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NaraIn Das Vs. the State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1961SC181; 1961CriLJ317; [1961]1SCR676
ActsConstitution of India - Articles 132 and 226; Code of Criminal Procedure (CrPC) , 1898 - Sections 476 and 476B; Indian Penal Code (IPC), 1860 - Sections 193 and 195(3); United Provinces High Courts (Amalgamation) Order, 1948
AppellantNaraIn Das
RespondentThe State of Uttar Pradesh
Cases ReferredM. S. Sheriff v. The State of Madras
Excerpt:
criminal - criminal procedure code, 1898 - section 476b - appeal lied in high court and not supreme court - [] the two questions for determination in this appeal were, (1) whether a settlement under s. 8a of the taxation of income (investigation commission) act, 1947 (30 of 1947) made after the commencement of the constitution was constitutionally valid and (2) whether the waiver of a fundamental right was permissible under the constitution. the appellant's case was on july 22, 1948, referred by the central government under s. 5(1) of the act to the investigation commission. for investigation and report. the commission directed the authorised official under s. 6 of the act to examine the appellant's accounts. he submitted his final report by the end of 1953. the commission considered..........within the local limits of whose jurisdiction such civil court is situate. the decrees of a single judge of the high court exercising civil jurisdiction are ordinarily appealable to the high court under clause 10 of the letters patent of the allahabad high court read with clause 13 of the united provinces high courts (amalgamation) order, 1948. it is true that the decision of single judge of the high court is as much a decision of the high court as the decision of the appellate bench hearing appeals against his decrees. but the court constituted by the single judge is a court subordinate to the appellate bench of the high court in view of the artificial judicial subordinate created by the provisions of s. 195(3) to the effect 'a court shall be deemed to be subordinate to the court.....
Judgment:

Raghubar Dayal, J.

1. Narain Das filed a civil writ petition under Art 226 of the Constitution in the High Court of Judicature at Allahabad. He subsequently moved an application under s. 476 of the Code of Criminal Procedure (hereinafter called the Code) for making a complaint under s. 193, Indian Penal Code, against Phanish Tripathi alleging that a certain statement in an affidavit filed by the latter was false. The learned Judge who heard this application holding that the appellant had not succeeded in showing that any portion of the affidavit of Tripathi filed on May 14, 1959, was false, dismissed the same. It is against this order of the learned Judge of the High Court that Narain Das has filed this memorandum of appeal under s. 476B of the Code. The Registry has submitted the memorandum of appeal with a report for determining the question whether the appeal is competent in this Court.

2. Section 476 of the Code is to be found in Ch. XXXV which is headed 'Proceedings in case of certain Offences Affecting the Administration of Justice.' Section 476 empowers any Civil, Revenue or Criminal Court when it of the opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in s. 195(1)(b) or (c) which appears to have been committed in or in relation to a proceeding before it, to file a complaint, after such inquiry as it thinks necessary, before a Magistrate of I Class having jurisdiction. It is clear that there where an offence referred to in s. 195(1)(b) or (c) is committed in or in relation to a proceeding in a Civil Court, an inquiry under s. 476 and the action taken on that inquiry by the Civil Court, are in relation to that proceeding itself.

3. Any person aggrieved by an order of a Court under s. 476 of the Code may appeal in view of s. 476B to the Court to which the former Court is subordinate within the meaning of s. 195(3), which provides that for the purposes of the section a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate. The decrees of a single Judge of the High Court exercising civil jurisdiction are ordinarily appealable to the High Court under clause 10 of the Letters Patent of the Allahabad High Court read with clause 13 of the United Provinces High Courts (Amalgamation) Order, 1948. It is true that the decision of single Judge of the High Court is as much a decision of the High Court as the decision of the appellate Bench hearing appeals against his decrees. But the Court constituted by the single Judge is a Court subordinate to the appellate Bench of the High Court in view of the artificial judicial subordinate created by the provisions of s. 195(3) to the effect 'a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees ....' In the case of a Civil Court which passes appealable decrees, that Court is deemed to be subordinate to the Court to which appeals ordinarily lie from its decrees. In the case of a civil of a Civil Court whose decrees no appeal ordinarily lies, that Court is deemed subordinate to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction the former Court is situate, even though normally such a Court will not be subordinate to the principal Court having ordinary original civil jurisdiction within whose local limits it is situate.

4. It was urged by the learned Advocate for Narain Das that the order of the learned single Judge under s. 476 did not amount to a decree and that therefore the provisions of s. 195(3) were not applicable. It is not necessary for us to express an opinion on the question whether the order of the learned single Judge under s. 476 is appealable under clause 10 of the Letters Patent or not. A right of appeal against that order is given by the provisions of s. 476 B. The forum of appeal is also determined by the provisions of s. 476B read with s. 195(3) and the only relevant consideration to determine the proper forum for an appeal against such an order of the single Judge is as to which Court the appeals against appealable decrees of the single Judge ordinarily lie. Such appeals lie to the High Court under clause 10 of the Letters Patent of the Allahabad High Court, and therefore this appeal lies to the High Court.

5. Learned counsel for the appellant relied on the decision of this Court in M. S. Sheriff v. The State of Madras : [1954]1SCR1144 , in support of his contention that an appeal under s. 476B lay to this Court from the decision of a single Judge of a High Court refusing to file a complaint under s. 476 of the Code. That case it distinguishable as the question considered in that case was whether an appeal lay to this Court under s. 476B of the Code from an order of a Division Bench of a High Court. It did not deal with the question whether an appeal lay to this Court under s. 476B of the Code from an order of a single Judge of the High Court. No appeal lies to the High Court against the decision of a Division Bench of the High Court and therefore an appeal under s. 476B from an order of the Division Bench of the High Court must lie to this Court.

6. The fact that an appeal lies to this Court from the order of a single Judge of the High Court where the High Court certifies, under Art. 132 of the Constitution, that the case involves a substantial question of law as to the interpretation of the Constitution, is of to assistance to the appellant's contention that this appeal is competent in this Court. It cannot be said that an appeal ordinarily lies to this Court from the judgment of a single Judge of a High Court because such an appeal lies with a certificate granted under Art. 132.

7. We therefore hold that the present appeal does not lies to this Court and that it lies to the High Court of Judicature at Allahabad. We therefore direct that the memorandum of appeal be returned for presentation to the proper Court.

8. Appeal incompetent.


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