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D. Mayavanshi Vs. K.S. Pawri and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1971CriLJ1391; (1971)GLR804
AppellantD. Mayavanshi
RespondentK.S. Pawri and ors.
Cases ReferredM. S. Sheriff v. State of Madras
Excerpt:
- - 1. this appeal raises an interesting question of law whether a single judge of this court could be deemed to be subordinate to the division bench of this court for the purpose envisaged in section 476 (b) of the criminal procedure code. 5. in order to find out whether this appeal is tenable before this division bench or not we will have to consider provisions of section 476-b of the criminal procedure code as well as section 195 of the said code, section 476-b of the criminal procedure code states- any person on whose application any civil, revenue or criminal court has refused to make a complaint under section 476 or section 476-a, or against whom such a complaint has been made, may appeal to the court to which such former court is subordinate within the meaning of section 195,.....ordera.a. dave, j.1. this appeal raises an interesting question of law whether a single judge of this court could be deemed to be subordinate to the division bench of this court for the purpose envisaged in section 476 (b) of the criminal procedure code. the facts giving rise to this appeal briefly stated are as under:-2. the present appellant joined the services in the state of gujarat on 1st july 1963 as a direct recruit to the post of police sub inspector. he was posted at junagadh and several other places. on 19th december, 1966, he was served with a charge sheet, dated 14th december, 1966. the charge under the said charge sheet was in respect of a private inland letter, dated 14th january 1965 alleged to have been written by the present appellant to his friend punjabhai. this letter.....
Judgment:
ORDER

A.A. Dave, J.

1. This appeal raises an interesting question of law whether a Single Judge of this Court could be deemed to be subordinate to the Division Bench of this Court for the purpose envisaged in Section 476 (B) of the Criminal Procedure Code. The facts giving rise to this appeal briefly stated are as under:-

2. The present appellant joined the services in the State of Gujarat on 1st July 1963 as a direct recruit to the post of Police Sub Inspector. He was posted at Junagadh and several other places. On 19th December, 1966, he was served with a charge sheet, dated 14th December, 1966. The charge under the said charge sheet was in respect of a private inland letter, dated 14th January 1965 alleged to have been written by the present appellant to his friend Punjabhai. This letter was sent to the Vigilence Commission which entrusted the inquiry to the C. I. D., Gujarat State. On the recommendation of the C. I. D., a departmental inquiry was held against the petitioner and ultimately, he was exonerated of the charge on 20th April 1967. The present appellant thereafter continued in service upto 27th January 1969 and was discharged from service. He, thereupon, filed a writ petition before this Court against the said order of discharge. In that writ petition, an affidavit was filed by the Inspector General of Police denying several averments made in the said writ petition. The said writ petition was dismissed by the Division Bench of this Court after hearing both the parties. Thereafter, the present appellant gave an application Under Section 476 of the Code of Criminal Procedure requesting the court, to make a complaint against the Inspector General of Police Under Sections 193 and 199 of the Indian Penal Code for making false statements in the affidavit filed in special civil application No. 1598 of 1969 (writ petition). The said application came up for admission hearing before our learned brother Thak-kar J , who, rejected the same in limine by his order, dated 27th August 1970.

3. Being aggrieved and dissatisfied by the said order, this appeal has been preferred to this Bench.

4. Miss K. U. Bhatt, learned advocate, holding the brief for Mr. C T. Daru for the appellant, submitted that the order of the learned Single Judge dismissing the petition summarily was not justified on the facts of this case. She urged that in her application, she had mentioned certain facts which prima facie disclosed that the Inspector General of Police had intentionally suppressed certain facts and thereby made a false statement before the Court. When the appeal came up for hearing, a preliminary objection was raised by Mr. Chhaya, learned Assistant Government Pleader on behalf of the State, respondent No. 2 that this appeal itself was not tenable. Mr. Chhaya urged that this was a criminal matter and that Clause 15 of the Letters Patent would not be applicable in the instant case. He also expressed a doubt whether a Single Judge of this Court can be considered to be subordinate to the Division Bench of this Court. On merits, he urged that there was absolutely no substance in the petition requesting the court to make a complaint against the Inspector General of Police. He urged that no useful purpose would be served by making a complaint against the Inspector General of Police because the impugned order was not passed by the present Inspector General of Police but it was passed by Mr. Imdadali who was the then Inspector General of Police of the Gujarat State. He submitted that the affidavit was filed by the Inspector General of Police in the writ petition from the record before him and looking to the averments made in the petition, it was not necessary for the Inspector General of Police to make any mention about the departmental inquiry which was held against the present appellant.

5. In order to find out whether this appeal is tenable before this Division Bench or not we will have to consider provisions of Section 476-B of the Criminal Procedure Code as well as Section 195 of the said Code, Section 476-B of the Criminal Procedure Code states-

Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint Under Section 476 or Section 476-A, or against whom such a complaint has been made, may appeal to the court to which such former court is subordinate within the meaning of Section 195, Sub-section (3), and the superior court may thereupon, after notice to the parties concerned, direct the 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.

Thus, under the provisions of Section 476-B, if the court in which original proceedings were taken did not think fit to make a complaint Under Section 476 or 476-A, it was within the jurisdiction of the superior court to make a complaint itself or direct the subordinate court to make a complaint. The next question which would then arise is to which court the petitioner should approach with a request to make a complaint. In this connection, we will have to refer to Section 195 of the Code of Criminal Procedure. The relevant portion is as under :-

195 (1)-No court shall take cognizance - (b) of any offence punishable under any of the following sections of the same code, namley, Sections 193, 194, 195. 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to any proceeding in any court, except on the complaint in writing of such court or of some other court to which such court is subordinate;

The present appellant had filed a petition requesting the court to make a complaint against the Inspector General of Police for making false statements, as envisaged in Sections 193 and 199 of the Indian Penal Code. Section 193 of the Indian Penal Code states-

Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine;

and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Section 199 states-

Whoever in any declaration made or subscribed by him, which declaration any court of justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.

6. The learned Advocate for the appellant submitted that when the Inspector General of Police filed the affidavit in court, he very well knew that the order of discharge was in fact made not because the present appellant could not be integrated in service or that there was no clear vacancy in the police department but that it was a colourable order made in order to remove him from service on the ground of unsuitability. She urged that the present Inspector General of Police who made the affidavit before court could have known from the record of the case as to what had transpired with regard to the appellant in the past. We may state at this stage that we do not want to enter into the merits of this case. The pertinent question which would arise for our consideration is whether the learned Single Judge who summarily rejected the petition had jurisdiction to do so and whether this Division Bench could hear an appeal from the order of a Single Judge. Taking into consideration the language used in Sections 195 and 476-B of the Criminal P.C. it is clear to us that the court to which such a petition for making a complaint against the Inspector General of Police could have been made was the very court which heard the special civil application that is - writ petition, filed by the present appellant. The words used are 'such court'. It means thecourt where the Inspector General of police is alleged to have made false statement of facts, in the proceedings which were before that court. Ordinarily, therefore, the original application Under Section 476 of the Criminal Procedure Code should have been placed before the same Division Bench which had heard the writ petition. However, it transpires that the office, through inadvertence, placed it for admission before a Single Judge, which came before our learned brother Thak-kar, J. who rejected the same. If the said matter had been placed before a Division Bench for admission and if it was rejected, then the only course open to the present appellant would be to file an appeal in the Supreme Court. But through mistake, the original petition was placed for admission before a Single Judge and if an order was passed by the learned Single Judge rejecting the said application, then the appeal against such an order as envisaged in Section 476-B of the Criminal Procedure Code, would certainly lie before a Division Bench of this Court. This point now is well settled by the Supreme Court in the case of Narain Das v. State of Uttar Pradesh : 1961CriLJ317 . It was observed that-

Any person aggrieved by an order of a court Under Section 476 of the Code may appeal in view of Section 476-B to the court to which the former court is subordinate within the meaning of Section 196 (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, or, 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 Court (Amalgamation) Order, 1948, It is true that the decision of a 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 subordination created by the provisions of Section 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 Court from 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.

It was urged by the learned Advocate for Narain Das that the order of the learned single Judge Under Section 476 did not amount to a decree and that therefore the provisions of Section 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 Section 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 Section 476-B. The forum of appeal is also determined by the provisions of Section 476-B read with Section 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.

On the facts before the Supreme Court, the Supreme Court returned the criminal appeal to the High Court of Judicature at Allahabad for being dealt with by a Division Bench of that court as the appeal was against the order passed by a Single Judge of that court. The Supreme Court held that the appeal did not lie to it and that it have to the High Court of Judicature at Allahabad. This decision therefore is clearly on the point that an appeal as envisaged in Section 476-B of the Code of Criminal Procedure could lie before a Division Bench of the same court against an order of a single Judge. The word 'subordinate' used in Section 476-B has been interpreted by the Supreme Court in the case of M. S. Sheriff v. State of Madras, reported in : [1954]1SCR1144 , wherein it was held that -

A right of appeal has been expressly conferred by Section 476-B provided there is a higher forum to which an appeal can be made; and the appellate forum has been designated in an artificial way. The appeal lies to the court to which the former court is subordinate within the meaning of Section 195 (3). But 'subordinate' does not bear its ordinary meaning. It is used as a term of art and has been given a special meaning by reason of the definition in Section 195 (3); a fiction has been imposed by the use of the word 'deemed'. Where the former court is a Division Bench of the High Court the only court to which an appeal ordinarily lies from the appealable decrees and sentences of a Division Bench of a High Court is the Supreme Court. Therefore, a Division Bench of High Court is a court 'subordinate' to the Supreme Court within the meaning of Section 195 (3);

Taking into consideration the ratio of the two cases referred to above it is very clear that if an order is passed by a single Judge of this Court Under Section 476 of the Criminal Procedure Code, the said order is appealable to the Division Bench of this Court Under Section 476-B thereof, and if an order is passed by a Division Bench of this Court, it is appealable to the Supreme Court only. In the instant case, through inadvertence, the application filed by the present appellant requesting the court to make a complaint against the Inspector General of Police, was placed for admission before a Single Judge of this Court The learned Judge who heard the application summarily rejected the same. It is, therefore, clear that this appeal before the Division Bench of this Court against the said order, is quite competent as observed by the Supreme Court in the cases referred to above.

7. Mr. Chhaya, learned Assistant Government Pleader urged that the order passed by the Single Judge rejecting the application was itself illegal as he had no jurisdiction to hear such an application. He, therefore, urged that the best course for the present appellant is to file a fresh application before a proper forum. We are unable to agree with the submissions made by Mr. Chhaya. In our opinion, the party should not suffer because of, technicalities. It was a mistake of the office in placing the case for admission before a single Judge. Apparently, the original writ petition was heard by the Division Bench of this Court. The said fact that it was heard by a Division Bench was mentioned in the application given by the present appellant seeking permission for filing a complaint against the Inspector General of Police. As the said application was not placed before a Division Bench which ought to have been placed there and if it is decided by a single Judge who had no jurisdiction to do so, ends of justice required that the said order passed by our learned brother is set aside and the original application is restored on file and sent back before a proper forum, for admission. It may be noted that the office made this error because of the contents of the application itself. The office was made to think that it was an application made under the Indian Penal Code. It was not properly shown in the application that the applicant wanted to proceed Under Section 476 of the Criminal Procedure Code. It would be in the interest of justice, therefore, to restore the status quo in the matter. Without expressing any opinion on merits, we therefore, allow this appeal and set aside the order of the learned Single Judge rejecting the application. The original application (Miscellaneous Criminal Application No. 310 of 1970) is restored on file. We direct that the said application be placed for admission before a Division Bench of this Court preferably the same Division Bench which decided special civil application No, 1598 of 1969.


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