Skip to content


Uma Shankar Hari Nandan Ahir Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. Nos. 396 of 1966 and 316 of 1968 and Spl. Appeal No. 117 of 1969
Judge
Reported inAIR1971All96; 1971CriLJ354
ActsUttar Pradesh High Courts Amalgamation Order, 1948
AppellantUma Shankar Hari Nandan Ahir
RespondentThe State
Appellant AdvocateS.S. Saksena, Adv.;S.D. Misra, ;R.N. Trivedi, ;K.H. Mirza and ;H.N. Tilhari, Advs.
Respondent AdvocateK.N. Kapoor, Adv.
Excerpt:
.....14 is judges sitting at lucknow are to exercise the power of the high court - in respect of the cases arising in oudh only - cases arising in oudh have been treated to be separate class and the function of the judge sitting in lucknow is to exercise the jurisdiction of new high court in respect of those cases. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional..........courts thereof, shall sit at allahabad or at such other places in the united provinces as the chief justice may, with the approval of the governor of the united provinces, appoint.provided that unless the governor of the united provinces with the concurrence of the chief justice, otherwise directs, such judges of the new high court, not less than two in number, as the chief justice, may from time to time nominate, shall sit at lucknow in order to exercise in respect of cases' arising in such' area in oudh, as the chief justice may direct, the jurisdiction and power for the time being vested in the new high court:provided further that the chief justice may in his discretion order that any case or class of cases arising in the said area shall be heard at allahabad.'5. it is well known.....
Judgment:

Jagdish Sahai, J.

1. The Criminal revisions and the special appeal mentioned above have been laid before this Bench for the decision of the question whether the Criminal revisions are competent to be heard at Lucknow and whether Writ Petition No. 193 of 1968 out of which special appeal no. 117 of 1969 arises was wrongly rejected by Sahgal. J. on the ground that the Lucknow Bench could not entertain it.

2. The Criminal Revision No. 396 of 1966 is directed against the judgment and order of the Additional Sessions Judge. Lucknow, dismissing the appeal filed by the applicant challenging his conviction under Sections 120-B & 420, I. P. C. and the sentences awarded under those provisions by the Special Magistrate posted at Lucknow. The special Magistrate whose court is located at Lucknow and who tried the case has been specially empowered to try all such cases within the State of Uttar Pradesh. This Court has issued notice to the applicant in Criminal Revision No. 396 of 1966 as to why his sentence should not be enhanced. The proceedings arising out of that notice have been separately numbered as Criminal Revision No. 316 of 1968.

3. Writ Petition No. 193 of 1968 was filed by Fateh Bahadur Lal who was serving in the seed store at Phoolpur in the district of Azamgarh. He was put under suspension with immediate effect and all ached to District Agriculture Officer, Azamgarh. The writ petition was directed against the order of suspension. A preliminary objection was taken before Sahgal, J., that the Lucknow Bench had no jurisdiction to hear the writ petition inasmuch as the order of suspension was not passed by an authority who resided in the area constituting Oudh. It was contended that the petitioner was put under suspension under the orders of the Deputy Director of Agriculture, Gorakhpur, dated 12-7-1967, while the petitioner was posted at Phoolpur in Azamgarh District. The learned single Judge dismissed the writ petition on the finding that it was not competent before -the Lucknow Bench. The respondents to the writ petition were (1) State of Uttar Pradesh through the Director of Agriculture, U. P., Lucknow, (2) District Agriculture Officer, Azamgarh, and (3) Deputy Director of Agriculture Gorakhpur Region, Gorakhpur.

4. The decision of the question raised before this Full Bench depends upon the interpretation of Clause 14 of the U. P. High Courts (Amalgamation) Order, 1948, (hereafter called as the Amalgamation Order). That provision reads:

'The new High Court, and the Judges and division courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint.

Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such Judges of the new High Court, not less than two in number, as the Chief Justice, may from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases' arising in such' area in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the New High Court:

Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said area shall be heard at Allahabad.'

5. It is well known that before the amalgamation order was enforced, the State of Uttar Pradesh (the United Provinces of Agra and Oudh, as it was then called) had two High Courts, that is, the High Court of Judicature at Allahabad and the Chief Court of Oudh. The Chief Court of Oudh exercised jurisdiction over the districts constituting the area known as Oudh, to the exclusion of the Allahabad High Court. The Allahabad High Court exercised jurisdiction over the rest of the Province.

6. The Amalgamation Order was passed and enforced because it was thought fit that there should not be two High Courts in the same Province. Two questions are raised for determination in the instant cases. The first one is whether the Judges appointed by the Chief Justice to sit at Lucknow shall have exclusive jurisdiction to decide cases arising in such area in Oudh, as the Chief Justice may direct, and whether the cases arising outside Oudh could be heard at Lucknow, and as to what does the expression 'cases arising in ......... Oudh' mean.

7. Clause 14 of the Amalgamation Order provides that the New High Court and the Judges and division courts thereof shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces appoint. A perusal of Clause 14 of the Amalgamation Order shows firstly that Allahabad was not to be the exclusive seat of the New High Court. There could be other places also where the Benches of the High Court could sit, but that had to be done by the Chief Justice with the approval of the Governor of the State. The use of the words 'shall sit at Allahabad or at such other places' clearly points to that conclusion. The first proviso to clause 14 is imperative that Judges not less than two in number shall sit at Lucknow unless the Governor of the State with the concurrence of the Chief Justice otherwise directs. In view of the first proviso to Clause 14, it must be held that the Judges or the Bench sitting at Lucknow was to exercise jurisdiction of the New High Court in respect of cases arising in such area in Oudh as the Chief Justice may direct. There is nothing in Clause 14 or any other clause in the Amalgamation Order to show that for cases arising in such area in Oudh as the Chief Justice may direct, the Allahabad Bench and the Lucknow Bench both had concurrent jurisdiction. The main purpose of a proviso is to carve out an exception to the general rule. The first proviso to Clause 14 therefore, provided that notwithstanding the main clause of Clause 14, in cases arising in such area in Oudh as the Chief Justice may direct, the Judges sitting at Lucknow shall alone exercise jurisdiction, i.e., entertain and hear those cases.

It has been contended that if this view is taken, it would be dividing the High Court in two parts and in fact making two High Courts in one State. The submission is that such an interpretation would militate against the provisions of Article 214 of the Constitution which provides that there shall be one High Court in a State The Amalgamation Order was passed before the present Constitution was enforced or even framed. It was passed in the background of there being two High Courts in the same province and the clear intention of the Legislature seems to be that the litigant public of Lucknow and the advocate practising there should not be inconvenienced by the Amalgamation Order depriving them of the ever standing facility of having their cases decided at Lucknow, a privilege which they enjoyed by virtue of the existence of the Chief Court at Oudh by the separate judicial administration of the Province of Agra and the Province of Oudh.

8. The Amalgamation Order does not say that the cases arising in Oudh can also be instituted or heard at Allahabad. The first proviso is a special and self-contained provision dealing with cases arising in Oudh. Inasmuch as it specifically provides that the jurisdiction of the High Court in respect of cases arising in Oudh shall be exercised by the Judges sitting at Lucknow, it necessarily follows that except as provided by the second proviso, jurisdiction in respect of such cases shall not be exercised at Allahabad. This result follows from two principles i. e. (1) the special shall exclude the general and (2) when a thing is required to be done in a particular manner, it shall be done in that manner only. The purpose for which the Judges have to sit at Lucknow is to decide all the cases arising in such area in Oudh as the Chief Justice may direct. The words 'cases arising in such area in Oudh' are of the widest amplitude and admit of no exceptions. Their normal connotation can only be that the Judges sitting at Lucknow were to exercise jurisdiction in respect of all cases arising in such area in Oudh as the Chief Justice may direct. I have already said earlier that this provision had to be made in the background of the circumstances that Oudh had a Chief Court and before that a Judicial Commissioner's Court of its own and even though the Chief Court of Oudh and the Allahabad High Court were amalgamated, the idea was not to deprive the citizens of Oudh and the lawyers there of the privileges that they always exercised by virtue of the establishment of the Chief Court of Oudh.

9. The second proviso only empowers the Chief Justice to direct the hearing of a case or class of cases arising in Oudh, at Allahabad, It would be noticed that whereas the first proviso speaks of 'exercise........the jurisdiction', which expression would include institution as also hearing of cases, the second proviso speaks only of being 'heard'. The legislature has deliberately used two expressions in the two provisos to the same provision. The result therefore, is that cases arising in such areas of Oudh as the Chief Justice directs shall be instituted at Lucknow alone and under the second proviso the Chief Justice can only direct their hearing at Allahabad. The second proviso would be meaningless if without it, cases arising in Oudh could be instituted and heard at Allahabad. Under the Rules of the Court that Chief Justice could allot any case or class of cases to a Judge or Bench, but he would not under this power direct a case arising in Oudh to be instituted or heard at Allahabad because of the absolute rule contained in the first proviso. The second proviso had, therefore, to be enacted. The function of a proviso is to enable a thing to be done which could not otherwise be done. By virtue of the second proviso the Chief Justice gets the power to pass an order that any case or class of cases arising in such area in Oudh as he may direct, be heard at Allahabad. If such a proviso did not exist, the Chief Justice would not have the power to pass such an order and if only the first proviso existed, the result would have been that all cases arising in such area in Oudh as the Chief Justice may direct had to be decided at Luck-now.

10. The view that I am taking does not result in the splitting up of the High Court. It is only providing a facility to the residents of Oudh. It does not affect the jurisdiction of the High Court but only provides the manner in which the jurisdiction would be exercised in cases arising in such area in Oudh as the Chief Justice may direct. I find support for my view from Saghir Ahmad v. Rex : AIR1949All190 , Hola Ram v. State : AIR1950All485 and Bisheshwar Nath v. State : AIR1954All28 , In M. A. Jalil v. Rex : AIR1952All550 it was held by a Division Bench sitting at Lucknow as follows:--

'Our reading of the Article''-- that is clause 14, 'is that in the scheme of the High Courts Amalgamation Order the New High Court is to consist of, so to say, two divisions, one division consisting of such Judges of the New High Court not less than two in number, as the Chief Justice may from time to time nominate, sitting at Lucknow in order to exercise jurisdiction and power vested in the New High Court in respect of cases arising in such areas in Oudh as the Chief Justice may direct and the other division consisting of the rest of the Judges of the High Court sitting at Allahabad exercising jurisdiction and power for the time being vested in the Court in respect of the whole of the United Provinces, except such areas in Oudh in respect of which jurisdiction and power is exercised by the first mentioned division.''

11. This decision also supports the view that I am taking. There is a difference between the exercise of the jurisdiction and the manner of the exercise of it. (See Rajwant Prasad Pande v. Ram Ratan Gir, AIR 1915 PC 99). In the present case the Amalgamation Order only provides that the manner of exercise of jurisdiction by the New High Court for cases arising in Oudh would be to entertain and decide them at Lucknow.

12. It is true that the view I am taking militates against the Full Bench decision of this Court in Union of India v. Chheda Lal Ram Autar : AIR1958All652 but with great respect to the learned Judges I am unable to agree because of the pressing impact of the first and the second provisos to Clause 14 of the Amalgamation Order on the main part of that Clause. I might have asked for the reconsideration of the Full Bench decision mentioned above, but I am of the opinion that the present cases can be disposed of on the basis of the decision on the second question posed earlier in this judgment.

13. The Amalgamation Order does not define what Oudh is. I must therefore, proceed on the footing that Oudh means that area of United Provinces which was under the jurisdiction of the Chief Court of Oudh. The question that requires consideration is what does the expression 'arising in..........Oudh' mean. The word 'arising' has also not been defined in the Amalgamation Order or in the General Clauses Act. It is not a term of art. The dictionary meaning of the word 'arise' amongst others is 'to spring up; to spring forth from its source to take its rise; originate.' (See Shorter Oxford English Dictionary Vol. I).

14. It has been contended that the words 'cases arising' mean where in a criminal matter the offence is committed and in a civil matter where the cause of action has ensued. I am unable to agree with it. The question of case or cases arising must have reference to the stage at which the High Court is to be seized of the case or cases. Clause 14 deals with the institution and decision of cases in the High Court. Therefore, irrespective of the question where the offence was committed or where the cause of action for a suit ensued, what has to be seen while interpreting the first proviso to Clause 14 is as to which are the cases that arise in Oudh for purposes of exercise of jurisdiction by the New High Court. It is trite that if a criminal case is transferred by the Supreme Court from a place in Bihar to a place in Uttar Pradesh for trial, the appellate court will be the Allahabad High Court and not the Patna High Court even though the offence might have been committed at a place in Bihar. Similarly if a civil case is transferred from a place in Punjab to a place in Uttar Pradesh, the appeal would lie to the Allahabad High Court and not to the Chandigarh High Court even though the cause of action for the suit may have ensued and the same may have been filed in a place there.

15. It is true that Rajeshwari Prasad, J. in Prem Singh v. State, 1968 All WR (HC) 8 has held that the ques tion of jurisdiction must be answered by a reference to an area in which the offence was committed and that if an offence was committed at Va Varanasi though the case relating to it was tried at Lucknow by the Special Judge, appeal would lie to the Allahabad Bench With great respect I am unable to agree. Mr. Shanti Bhushan, the learned Advocate General, also concedes that the decision is wrong. It is not possible to equate the expression 'cases arising.............in Oudh' with the expression 'where the offence was committed' or 'where the cause of action for the suit ensued' or 'where the suit was filed'. As said earlier the question as to where a case arises, that is in Oudh or outside it. would have to be determined on the basis of the stage of the case when the jurisdiction of the High Court is sought to be invoked.

16. Criminal Revisions Nos. 396 of 1966 and 316 of 1968 relate to a case which was tried at Luck -now by the Special Magistrate and the appeal was also heard at Lucknow by the Special Judge. In my opinion, therefore, for purposes of a revision application, the case must be held to have arisen in Oudh. The view that I am taking finds support from Baldeo Ram v. Deputy Commr. Gonda. : AIR1959All460 .

17. In single Judge decision of Boodan v. Asst. Custodian General, Evacuee Property : AIR1959All722 , Mukerji J., held that if the case originated in Meerut, but the final order was passed by an authority functioning at Lucknow, the writ petition could not be entertained by the Lucknow Bench. With great respect to the learned Judge, I am unable to agree. The learned single Judge has taken the view that 'arising......... in Oudh' mean the dispute cropping up originally in Oudh, an interpretation which does not appeal to me. I have already said earlier that for deciding as to where the case arises, not the place where the controversy originally originated would be material, but the place where the proceedings would culminate for invoking the jurisdiction of the High Court. In the referring order relating to the Criminal revisions, the learned Judges, who referred the cases to the Full Bench, have sought its opinion on the question as to whether in a case where auction is held at Meerut, but the Excise Commissioner, who passed the ultimate order sat at Lucknow, would the Lucknow Bench have the jurisdiction to entertain and decide the writ petition. In my opinion even such a case would 'arise in Oudh' for purposes of filing a writ petition in the Lucknow Bench. It is well settled that after a case has been disposed of by the appellate authority, the operative order is that of the appellate authority and not the original authority. (See Collector of Customs. Calcutta v. East India Commercial Co. Ltd.. : [1963]2SCR563 ,) The same principle would apply to a case where an order has been affirmed by the superior authority at Lucknow, because without such affirmance, the original order would be inoperative. In this view I find support from Collector of Central Excise. Allahabad v. V. D. Misra, 1963 All LJ 276. In my opinion, therefore, the criminal revisions are competent to be heard in the Lucknow Bench.

18. With regard to the special appeal the orders impugned were not passed by an authority located in an area falling in Oudh. The orders that were sought to be impugned were passed by the District Agriculture Officer, Azamgarh, and the Deputy Director of Agriculture. Gorakhpur. It is true that the State of Uttar Pradesh was also made a party to the writ petition, but admittedly it had passed no order. In my opinion, therefore, the writ petition could not be filed before the Lucknow Bench and was rightly dismissed by the learned single Judge.

19. The argument that the effect! of first proviso to Clause 14 is that there1 is no bar to cases arising in areas outside Oudh also being instituted and heard at Lucknow has not appealed to me for the simple reason that the effect of the first proviso is that the Judges sitting at Lucknow are to exercise jurisdiction and power of the High Court in respect of cases arising in Oudh only. It is true that the word ''only' has not been used after the words 'in order to exercise' and before the words 'in respect of cases arising in such area in Oudh', but that is the effect of the first proviso. The cases arising in Oudh have been treated to be a separate class and the function of the Judges sitting at Lucknow is to exercise jurisdiction of the New High Court in respect of those cases only.

20. It was also contended at the Bar that the second proviso gives the Chief Justice an unguided power and should for that reason be struck down. It is not necessary to go into that question in this case.

21. For the reasons mentioned above I would hold that the two criminal revisions can be heard by the Lucknow Bench and the writ petition was rightly dismissed on the ground that it could not be heard at Lucknow. I would direct the parties to bear their own costs.

Lakshmi Prasad, J.

22. I have had the advantage of going through the judgment of Brother Sahai, He has formulated two points for determination. But his decision in the instant case proceeds on the basis of the conclusion reached by him on the second point I entirely agree with the conclusion reached by him on t he second point and have nothing to add. As such, I concur in the order proposed by him.

23. However, I find, as is also clear from his judgment, that it is not necessary to decide the first point for the purposes of these cases. As such I do not express any opinion on that point.

Srivastava, J.

24. I have had the advantage of reading the judgments of Jagdish Sahai and Lakshmi Prasad, JJ. I am in entire agreement with Lakshmi Prasad, J. that it is not necessary to express any opinion on the first point discussed by Jagdish Sahai, J and therefore, I do not wish to express any opinion on that point. However, I agree with, the decision on the second point and have nothing to add with regard to that. I concur in the order proposed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //