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Samidurai Vs. Thangavelu Udayar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1966)2MLJ146
AppellantSamidurai
RespondentThangavelu Udayar
Cases ReferredKuldip Singh v. The State of Punjab
Excerpt:
- - 3609 of 1963 on the file of sub-divisional magistrate, vridhachalam one thangavelu, who is a well-to-do pattadar of perianesalur village, was proseuted by the station house officer, vepur, on a charge-sheet filed under section 353, indln penal code. the procedure adopted by the sub-magistrate in this case, is clearly irregular......thereafter, thangavelu, the accused, filed a petition g.m.p. no. 115 of 1964 under section 195, criminal procedure code, before the sub-magistrate, vridhachalam, alleging that the complaint which the village munsif, p.w. 1, samidurai gave to the' police about the assault and the rescue of the bull, was a false complaint, given with the intent to cause injury to him (thangavelu) and therefore a complaint might be filed against him by the court for the said offence against samidurai, the village munsif. the learned magistrate of vridhachalam dismissed this petition, holding that there was not sufficient evidence to prove that the respondent, the village munsif, had filed the complaint against thangavelu falsely and with intent to injure, and that the criminal case ended in acquittal,.....
Judgment:
ORDER

P. Ramakrishnan, J.

1. This revision case is directed against the order of the learned Sub-Divisional Magistrate, Ulundurpet, in C.A. No. 41 of 1964. The prior facts leading up to the order now under revision, are briefly the following. In C.C. No. 3609 of 1963 on the file of Sub-Divisional Magistrate, Vridhachalam one Thangavelu, who is a well-to-do pattadar of Perianesalur village, was proseuted by the Station House Officer, Vepur, on a charge-sheet filed under Section 353, Indln Penal Code. The. charge-sheet itself was filed after investigation was conducted by the Police on a complaint filed by P.W. 1 in that case, the Village Munsif of the village, who had alleged therein that when in puisuance of a demand for arrears of land revenue, he had distrained and attached a bull belonging to the accused, the latter had assaulted P.W. 4 the Talayari and rescued the bull from his custody. The learned Sub-Magistrate, Vridhachalam, acquitted the accused, giving sufficient reasons for finding that the prosecution case was not proved beyond reasonable doubt. Thereafter, Thangavelu, the accused, filed a petition G.M.P. No. 115 of 1964 under Section 195, Criminal Procedure Code, before the Sub-Magistrate, Vridhachalam, alleging that the complaint which the Village Munsif, P.W. 1, Samidurai gave to the' Police about the assault and the rescue of the bull, was a false complaint, given with the intent to cause injury to him (Thangavelu) and therefore a complaint might be filed against him by the Court for the said offence against Samidurai, the Village Munsif. The learned Magistrate of Vridhachalam dismissed this petition, holding that there was not sufficient evidence to prove that the respondent, the Village Munsif, had filed the complaint against Thangavelu falsely and with intent to injure, and that the criminal case ended in acquittal, mainly because the accused was given the benefit of reasonable doubt, and because the prosecution testimony was given by interested witnesses. Against this order, Thangavelu filed an appeal before the District Magistrate, South Arcot, under Section 476-B, Criminal Procedure Code, who, thereafter, transferred the case to the Sub-Divisional Magistrate, Ulundurpet, for disposal. The Sub-Divisional Magistrate after an analysis of the evidence, came to the conclusion that there was adequate material to hold that a charge under section an, Indian Penal Code, was supportable, and therefore reversed the order of the Sub-Magistrate and directed that a complaint under Section 211, Indian Penal Code, be filed in the proper Court, in the interests of justice. Against this decision Samidurai, the Village Munsif, the respondent in the lower Court, has filed this revision.

2. Learned Counsel, Sri Gopalaswami, appearing for the respondent in this revision case, the appellant in the Court below, argued on a preliminary point, that the learned District Magistrate, South Arcot, alone had jurisdiction under Section 476-B read with Section 195, Criminal Procedure Code, to dispose of the appeal made to him, and that the order transferring the appeal to the Sub-Divisional Magistrate, Ulundurpet, was without jurisdiction. I am of opinion that this contention is right. Section 476-B, Criminal Procedure Code, is a self-contained section, and it gives jurisdiction for disposal of an appeal against an order passed by a Court under Section 476 or 476-A, Criminal Procedure Code, only to the Court to which the first Court, is subordinate, within the meaning of Section 195(3), Criminal Procedure Code. Section 195(3) defines that a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie, from the appealable decrees or sentences of the former Court. To understand the scope of the term. ' appeals ordinarily lie one has to go to Section 407, Criminal Procedure Code, as amended, in Madras. Section 407(1) of the amended Act, states that a person convicted on trial held by any Magistrate of the Second or Third Class may appeal to the District Magistrate. The power of entertaining an appeal is thus conferred only on the District Magistrate, against the sentences passed by a Second or Third Class Magistrate. Section 407(2), Criminal Procedure Code, gives the District Magistrate the power to transfer appeals to a Magistrate of the First Class subordinate to him. But this power of transfer under Section 407(2), Criminal Procedure Code, cannot give jurisdiction to the Sub-Divisional Magistrate to deal with an appeal under Section 476-B, Criminal Procedure Code, because of the provision in Section 476-B, which specifically states that the superior Court indicated therein (which will be the District Magistrate's Court as explained above for the present case under revision) alone has jurisdiction to take the further steps outlined in Section 476-B, Criminal Procedure Code, namely, the giving of notice to the parties, directing the withdrawal of the complaint etc.' In other words, Section 476-B, Criminal Procedure Code, is a self-contained provision, in the matter of the appeals to which it refers, and Section 407(2), Criminal Procedure Code, to extend the jurisdiction under Section 476-B, Criminal Procedure Code, to a Sub-Divisional Magistrate.

3. An analogous situation was considered by the Supreme Court in Kuldip Singh v. The State of Punjab (1956) S.C.J. 387. where, in regard to certain proceedings, before a Subordinate Judge of the First Class, a complaint under Section 476-A, Criminal Procedure Code, was filed by the Senior Subordinate Judge. Against this complaint an appeal was made to the District Judge, who transferred it for disposal to the Additional District Judge. The Supreme Court held inter alia that the complaint filed by the Senior Subordinate Judge in regard to proceedings before the Subordinate Judge of the First Class, was irregular, but we are not now concerned with this part of the decision. The Supreme Court also held, that when the matter came in appeal before the District Judge, it was the latter who should, have passed appropriate orders either under Section 376-A, Criminal Procedure Code, or by sending it to the original Court, but instead he sent it to the Additional District Judge, who had no jurisdiction to act either under Section 476-A or Section 476-B, Criminal Procedure Code.

4. Here on the same view of the scope of Section 476, Criminal Procedure Code, if the District Magistrate felt that the order dismissing the petition by the Sub-Magistrate under Section 476-A was irregular, only the District Magistrate had the jurisdiction under Section 476-B, to decide to make the complaint, which the Sub-Magistrate ought to have made under Section 476-A; but the jurisdiction could not be delegated to the Sub-Divisional Magistrate. The procedure adopted by the Sub-Magistrate in this case, is clearly irregular. On this preliminary ground, this revision case has to be allowed. I therefore allow the revision case and direct the case to be disposed of by the District Magistrate, South Arcot, in accordance with law.

5. Learned Counsel for the petitioner urged that the alleged false' complaint of the Village Munsif, which led to the filing of a charge-sheet against Thangavelu, was filed as a piece of evidence during the trial of the case, that if the allegations about its falsity are true, then the Village Munsif must be considered to have intentionally fabricated false evidence for the purpose of being used in any stage of a judicial proceeding, that consequently Section 479-A, Criminal Procedure Code, would be attracted, and that therefore before any further steps could be taken against the Village Munsif in respect of fabricating a false complaint, the procedure, under Section 479-A, Criminal Procedure Code, should have been followed. But since that had not been done in this case, is will be another reason for vitiating the entire proceeding. Learned Counsel for the respondent on the other hand, contends that the alleged false complaint was given even before the police decided to file a charge-sheet, and that there is no question therefore, of a complaint having been intentionally fabricated, for the purpose of being used as evidence in a criminal case, and that in the above circumstances Section 479-A, Criminal Procedure Code, would not apply. But since the appeal itself is being remanded to the District Magistrate, South Arcot, for fresh disposal, no useful purpose will be served, if I were to give an opinion on this point, namely, whether the case is hit by Section 479-A, Criminal Procedure Code, or not. It will be for the District Magistrate to consider this ground of objection, if it is urged before him and if he finds there are any merits init. The revision is therefore allowed and the Criminal Appeal No. 41 of 1964 is remitted to the District Magistrate, South Arcot, for disposal in accordance with law.


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