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Banwari Lal Vs. Jhunka - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1926All229; 92Ind.Cas.454
AppellantBanwari Lal
RespondentJhunka
Cases ReferredEmperor v. Har Prasad Das
Excerpt:
criminal procedure code (act v of 1898), sections 439, 476, 476-b - civil procedure code (act v of 1908), section 115--order by civil court making or refusing to make complaint--appeal--revision, nature of. - - 5. i have, therefore, to consider whether the amendment of the code of criminal procedure has made the full bench ruling of this court no longer a good law. 6. section 176 of the old code as well as the corresponding section of the new code empowers any civil, criminal or revenue court to take steps mentioned therein......section 176 of the old code as well as the corresponding section of the new code empowers any civil, criminal or revenue court to take steps mentioned therein. it follows that merely because a court is taking proceedings under section 476 it cannot be supposed that court is necessarily a criminal court. a civil court exercising powers under section 476 remains a civil court. section 476 of the old code did not provide for any appeal from an order passed by the first court, but section 47 6-d provides an appeal from an order passed by any such civil, revenue or criminal court to a court to which such former court is subordinate within the meaning of section 195(3). then the superior court is defined in section 195(3) of the new code as being a court to which appeals ordinarily lie.....
Judgment:

Sulaiman, J.

1. This is an application in revision from an order passed on appeal directing the prosecution of the applicant under Sections 193 and 471 of the Indian Penal Code. The applicant filed a suit on the basis of a promissory note alleged to have been executed by the defendant and also produced a receipt purporting to be of the same date. The defendant denied the genuineness of these documents and denied that he had ever borrowed any money from the plaintiff. The promissory note and receipt were sent to the thumb-impression expert at the instance of the plaintiff, but the report received from the expert was that the impressions were too blurred to be decipherable. The plaintiff then stated before the Court that if the defendant took an oath on the Ganges water that he had not borrowed the money from the plaintiff he would agree to the suit being dismissed. The defendant agreed to take the oath. On the oath being taken by the defendant the Court without going into any further evidence dismissed the suit, Neither the plaintiff nor any witnesses on his behalf were examined. After the dismissal of the suit the defendant applied to the trial Court for proceedings being taken against the plaintiff under Section 193 and Section 471 of the Indian Penal Code, inasmuch as he had verified the plaint and filed documents which were said to be forged. The trial Court declined to pass any such order. On appeal the learned Judge has reversed the order,

2. As the case would be merely one of oath against oath without any conclusive documentary evidence to prove that the pro note and the receipt were forgeries I might have been inclined to interfere in revision on the criminal side if the application were, as it purports to be, under Section 439 of the Code of Criminal Procedure. On the other hand if this is a proceeding of a civil nature and my power of revision is confined to the provisions of Section 115 of the Code of Civil Procedure I would find it absolutely impossible to interfere, as there is neither any want of jurisdiction nor any irregularity nor illegality in the exercise of jurisdiction.

3. I have, therefore, to consider whether a revision from an order passed under Section 476-B by the superior Court relates to a proceeding within the meaning of Section 439 of the Code of Criminal Procedure.

4. Under the old Code a Full Bench of this Court in the matter of the petition of Bhup Kunwar, In the matter of (1904) 26 All 249, overruling several previous cases held, 'where an order is passed under Section 476 by a civil Court, the case does not fall under Section 439 of the Code of Criminal Procedure and the High Court has no power of interference in revision.' After some years a Full Bench of the Calcutta High Court came round to the same opinion in the case of Emperor v. Har Prasad Das (1913) 40 Cal 477. There it was held that Section 439 of the Code of Criminal Procedure was inapplicable to a case where a civil or revenue Court had passed an order under Section 476. The Full Bench case had of course been followed by this Court till the Code was amended. The amended Code has made certain alterations in Sections 195, 476, 439 and 537. A criminal Revision No. 428 of 1924 came up before Mukerji, J., who considered the question to be of some importance and referred it to a larger Bench. It appears that in the course of the argument he was informed that the general opinion now held is that the earlier view of this Court required reconsideration. I am not aware of the extent to which such opinion is held. The learned Judge suggested that the point required reconsideration in view of the fact that under Section 476-D an appeal is now allowed. The Bench before which the case went up, however, did not decide this question, but dismissed the application on the merits.

5. I have, therefore, to consider whether the amendment of the Code of Criminal Procedure has made the Full Bench ruling of this Court no longer a good law.

6. Section 176 of the old Code as well as the corresponding section of the new Code empowers any civil, criminal or revenue Court to take steps mentioned therein. It follows that merely because a Court is taking proceedings under Section 476 it cannot be supposed that Court is necessarily a criminal Court. A civil Court exercising powers under Section 476 remains a civil Court. Section 476 of the old Code did not provide for any appeal from an order passed by the first Court, but Section 47 6-D provides an appeal from an order passed by any such civil, revenue or criminal Court to a Court to which such former Court is subordinate within the meaning of Section 195(3). Then the superior Court is defined in Section 195(3) of the new Code as being a 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 the principal Court having ordinary original civil jurisdiction. It follows, therefore, that the superior Court to which appeals ordinarily lie and which is empowered under Section 476-B to hear an appeal cannot necessarily be deemed to be a criminal Court. It can continue to be a civil Court if it is in fact a civil Court.

7. Section 435 of the Code of Criminal Procedure empowers the High Court to call for the record of any inferior criminal Court, but it does not empower the High Court to call for the record of any civil or revenue Court. It cannot therefore be contended for a moment that the record of the superior Court under Section 476-D can be called for by the High Court under Section 435. It must, however, be noted that Section 439 is slightly wider in scope and covers cases where the record of proceeding has been called for by the High Court or which has been reported for orders or which otherwise comes to its knowledge. Even under the old Code some learned Judges interfered with an order passed under Section 145 of the Code although under Section 435(3) the record of that case could not be called for. It would seem that the High Court, therefore, may interfere in revision under Section 439 even if it has not been empowered to call for the record under Section 435. But the view taken by the Full Bench of this Court referred to above was that Section 435-439 must be read together and that the word 'proceeding' mentioned in Section 439 meant the same proceeding as is mentioned in Section 435. It may be that the word 'proceeding' in Section 439 may mean the proceeding in any criminal Court referred to in Section 435 or it may possibly mean any proceeding to which the Code of Criminal Procedure is applicable. If the latter meaning were to be assumed perhaps the power of revision of the High Court might be wider, but the Full Bench accepted the view that the word 'proceeding' meant proceeding in any criminal Court and not necessarily any proceeding referred to in the Code of Criminal Procedure. I am bound to follow that view and I see nothing in the amended Code which can alter the effect of that Full Bench ruling. The mere fact that now an appeal is provided to a superior Court cannot make that Court a criminal Court nor can it make the proceeding before that superior Court one which can be interfered with under Section 439.

8. Under the old Code there was one difficulty in the way of the view expressed by the Full Bench, namely that Section 537(b) assumed that a High Court could interfere on appeal or revision in cases of an irregularity in proceedings taken under Section 195 or Section 476. The Full Bench, however, took the view that must refer to proceedings under Section 476 before a criminal Court. No such difficulty now arises before me. Sub-clause (b) of Section 537 has altogether been deleted in the new Section 537. It is further to be noted that even in the old Code there was no mention of Section 476 in the old Section 439 but there was a mention of Section 195. In the corresponding section of the new Code even the mention of Section 195 has now been omitted. It is further clear that the substantial effect of an order under Section 476 is the filing of a complaint on behalf of the Court before a Magistrate; when an order is to be revised it would mean not only an order superseding the order of the lower Court but also an order directing the withdrawal of that complaint. S, 431 does not expressly empower the High Court to direct the withdrawal of a complaint which might have been filed by a subordinate Court. It is confined to the powers which are conferred on a Court of appeal by Sections 423, 426, 427, 428 or 438.

9. It therefore seems to me that the amendment of the Code of Criminal Procedure has strengthened the view of the Full Bench rather than weakened it, I am accordingly of opinion that I have no power of interference on the criminal side.

10. The learned Counsel for the applicant has urged before me that I should exercise the power of superintendence conferred on the High Court under Section 107 of the Government of India Act. I doubt very much whether the word 'superintendence' could have been intended to mean the same thing as revision. I however consider it unnecessary to decide whether the word 'superintendence' is used in an administrative sense or not. I do not think that this is a case in which an extraordinary power of the High Court, even if it were vested in it, should be exercised.

11. The application is accordingly dismissed.


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