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Ramanna Rai and ors. Vs. A.G. Narayana Bhandary - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 164 of 1958
Judge
Reported inAIR1959Kant158; AIR1959Mys158; 1959CriLJ746
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 185, 195, 307, 374, 435, 438, 439, 455, 476, 476A and 476B; Indian Penal Code (IPC), 1860 - Sections 34, 193, 209, 463, 465, 466, 467, 468, 469 and 471; States Reorganisation Act, 1956 - Sections 119, 122, 125, 125(1) and 125(2); Code of Civil Procedure (CPC), 1908 - Sections 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 113, 115, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188 and 189 - Order XLVI, Rule 1; Constitution of India - Article 227; Indian Income-tax Act - Sections 66
AppellantRamanna Rai and ors.
RespondentA.G. Narayana Bhandary
Appellant AdvocateG.K. Govinda Bhat, Adv.
Respondent AdvocateN.T. Raghunathan and ;S. Ramayya Nayak, Advs.
Excerpt:
.....are satisfied in a particular case, the only court which has jurisdiction to decide that question is the high court within the territory of whose jurisdiction the particular subordinate court is functioning. the court may be perfectly satisfied that the proceeding stands transferred or does not stand transferred. in this connection it is interesting to note the difference of opinion between the several high courts in regard to the effect of section 185 of the code of criminal procedure as it stood before the amendment of 1923. the old section stated that whenever any doubt arises as to the court by which any offence should under the provisions of chapter xv of the code be enquired into or tried, the high court within the local limits of whose appellate jurisdiction the offender..........south no. 391/1952 was filed by the second petitioner before me against the respondent in the district munsiffs court of puttur, was fabricated by the first petitioner in connivance with the other petitioners and that he also made petitioners 3 and 4 to give false evidence in support of it. the suit had been dismissed on the finding that the lease deed in question was false.this petition was filed on 26-10-1956. notice-returnable 19-11-1956 was issued to the respondents therein (i.e., petitioners before me). before the matter could proceed further, the states reorganisation act (central. act 37 of 1956) came into force and consequently a part of the territory which was-subject to the jurisdiction of the district munsiff's court of puttur became part of the territory of the new state.....
Judgment:
ORDER

1. The respondent before me filed Order P. No. 117/1956 before the Court of the District Munsiff of Puttur, South Kanara, under Seections, 195and 476 of the Code of Criminal Procedure, praying that the Court may be pleased to make a complaint against the petitioners before me for offences-said to have been committed by them under Sections 193, 209, 467 and 471 read with Sections 34 of the Indian Penal Code.

2. The allegations in support of this application are that a certain lease deed, on the strength of which Original south No. 391/1952 was filed by the second petitioner before me against the respondent in the District Munsiffs Court of Puttur, was fabricated by the first petitioner in connivance with the other petitioners and that he also made petitioners 3 and 4 to give false evidence in support of it. The suit had been dismissed on the finding that the lease deed in question was false.

This petition was filed on 26-10-1956. Notice-returnable 19-11-1956 was issued to the respondents therein (i.e., petitioners before me). Before the matter could proceed further, the States Reorganisation Act (Central. Act 37 of 1956) came into force and consequently a part of the territory which was-Subject to the jurisdiction of the District Munsiff's Court of Puttur became part of the territory of the new State of Kerala. The property to which the lease deed in question related is situate within the said part of the territory which became a part of the territory of the Kerala State.

The petitioners, therefore, raised the preliminary objection that by virtue of Section 125 of the States reorganization Act Order P. 117/1956 automatically stood transferred to the Court of the District Munsiff of Kasargod in Kerala State. This preliminary objection was upheld by the District Munsiff of Puttur and he forwarded the papers to the District Munsiff of Kasargod for disposal. The respondent before me filed an appeal against that order before the District Judge of South Kanara under Section 476-B of the Code of Criminal Procedure and that appeal was numbered as Civil Miscellaneous Appeal No. 13 of 1957.

The learned District Judge disagreed with the view taken by the District Munsiff and held that Order P. 117/1956 did not stand transferred by virtue of Section 125 of the States Re-organisation Act. He, therefore, set aside the order of the District Munsiff and directed him to hear the petition and dispose it of according to law. He also directed that the District Munsiff may get back the records from the Court of the District Munsiff of Kasargod. In the meanwhile it must be stated that the District Munsiff of Kasargod had already dismissed the petition for default of appearance.

3. The Criminal Revision Petition is directed against the order of the District Judge made in C. M. A. 13 of 1957. The main attack against the order is that the order of the District Munsiff appealed from was not one either making or refusing to make a complaint under Section 476 and hence was not appealable at all under Section 476-B. It is also contended that the District Court had no jurisdiction to decide the correctness or otherwise of an order made under the Slates Reorganisation Act.

The first contention admits of no doubt whatever. The order of the District Munsiff was certainly not an order under Section 476. In fact, he has refused to act on the application on the ground that in his opinion it stood transferred to the District Munsiff's Court at Kasargod by virtue of Section 125 of the States Re-organisation Act. Such an order was not appealable under Section 476-B of the Code of Criminal Procedure. This position is not contested by the learned Counsel for the respondent either.

According to him it is unnecessary for him to canvass that position because the question whetherO. P. 117/1956 on the file of the District Munsiff of Puttur did or did not stand transferred by virtueof Section 125 is a question which could not be decided by any subordinate court, but has to be decided only by this High Court He contends, now, that the question is brought before this High Court, it can and should decide the question. On the merits of the question he contends that the view taken by the District Munsiff is wrong and that taken by the District Judge is the correct one to take.

While accepting the position that it is the exclusive jurisdiction of the High Court to decide a question under Section 125 of the States Re-organisation Act, the learned Counsel for the petitioner contends that the High Court could do so only if the subordinate court makes a reference under Sub-section (2) of Section 125 of the States Re-organisation Act and not otherwise and that, therefore, at the highest all that this Court could do in the circumstances is to call for a reference from the appropriate subordinate Court. On the merits of the question he supports the view taken by the District Munsiff of Puttur.

4. Section 125 of the States Re-organisation Act so far as is material for our present purpose reads as follows :

'125 (1). Every proceeding pending immediately before the appointed day before a Court (other than a High Court) XXX in any area which on that clay falls within a State shall, if it is a proceeding relating exclusively to any part of the territories which as from that day are the territories of another State stand transferred to the corresponding court X X X in the other State.

2. If any question arises as to whether any proceeding should stand transferred under Sub-section (1), it shall be referred to the High Court having jurisdiction in respect of the area in which the Court XXX before which X XXX such proceeding is pending on the appointed day, is functioning and the decision of that High Court shall be final.'

5. The language of the Section makes it perfectly clear that the transfer under it takes effect by force of the Statute itself and not by virtue of any order of transfer passed by any court. If the conditions set out in Sub-section (1) are satisfied, the proceeding: stands automatically transferred. It is also clear that should any question arise as to whether those conditions are satisfied in a particular case, the only court which has jurisdiction to decide that question is the High Court within the territory of whose jurisdiction the particular subordinate Court is functioning.

The subordinate Court has no jurisdiction whatever to decide the question. At this stage it mustbe pointed out that the word used in Sub-section (2) is 'question' and not 'doubt, difficulty or dispute.' It follows, therefore, that so far as the court itself is concerned it is immaterial whether it feels any difficulty or doubt in the matter and so far as the parties are concerned, whether they are of the same or different opinion in regard to the matter.

The court may be perfectly satisfied that the proceeding stands transferred or does not stand transferred. The parties may either agree that the matter either stands transferred or does not stand transferred or one of them may contend that it stands transferred and the other contend that it does not stand so transferred. Whichever be the way in which the question is raised, it must at once be referred to the High Court.

In this connection it is Interesting to note the difference of opinion between the several High Courts in regard to the effect of Section 185 of the Code of Criminal Procedure as it stood before the amendment of 1923. The old Section stated that whenever any doubt arises as to the court by which any offence should under the provisions of Chapter XV of the Code be enquired into Or tried, the High Court within the local limits of whose appellate jurisdiction the offender actually is may decide by which of those courts the offence shall be enquired into or tried.

6. One of the cases on the question is Charu Chandra v. Emperor decided by a Full Bench of the calcutta High Court & reported in ILR 44 Cal 595:(AIR 1917 Cal 137). I particularly invite attention to the discussions in the judgments of Woodroffe, J. and Mukhrrji, J., on the exact import of the word 'doubt.' The former learned Judge restricts it to cases where there is doubt regarding the existence or absence of jurisdiction or regarding facts constituting the basis of jurisdiction. The latter learned Judge distinctly observes that there would have been no scope for any controversy if instead of the word 'doubt' the Legislature had used the word 'question.' Apparently on this basis the Section itself was amended and completely redrafted by the Amendment Act XVIII of 1923 and the wording now is 'whenever a question arises as to which of two or more courts' etc.

7. References made by subordinate Courts to a High Court known to our law of procedure may be categorised as follows :

1. References made under particular provisions of Statutes for confirmation by the High Court of decision already arrived at by subordinate Courts as a condition precedent to giving effect to those decisions, as for example references under Section 374 of the Code of Criminal Procedure for confirmation of sentences of death awarded by courts of criminal sessions.

2. References made by subordinate Courts which have already come to a particular conclusion, for the reason that though the courts may arrive at those conclusions, they are not empowered to dispose of the matter by converting their conclusions into decisions without reference to the High Court -- as for example, references under Section 307 of the Code of Criminal Procedure when a sessions Judge disagrees with a verdict of the jury or under Section 438 of the same Code when a subordinate Court having called up and examined papers under Section 455 considers that the first court's decision requires revision.

3. References required to be made by subordinate Courts when a case sending before them involves a question as to the validity of any Act, Ordinance, Regulation etc. And they are of theopinion that such Act, Ordinance, Regulation etc., is invalid but has not been so declared by the High Court to which they are subordinate or by the Supreme Court. Such references are required to be made by civil courts under the proviso to Section 113 of the Code of Civil Procedure and by criminal courts under Section 432 of the Code of Criminal Procedure.

4. References made to the High Court when a subordinate Court entertains' reasonable doubt on any question of law or usage having the force of law which arises before or on the hearing of any matter in which no further appeal lies. An example of such a reference is one made by civil courts under ihe provisions of Section US read with Order XLVI, Rule 1 of the Code of Civil Procedure.

5. References made under special statutes of only certain points or questions of law for determination by the High Court. An example of such a reference is to be found in Section 66 of the Indian Income-tax Act.

8. It will be noticed that in category No. 1 the referring court will have already finally disposed of the matter so far as that court is concerned. In category No, 2, the court would have come to a conclusion but such conclusion cannot be a decision except on reference to the High Court. In categories Nos. 3. and 4 the referring courts do have jurisdiction to take the main matter before them to conclusion by finally adjudicating upon in cases falling under Order XLVI of the Code of Civil Procedure, the referring court is empowered even to pass a decree or make an order contingent on the decision of the court on the point referred, notwithstanding the fact that a reference has already been made.

In category No. 5, the reference is really in the nature of a restricted right of appeal and the referring authority is fully empowered to come to a filial decision even before the reference. In all these cases, one, thing is clear that the referring court retains jurisdiction either to decide the matter before it finally or at any rate to come to a conclusion on the matter and male a recommendation to the High Court. In all cases, the referring court is compowered and and required to state a case together with its opinion or recommendation thereon.

The position under Section 125(2) of the States Re-organisation Act is wholly different. The subordinate Court has no jurisdiction whatever on the matter. Its opinion also is irrelevant and a statement ment of it is not compulsory. The expression 'refer to the High Court' would merely mean 'place the matter before the High Court if the subordinate Court in spite of the fact that it has no jurisdiction to decide the question actually proceeds to decide the question and makes an order, there can be no doubt that such order is totally without jurisdiction.

The situation will at once attract the powers of the High Court to revise or set aside that order, under Section 115 of the Code of Civil Procedure, if the court in question is a civil court, under Sec-lion 435 of the Code of Criminal Procedure, if the court in question is a criminal court or under Article 227 of the constitution of India, if the court in question is not amenable to either of these Sections.Under all those three provisions the High Court can act not merely on an application by an aggrieved party, but also suo motu, whichever be the manner in which the matter comes to its notice. When the matter does come before its notice, the High Court has the power to pass such Order as it thinks proper in the circumstances. When, therefore, a subordinate court has already passed such an order, which is without jurisdiction and that order comes to the notice of the High Court in a revision petition filed before it, I think it is unnecessary for the High Court to withhold or postpone its decision and call for a reference from the lower Court

When the courts below have no jurisdiction whatever to decide the question and the High Court alone has the jurisdiction to decide- it, it seems to me illogical to say that the High Court's exclusive jurisdiction is dependent upon a subordinate Court making a reference. No such restriction can be placed upon the undoubted jurisdiction of the High Court to correct jurisdictional errors committed by the subordinate courts.

9. I hold, therefore, that this Court has jurisdiction in these very proceedings to decide the question whether the original petition No. 117 Order 1958 on the file of the court of the District Munsiff of Puttur does or does not stand transferred by virtue of Section 125(1) of the Stales Re-organisation Act, without calling for any reference from any subordinate Court.

10. I shall, therefore, proceed to examine the question on merits.

11. As already stated, the sole question is whether this proceeding is one which relates exclusively to any part of the territories of the State of Kerala.

12. The question whether a proceeding relates to a territory or locality and the manner in which it is so related to territories or locaites' depend largely, it not solely upon the nature of the, proceeding. If it is a civil suit, such territorial relationship has to be gathered from the provisions of the Code of Civil Procedure relating to the place of suing contained in Sections 15 to 25 of that Code having regard to such matters as the accrual of the cause of action, the situation of the immoveable properties in dispute, the residence of the parties etc. If it is a prosecution for an offence, the territorial relationship has to be gathered normally from the provisions of the Criminal Procedure Code relating to the place of inquiry or trial contained in Sections 177 to 189 in portion A of Chapter XV of that Code.

If the proceeding is one initiated by invoking the particular powers or jurisdiction of a particular statutory authority functioning under any special statute, such territorial relationship will have to be gathered from a combined operation of Section 119 of the States Re-organization Act, which preserves the territorial operation of statutes as existing on 1-11-1956 and Section, 122 of the same Act. which empowers appropriate Governments by notification to specify tho particular authority competent to exercise functions under these statutes. This is not an exhaustive list of points of enquiry for determining the territorial relationship of proceedings, nor can any such exhaustive list be made, because proceedings may be of considerable variety and every proceeding will have to be examined on its own statutory basis.

13. The learned Counsel for the petitioner has argued that the territorial nexus in this case may be gathered from the nature of the offences alleged in Order P. No. 117 of 1956 or more appropriately from the nature of the offences which the court, if it allows the petition, may include in the complaint it is going to make. The latter part of this argument is negative in nature. The learned Counsel states that we do not yet know what offences, if any, will be included in the complaint which the court may ultimately decide to make.

This will amount to confessing that we have no basis at all at present to determine the territorialnexus in which case it is not open to the petitioner to argue that conditions prescribed for transfer in Sub-section (1) of Section 125 of the States Reorganisation Act actually exist resulting in an automatic transfer under that Sub-section. Coming to the offence alleged in the petition, it will be noticed that the offence of giving false evidence in a judicial proceeding under Section 193 of the Indian Penal Code and the offence of making a false claim in a court of Justice under Section 209 of the Indian Penal Code are undoubtedly offences committed in the Court itself.

The offence of forgery punishable under Section 467 and the offence of using a forged document as genuine under Section 471, the learned Counsel for the petitioner points out, need not necessarily be ones committed in the Putter District Munsif's court, but may be ones committed in territory which forms part of the Kasargod Taluk of Kerala State. The learned Counsel for the respondent draws my attention to Section 182 of the Code of Criminal Procedure, according to which where it is uncertain in which of several local areas an offence was committed or where an offence is committed partly in one local area and partly in another or where it consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas.

He also refers me to a decision of the Madras High Court reported in In re Papayyaswamy, 1949 Mad WN 452 : (AIR 1949 Mad 833), in which an offence of using a forged document as genuine before the Madras Public Services Commission was held to be within the jurisdiction of the Presidency Magistrate's Court at Madras, because although the document was forged and posted at Vizagapatam the real user of it was only when the Madras Public Service Commission looked into it and considered it at Madras.

On the strength of this ruling, the learned Counsel for the respondent contends that wherever the lease deed in question might have been forged, its user being undoubtedly one in the Court of the District Munsiff of Puttur, the offence may he said to have been committed in Puttur Court itself and be triable by a jurisdictional magistrate in Puttur area. It is unnecessary for me to express any final opinion on the question which Magistrate will be the proper jurisdictiona1 Magistrate to receive the complaint, for two reasons : firstly one or other of these offences will be triable by a Magistrate having jurisdiction in Puttur area. Hence even a prosecution cannot be said to relate exclusively to any part of the Kerala State.

Secondly, the proceeding with which we are now concerned is not a proceeding for actually prosecuting an offender for an offence; it is only an application to the court to make a complaint ( under Section 476 of the Code of Criminal Procedure. It must be pointed put that under the Code of Criminal Procedure jurisdiction of Magistrates is based not merely upon considerations regarding the place of enquiry or trial under portion A of Chapter XV of the Code, but also upon conditions requisite for initiation of proceedings set out in portion B of the same Chapter. The latter portion deals with the conditions to be satisfied before a jurisdictional magistrate can take cognisance of offences.

With regard to certain offences committed in or in relation to any proceedings in any court including offences punishable under Sections. 193 and 209 of the Indian Penal Code and offences described in Section 463 (which may be punishable according to circumstances under any of the Sections 465, 466, 467, 468 and 469) and described and punishableunder Section 471 of the same Code, no magistrate can take cognisance except on a complaint in writing of the Court in or in relation to the proceedings before which such offences have been committed or on the complaint of some other court to which the former court is subordinate.

This is provided by Section 195 of the Code of Criminal Procedure and the same section also defines not only the original court but also the court to which it is subordinate within the meaning of that Section. On an exhaustive examination of Sections 195 and 476 and 476-A of the Code of Criminal Procedure, the Supreme Court of India in Kuldip Singh v. State of Punjab reported in : 1956CriLJ781 (also reported in 1956 Mad W. N. 465), has clearly held that no court other than the courts described in Section 195 of the Code of Criminal Procedure has any jurisdiction to make a complaint under either Section 476 or 476-A of the Code of Criminal Procedure.

It is, therefore, clear that in this case, the only courts which have jurisdiction to make a complaint of the nature described in Order P. 117/1956 would be the court of the District Munsiff of Puttur and the District Court of South Kanara. Hence, whoever be the jurisdictional Magistrate empowered to enquire into or try the offences mentioned in O. P. 117 of 1956 or such among them as the court may ultimately include in its complaint if one is made, no such Magistrate can take cognisance in tho absence of a complaint by either the court of the District Munsiff of Puttur or by the District Court of South Kanara. Both these courts are situate within the territory of the State of Mysore. Hence in this respect there is sufficient territorial nexus between O. P. No. 117 of 1956 and the State of Mysore. It cannot, therefore, be said that the said O. P. No. 117 of 1956 is a proceeding exclusively relating to any part of the territories of the State of Kerala.

I3A. I, therefore, hold that Order P. No. 117 of 1956 on the file of the court of the District Munsiff of Puttur does not stand transferred to any court outside the territory of the Mysore State by virtue of Section 125(1) of the States Reorganisation Act. Consequently, the court of the District Munsiff Kasargod has no jurisdiction either to entertain or dismiss that application. Its order dismissing the petition for default is void and inoperative.

14. The result is that the said original petition will he remitted to the Court of the District Munsiff of Puttur, with a direction to readmit it to its file with its original number and to proceed to deal with it in accordance with law.

15. Order accordingly.


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