1. This is a second revision by the. complainant arising out of a plea that the complaint filed by the Naib-Tahsildar Mawana, on 12-10-1978 under. Sections 193. 199, 200. 465, 467 and 471. I.P.C. was not entertainable being without jurisdiction. The Magistrate dismissed the objection but in revision the Additional Sessions Judge has allowed it holding that the complaint was not legal and proper and no Court could proceed on this complaint. Even so, instead of passing final orders he remanded the case to the Magistrate with a direction 'for re-hearing the arguments and then deciding the application of the accused in accordance with law'. The complainant has come up in second revision,
2. The brief relevant facts are that in a mutation case in the year 1969 the accused respondent Om Prakash made a statement that he did not possess more than 121/2 acres of land. The Sub-Divisional Officer went on to pass a mutation order on 30-9-1969. About four years latter the complainant Anup Singh moved an application under Section 476 old Cr. P.C. about the false evidence given by Om Prakash in the court of Naib Tahsildar as well as some tampering of the record by way of a cover up. The Naib Tahsildar after making enquiry on 18-7-1977 took the view that offences had been committed but directed the complainant himself to file a complaint. The complainant filed an appeal under Section 476-B Cr. P.C. (Old) and the Sub-Divisional Magistrate on 2-8-1977 directed the Naib-Tahsildar to file a complaint. This the Naib-Tahsildar did on 12-10-1977, After he was summoned the accused raised the objection regarding jurisdiction. The argument in brief is that the Sub-Divisional Magistrate's order directing the Naib-Tahsildar to file a complaint is illegal and without jurisdiction on two grounds (1). that in view of Section 479-A (6), Cr. P.C. it was not competent to the Court to take action under Section 476, Cr. P.C. four years after the decision of the case and (2) that in any case under Section 476-B the appellate Court could only file the complaint itself and could not direct the lower Court to file complaint.
3. I have heard learned Counsel for the parties at length on both the points involved. As regards the applicability of Section 479-A (6) to the proceeding under Section 476, Cr. P.C. learned Counsel for the respondent stressed that this could not be regarded a case where proceedings could not be taken under Section 479-A. This is because according to him the Tahsildar should be presumed to know the total land holding of the applicant for mutation on the basis of Tahsil records which were available to him. In any case the complainant had appeared in those proceedings and had an opportunity of bringing true facts to the notice of the Tahsildar and then action might have been taken under Section 479-A, Gr. P.C. The legal position that if action could have been taken under Section 479-A resort to Section 476 afterwards was not permissible does not seem to be open to doubt. I have, however, come to the conclusion that the question whether proceedings could be taken under Section 479-A against Om Prakash is not free from difficulty. Before the provision can apply the Court has to be of the opinion that the witness has intentionally given false evidence or fabricated false evidence. Where this feature has not been brought to the notice of the court and even the material giving rise to this inference is not on record it is hardly possible to say that the Court was or could be of the opinion that the person had given, or fabricated false evidence. It. would, therefore, follow that Section 479-A cannot be applied to cases where at the stage of delivery of, judgment the Court is not in a position to record any opinion about the perjury or fabrication of false evidence complained against for want of the relevant information. In such cases Section 476 would be available for proceeding against the accused when the matter comes to light. But apart from this : there is a more potent objection so far as this ground is concerned. This is really a plea in bar to the proceeding under Section 476, Cr. P.C. The essence of the objection is that in view of Section 479-A (6) no proceeding under Section 476 was entertainable. This objection should have been raised in the proceeding under Section 476, Cr. P.C. to which the respondent was a party. The decision dated 2-8-1977 of the Sub-Divisional Magistrate in which it was held that complaint should be lodged impliedly overrules the objection involved in this ground of attack. That decision was allowed to become final. It is not, in my opinion, open to the accused to go behind that order and re-agitate that ground of attack in the complaint.
4. We then come to the second ground. There is ample authority for the position that the correct procedure in an appeal under Section 476-B where the appellate Court comes to the conclusion that a complaint should be filed is to itself make the complaint as indeed stated in the. section itself. The relevant words run as under:.the superior Court may thereupon after notice to the parties concerned direct withdrawal of the complaint or as the case may be itself make the complaint which the subordinate Court might have made under Section 476 and if it makes such complaint the provisions of that section shall apply accordingly.
It has been held that the superior Court in an appeal under Section 476-B has ho power to remand the case for further enquiry (Mannilal v. Emperor AIR 1337 All 305 : 38 Cri LJ 561 (FB). It has also beep held that an order directing the lower court to make the complaint is also illegal V. T. Reddi v. D. Gangamrna AIR 1955 Mys 46 : 1955 Cri LJ 558. Ramchander v. State : AIR1968Pat122 which followed Manir Ahmad v. Jogesh Chandra : AIR1929Cal195 . The only contrary observation fairly brought to my notice by Sri R. K. Jain, learned Counsel for the respondent is in M.S. Rao v. Anantha Bhatta AIR 1959 Mys 153 : 1959 Cri LJ 744 in. which a single Judge of the Mysore High Court dittoed the following observations of Mudholkar, J. in V. Raghoji v. Emperor AIR 1933 Nag 487:
It seems to me to be plain from the words of Section 476-B, Cri. P.C. that the only powers which an appellate court has in an appeal from an order under Section 475 are to withdraw; a complaint or to make a complaint pr to direct the Court from whose order -the appeal had been preferred to make a; complaint. The only other provision which applies to an appeal under Section 476-B/is Section 423, Cr. C. P. As I have already said that section does not entitle the appellate court to pass an order of remand.
On this observation there should be nothing illegal in directing the lower Court to make the complaint. It must, however, be noted that the specific point whether the lower Court could be directed to file a complaint did not arise for decision nor was there any discussion or reason given and the observation is in the nature of an ipse dixit. Even so this is sufficient to show that the question is not wholly free from difficulty and controversy. It may, however, be taken that the preponderent view is that the appellate Court should itself file the complaint. This flaw would certainly have been rectified if either party had challenged the order of the Sub-Divisional Magistrate before a proper Court and pointed out the legal position. This, however, was not done and the parties allowed the order of the Sub-Divisional Magistrate to become final. In this situation, in my opinion, the main question that arises is not whether the Sub-Divisional Magistrate could have directed the filing of the complaint but whether the complaint filed in pursuance of such direction can be proceeded with Learned counsel for the respondent contends that it becomes a case of a complaint without jurisdiction. He relied upon certain observations in Ramzani v. State : AIR1960All350 in which a single Judge of this court characterised the order of the appellate court under Section 476-B in remanding the case as illegal and observed that all subsequent proceedings held by the Magistrate were null and void and that the illegal order of the Sessions Judge did not confer any jurisdiction upon the Magistrate. He has also referred to Kiran Singh v. Chamman Paswan : 1SCR117 to urge that the plea of jurisdiction could be set up at any stage and even in execution and collateral proceedings. The observations in Ramzani's case (supra) are distinguishable as having been made in a revision against the order for filing the complaint itself and really mean only that the fact that the order under Section 476-B remanding the case had become final did not preclude challenge to its legality when the final order of filing the complaint was attacked in revision before the High Court. That case can be of no help when the order of filing the complaint has become final and objection is sought to be raised before the Magistrate hearing the complaint. Similarly, Kiran Singh's case (supra) is of no assistance. The present is not a case of inherent lack of jurisdiction. In fact, properly analysed, the objection of the accused is not to the jurisdiction of the Magistrate but to the regularity of the procedure leading to the complaint which invoked that jurisdiction. Such objection about defects at earlier stages of the litigation have to be shut out on the preliminary ground that the stage for raising the same is past and the principle of res judicata bars their raking up at the present state,
5. There is a well settled distinction between a decision without jurisdiction and a merely erroneous decision. The former can be regarded as null and void while the latter co-effective until set aside and cannot be attacked in collateral or subsequent proceedings. Due to the frequent use of the overworked phrase 'without jurisdiction' which has many shades of meaning this distinction quite often gets blurred. This is because sometimes in case of direct challenge through appeal, revision etc., there is a tendenc to use the word 'without jurisdiction' as equivalent to unlawful and characterise any illegal decision or act as without jurisdiction. But every such illegality does not render the decision or act ineffective and if it is not got quashed in appropriate proceedings it operates as if it were valid. It is only, when the lack of jurisdiction goes to the root of the matter or what is sometimes spoken of as lack of inherent jurisdiction that the decision or the act can be treated as void and ineffective. The dividing line is not always clear and perhaps in the final analysis the determining fact is the, decree and nature of illegality which makes it a value judgment.
6. An order directing the subordinate court to file a complaint can at worst be regarded as an illegal order and not an order without jurisdiction in the strict sense discussed above that would render the order void. The observations of the Mysore case show that it is not a wholly untenable interpretation of Section 476-B, Cr. P.C. that such a direction is permissible. Again law does not attach too much importance to the form. The direction to file the complaint was given to a court which had the power to file a complaint on its own and which was also bound to carry out the orders of the appellate court. In the context of the findings recorded by the appellate court and the specification of the offences for which the complaint was to be filed the drafting and filing of the complaint became largely a formal affair. It can make no appreciable difference to the accused or anyone concerned whether the complaint is filed by the appellate court itself or by the lower court under the direction of the appellate court. Therefore, even if we take it that the appellate court's order was illegal, the illegality causes no prejudice to anyone and one who was a party to the order and allowed it to become final cannot be allowed to claim that the prosecution launched could not proceed. At the most the alleged flaw in the genesis of the complaint even if it can be examined is an irregularity not causing any failure of justice and, therefore, curable under Section 537, old Cr. P.C. corresponding to Section 465 of the new Cr. P.C.
7. In the result the revision succeeds and is allowed. The order of the Sessions Judge dated 31-3-1980 is set aside and the Magistrate's order restored.