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Hikmat Ullah Khan Vs. Musammat Sakina Begam and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in129Ind.Cas.264
AppellantHikmat Ullah Khan
RespondentMusammat Sakina Begam and ors.
Cases ReferredShama Charan Das v. Kasi Naik
Excerpt:
criminal procedure code (act v of 1898), section 476-b--complaint by appellate court--second appeal, competency of--mistake in heading of proceedings, effect of--penal code (act xlv of 1860), sections 209, 210--obtaining attachment for amount not due-- offence--complaint under section 210. - - 971 lays down that, where there was an application to execute a decree and an objection was made to the application to the effect that the decree had been satisfied by payment out of court and the application was, therefore, dismissed, then no complaint under section 210, indian penal code, would lie for making an application which was fraudulent......to be a first appeal from order made by one hikmat ullah khan against an order of the learned district judge of meerut, dated 3rd february, 1930, directing, under section 476-b, criminal procedure code, that a formal complaint under section 210, indian penal code, be made against the appellant hikmat ullah khan. a preliminary objection was taken that no appeal lies to this court.2. the facts are that the opposite party, musammat sakina begam and others, applied to the munsif for a complaint under section 476, criminal procedure cede, and the munsif refused to make a complaint. musammat sakina begum and others then appealed under section 476-b, criminal procedure code, to the district judge and he has made a complaint. the question is whether any appeal lies to this court from that.....
Judgment:

1. This purports to be a first appeal from order made by one Hikmat Ullah Khan against an order of the learned District Judge of Meerut, dated 3rd February, 1930, directing, under Section 476-B, Criminal Procedure Code, that a formal complaint under Section 210, Indian Penal Code, be made against the appellant Hikmat Ullah Khan. A preliminary objection was taken that no appeal lies to this Court.

2. The facts are that the opposite party, Musammat Sakina Begam and others, applied to the Munsif for a complaint under Section 476, Criminal Procedure Cede, and the Munsif refused to make a complaint. Musammat Sakina Begum and others then appealed under Section 476-B, Criminal Procedure Code, to the District Judge and he has made a complaint. The question is whether any appeal lies to this Court from that order of the District Judge making a complaint on an appeal to him under Section 476-B.

3. The learned Counsel for the appellant relied on a ruling of the Patna High Court reported in Ranjit Narain Singh v. Ram Bahadur Singh 94 Ind. Cas. 593 : 5 Pat. 262 : 7 P.L.T. 114 : A.I.R. 1926 Pat 81 : (1926) Pat. 89 : 27 Cr.L.J. 641 but there are rulings of no less than five High Courts to the effect that if an Appellate Court decides to make a complaint on appeal, no second appeal lies to the High Court. See Ahamadar Rahman v. Dwip Chand Chowdhury : AIR1928Cal281 ; Mohim Chandra Nath v. Emperor : AIR1929Cal172 ; Kanai Lal Saha v. Makhan Lal Saha 109 Ind. Cas. 211 : A.I.R. 1928 Cal. 172 : 33 C.W.N. 285 : 49 C.L.J. 342 : Ind. Rul. (1929) Cal. 237 : 47 C.L.J. 277 : 29 Cr.L.J. 485 : 10 A.I. Cr. R 216; Muhammad Idris v. Emperor 88 Ind. Cas. 528 : 6 L. 56 : A.I.R. 1925 Lah. 322 : 1 L.C 48 : 26 Cr.L.J. 1168 : 7 L.L.J 584; Ma On Khin v. N.K.M. Firm 105 Ind. Cas. 457 : 5 R. 523 : A.I.R. 1927 Rang. 313 : 28 Cr.L.J. 937 : 9 A.I.Cr.R. 104; Somabhai Vallavbhai v. Aditbhai Parshottam 81 Ind. Cas. 947 : 48 B. 401 : 26 Bom. L.R. 289 : A.I.R. 1924 Bom. 347 : 25 Cr.L.J. 1123; Moideen Rowthen v. Miyassa Pulavar 111 Ind. Cas. 114 : 51 M. 777 : A.I.R. 1928 Mad. 506 : 28 L.W. 134 : 29 Cr.L.J. 786 : 55 M.L.J. 444 : 10 A.I.Cr.R. 480 etc. etc. We are also of opinion that the natural construction to place on the words of the section in question, viz., 476B, is that only one appeal should lie and that, When an Appellate Court has made a complaint under this section or has refused to made a complaint, no further appeal should lie to the High Court. But it has been urged by the learned Counsel for the applicant that we should treat this matter as a revision. At first he contended that the Appellate Court had no jurisdiction to pass the order in question, because he argued that the Appellate Court acted as a Court of Session. The actual application to the lower Appellate Court was headed. 'In the Court of the District Judge of Meerut' and in the body of the application it was stated 'the appellant above-named appeals to the Court of the District and Sessions Judge, Meerut.' Apparently the office of the District Judge made the mistake of heading the proceedings as 'In the Court of the Sessions Judge of Meerut' and gave a number as 'Criminal Appeal No. 403 of 1929', but the learned District Judge himself subscribed his signature with the words 'District Judge' below it, and it is clear, therefore, that he acted as District Judge on appeal from an order of the Munsif and he had jurisdiction under Section 476-B.

4. It was next argued that, on the facts found by the District Judge, no criminal complaint would lie under Section 210, Criminal Procedure Code, and reference was made to Shama Charan Das v. Kasi Naik 23 C. 971. This argument was addressed to us under Section 115, Civil Procedure Code, as a Court of revision, and we proceed accordingly to consider this matter as a Court of revision. The ruling in Shama Charan Das v. Kasi Naik 23 C. 971 lays down that, where there was an application to execute a decree and an objection was made to the application to the effect that the decree had been satisfied by payment out of Court and the application was, therefore, dismissed, then no complaint under Section 210, Indian Penal Code, would lie for making an application which was fraudulent. But, in the present case, the facts are different, because on the application made by Hikmat Ullah there was an order of attachment passed against the property of Musammat Sakina Begam and her children. It was then that they made an objection and the order of attachment was set aside. Now, in execution there are two. proceedings, first attachment and then sale. We consider that the case would come under Section 210, because Hikmat Ullah did obtain an order of attachment against the property of Musammat Sakina Begam for a sum which was not due from her. The wording of Section 210 'whoever fraudulently obtains an order against any person for a sum not due' would accordingly apply. But, as the matter has been brought before us in revision, we think that a second section, Section 209, Indian Penal Code, ought to be added, and we direct that Section 209, Indian Penal Code, be also added to the complaint made by the District Judge to the Magistrate. Otherwise, we dismiss this appeal with costs.


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