction of the District Court.

6. Here I would like to refer to the case reported in -- 'Thakur Prasad v. Emperor', AIR 1938 Pat 122 (A). The view taken above by me is fully supported in the above decision. In that case also the order under Section 476, Criminal P. C., arose out of a suit valued at more than. Rs. 50007- and the appeal against that order was preferred to the High Court of Patna. The contention urged In that case was that as the subject-matter of the original proceeding exceeded Rs. 5000/- the learned District Judge had no jurisdiction to enter tain the appeal against that decree and that therefore the order passed under Section 476, Criminal P. C., was. appealable only to the High Court and not to the District Court. Rowland J. negatived that contention arid held that the appeal lay to the District Court in view of the proviso (a) to 8. 195, Sub-section (3), Criminal P.C. The learned counsel for the petitioners has not been able to point Out any provision of law or any case law contrary to the view taken above. In the circumstances I am clearly, of opinion that the contention urged by the learned counsel for the petitioners in this behalf has to fail.

7. The next ground urged by the learned counsel for the petitioner in support of his contention that the learned Sessions Judge had no jurisdiction to entertain the appeal and that his order is ultra vires and illegal, is that the appeal itself was incompetent inasmuch as the appeal against the order of the learned Subordinate Judge did not lie to the learned Sessions Judge, but to the District Judge, that the order in question has been passed by the learned Sessions Judge as such and that he had no jurisdiction. This contention has been based relying on the provisions of Sections 195 and 476, Criminal P.C. According to these sections the appeal against an order under Section 476, Criminal P. C., lies to the Court to which the court passing the order is subordinate.

That the appeal in this case against the order of the learned Subordinate Judge has been preferred to the Court of Session & not to the Court of the District Judge cannot at all be doubted. It is seen from a perusal of the memo of appeal filed in the Court of Session that the appeal was preferred to the Court of Session and not to the District Court. Even the order passed by the learned Sessions Judge goes to show that the appeal was preferred to the Court of Session, and the order has been passed by the Judge as Sessions Judge and not as District Judge. Therefore, it may be taken as an admitted fact that the order under revision is one made by the Court of Session and not the Court of the District Judge. It need hardly be stated that a Court of Session is different from a Court of the District Judge. These Courts are constituted under different Codes and have different and distinct powers. To put it more plainly, one deals with purely criminal matters and the other with purely civil matters.

8. Therefore, the point that arises for consi deration is whether the Court of the learned Sub ordinate Judge passing the order under Section 478, Criminal P.C., can be said to be a Court subordinate to the Court of Session. By no stretch of imagination could it be said to be a court subordinate to the Court of Session. When a Munsiff or a Subordinate Judge takes proceedings under Section 476. Criminal P.C., he will be acting as a Civil Judge. It may be that for certain purposes proceedings under Section 478, Criminal P.C., are termed as 'criminal proceedings'. As observed in the case reported in --. 'Daw Saw Khin v. Ko Hpar', AIR 1941 Rang 163 (B), by Mya Bu and Ba U, JJ., there is nothing in the words of Sections 195, 476, 476-A or Section 476-B or in the combined effect of the operation of these sections to warrant the view that a Civil Court or a Revenue Court acting under Section 476, Criminal P.C., is a Criminal Court.

9. It is no doubt true that an appeal against an order under Section 476, Criminal P.C., is allowed under the very Code under Section 476-B and it does not take away the jurisdiction of the Civil Appellate Court to which the Civil Judge who passed the order is subordinate. Therefore an appeal against the order passed under Section 476. Criminal P. C by a Munsiff or a Subordinate Judge will lie to the District Judge to whom these Courts are subordinate and such appeals are to be heard by the appellate court exercising civil jurisdiction. In other words it is the provisions of the Civil Procedure Code that are applicable to cases of this nature. If any authority is wanted for this proposition of law, the case reported in -- 'Nasaruddin Khan v. Emperor : AIR1927Cal98 , maybe perused. Admittedly the court of the Subordinate Judge, Mysore is a Civil Court; it is that Court that made the order under Section 476, Criminal P.C. The appeal against that order lies to the Civil Court to which it is subordinate -- '(Vide Wajid Ali v. Emperor AIR 1934 Oudh 344 (2) (D). The jurisdiction of the Sessions Court arises only when a court subordinate to it passes the order appealed from. In this case, as said already, the Subordinate Judge's Court, Mysore is not subordinate to the Court of Session, Mysore.

10. In this connection I would also like to refer to another case reported in -- 'Hikmat Ullah Khan v. Sakina Begam : AIR1931All305 . The facts in that case no doubt are not quite identical with the facts of the present case. But the principle as enunciated in that decision may by implication be made applicable to the facts of the present case. In that case the respondents made an application to the Munsiff under Section 476. Cr. P. C. That application was refused. The petitioners in that case appealed against that order to the District Court. By some mistake on the part of the Office, the Court to which the appeal was preferred was noted as Court of Session, though in the body of the memo of appeal the appellants had mentioned the Court . as the District Court. In that case also the same argument was advanced to the effect that the Court of Session had no jurisdiction to entertain the appeal and that the order was ultra vires and Illegal.

From a reading of that decision it appears to me that the learned Judges would have accepted that contention, but for the fact that they came to the conclusion on facts that the appeal was filed in the District Court, that the order was passed as District Judge and that the mention of the Court to which the appeal was preferred aa Sessions Court was due to some mistake on the part of the office and that the order was quite legal. Therefore, there could be no doubt aa regards the proposition of law with respect to this point. I am of opinion that the Court of the learned Subordinate Judge, Mysore, was not [a Court subordinate to the Court of Session, that an appeal from an order made by the learned Subordinate Judge as such under Section 476, Cr. P.C., was, not appealable to the Court of Session, that the appeal itself was incompetent and that the order passed by the learned Sessions Judge is without Jurisdiction and hence 'ultra vires' and Illegal.

11. Another ground on which the order of the learned Sessions Judge has to be set aside is that he has failed to record a finding that he was of opinion that it was expedient in the interests of justice to prosecute the petitioners as contemplated under Section 476 (1), Cr. P. C. Section 476, Cr. P. C. lays down that the Judge should record such a finding. The learned Sessions Judge has nowhere in his order recorded a finding to that effect. The provisions of Section 476, Cr. P. C. in this behalf are mandatory. This is the view taken in the case reported in -- 'Keramat Ali v. Emperor : AIR1928Cal862 . I may also refer in this connection to the case reported in -- 'In re Pakkiriswami Pillai' AIR 1948 Mad 297 (G). His Lord-Ship has held in that case that in absence of a finding that the prosecution is expedient in the interests of Justice an order under Section 476 cannot stand as the defect is incurable. Therefore on this ground also the order of the learned Sessions Judge cannot at all be sustained.

12. Again, I see from the concluding portion of the order of the learned Sessions Judge that he has directed the lower court, that is, the Subordinate Judge's Court, Mysore, to file a complaint against the petitioners to the City Magistrate, Mysore, for an offence under Section 471 I. P. C. I am of opinion that this direction also is bad in law. What Section 476-B says is that the superior court to which an appeal is preferred may direct the withdrawal of the complaint or itself make the complaint which the Subordinate Court might have made and has not made. What I mean to say is that when an appellate court comes to the conclusion that it is expedient in the interests of Justice that a complaint should be made under Section 476 Cr. P. C. that court itself should prefer the complaint and not direct the lower Court to do so.

This is the view taken by their Lordships in the case reported in -- 'Manir Ahamed v. Jogesh Chandra : AIR1929Cal195 . Their Lordships have held in that case that in an appeal under Section 476-B Cr. P. C., the appellate Court has no jurisdiction to remand the case directing the Court of first instance to file a complaint, but must do so itself. In this case the learned Sessions Judge has directed the learned Subordinate Judge, Mysore, to prefer a complaint against the petitioners, which appears to be quite illegal. I am of opinion that on account of these/various technical irregularities and illegalities the order of the learned Sessions Judge has to be set aside.

13. The learned Subordinate Judge in the course of his order in Misc. No. 103 of 51-52 has observed that no action under Section 476, Cr. p. C. was necessary. The learned Subordinate Judge who delivered the judgment in O. S. No. 46 of 50-51 is also of the opinion that no action against the petitioners is necessary. The learned Sessions Judge has given a finding that the petitioners have committed an offence under Section 471, I.P.C. by making use of Exs. I and II as genuine knowing them to be forged. It cannot be said that the: said finding of the learned Sessions Judge, is without any foundation. The first petitioner is stated to be a gosha lady and the second petitioner is stated to be her husband. According to the case as set out in the pleadings in the original suit, it Is the first petitioner, who is said to have made the payment to the respondent-plaintiff.

The first petitioner who, as said already, a ghosha woman appears to have been misguided and I very much doubt whether she was really aware as to what she was actually doing. It is open to the second petitioner to contend that his wife said that she had paid the amount to the respondent-plaintiff and that he believed her. Both the courts below have also come to the conclusion that the possibility of the petitioners having believed. Exs. I and II to be genuine cannot at all be excluded. In view of these considerations I am of opinion that it is not expedient in the interests of Justice to prosecute the petitioners after such a lapse of time.

14. In the result this revision petition is allowed and the order of the learned Sessions Judge directing the learned Subordinate Judge to prefer a complaint against the petitioners for an offence under Section 471 I. P. C. is set aside.

15. Revision allowed.


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