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Chandra Kumar Home and ors. Vs. Gopi Nath Kar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal463
AppellantChandra Kumar Home and ors.
RespondentGopi Nath Kar
Cases ReferredLal Mahammad v. Deputy Inspector General of Police
Excerpt:
- .....others had tampered with the application after it was filed. they prayed that the munsif should make a complaint against these persons. the munsif held a preliminary enquiry and rejected this application under section 476 holding that there was no case for prosecution. thereupon an appeal was made to the district judge of mymensingh and it was transferred by him for hearing to the subordinate judge, babu mayataru haider. the subordinate judge reversed the order of the munsif and made a complaint to the sub-divisional magistrate, mymensingh against the petitioner under section 192, penal code.2. the principal point urged in connexion with this rule is that the subordinate judge had no jurisdiction to hear the appeal under section 476, criminal p.c., inasmuch as under the provisions of.....
Judgment:

Jack, J.

1. This rule was issued calling upon the District Magistrate of Mymensingh and also upon the opposite party to show cause why an order of the Subordinate Judge under Section 476, Criminal P.C. making a complaint against the petitioner to the Sub-divisional Magistrate under Section 192, Penal Code, and reversing the order of the Munsif should not be set aside on the grounds that the order of the learned Subordinate Judge was illegal and could not be sustained in that the learned Subordinate Judge had no jurisdiction to hear the appeal from the order of the Munsif and make the complaint. The alleged offence arose in connexion with an application in a money execution ease in the Court of the 4th Munsif, Netrokona. There was an alteration made in this application filed before the Munsif and subsequently the opposite party suspected that the decree-holder and the clerk of the pleader, who is the present petitioner, and others had tampered with the application after it was filed. They prayed that the Munsif should make a complaint against these persons. The Munsif held a preliminary enquiry and rejected this application under Section 476 holding that there was no case for prosecution. Thereupon an appeal was made to the District Judge of Mymensingh and it was transferred by him for hearing to the Subordinate Judge, Babu Mayataru Haider. The Subordinate Judge reversed the order of the Munsif and made a complaint to the Sub-divisional Magistrate, Mymensingh against the petitioner under Section 192, Penal Code.

2. The principal point urged in connexion with this rule is that the Subordinate Judge had no jurisdiction to hear the appeal under Section 476, Criminal P.C., inasmuch as under the provisions of that section an appeal is to be made to the Court to which the Court which refused to make the complaint is subordinate within the meaning of Section 195 (3). In this case there can be no doubt that the Court of the District Judge is the Court to which the Munsif's Court is subordinate and therefore the appeal was quite rightly made to the District Judge. But it is asserted that the District Judge had no jurisdiction to transfer the appeal for hearing to the Subordinate Judge. The transfer was made under the provisions of Section 22, Civil Courts Act which lays down that a District Judge may transfer to any Subordinate Judge under his administrative control any appeal from the decrees or orders of Munsifs pending before him.

3. It is contended that the order of the Munsif refusing to file a complaint is not such an order as referred to in Section 22, Civil Courts Act. In support of this we have been referred to some decisions of the Allahabad High Court in which it was held that Section 24 (1) (a), Civil P. C, or Section 22, Civil Courts Act, does not authorise the transfer to a Subordinate Judge of an appeal from an order of Munsif under Section 476, Criminal P.C. This was held in Manphool v. Budhu : AIR1935All440 and also in Shiva Prosad v. Prahlad Singh : AIR1935All696 . It was held in the latter case that an indication as to what an order connotes could, to some extent, be gathered from the definition of 'order' in Section 2, Sub-section 14, Civil P.C. by way of analogy and the learned Judges held that it was not an order because it did not decide any matter finally against the person against whom the complaint was made nor was there any adjudication of any rights of the parties. 'With all due respect to the learned Judges who decided this case, it appears to me that the Court in passing this order did decide as to rights of the parties, for the Munsif decided that they were not entitled to the complaint. There seems to be no reason to limit the meaning of the word 'orders' in Section 22, Civil Courts Act so as to exclude an order of this kind. In another decision of the Allahabad High Court, Karimullah v. Rameshwar : AIR1929All774 , it was held that a complaint by the Munsif did amount to an order within the meaning of Section 22, Civil Courts Act and the same view was held in this Court in Ram Charan Chanda Talukdar v. Tiruppulla Sheikh (1912) 39 Cal 774, although, as the law then stood, according to the provisions of Section 195(6), a Subordinate Judge could not hear an appeal under Section 476. The same view was also held in Lal Mahammad v. Deputy Inspector General of Police : AIR1930Cal361 . Accordingly, there appears to be no substance in the objection that the order of the Subordinate Judge was without jurisdiction on this ground.

4. The only other point raised was that the Subordinate Judge had no jurisdiction to forward the complaint as he did to a Magistrate who had no jurisdiction to try the case. Under the law, a Subordinate Judge is only entitled to forward a com plaint to a Magistrate who has jurisdiction. In the present case, the Subordinate Judge has forwarded the complaint to the Sub-divisional Officer, Mymensingh. This part of the order must be set aside and the complaint should be forwarded to the Sub-divisional Officer, Netrokona. Apart from this modification in the order, this rule is discharged. Another rule was issued by this Court upon Kasi Nath Pal and his officer Surendra Chandra Sharkar to show cause why an order for prosecution against them should not be made. Kasi Nath Pal was the decree-holder in the execution proceedings out of which this case arose and the rule was issued as it appeared to the Court that they were implicated in the tampering with an application out of which the complaint arose. We think that there as no need to make this Rule absolute inasmuch as it is open to the Magistrate who hears the complaint to proceed against these persons if there is evidence that they have been guilty of any offence under Section 192, I.P.C., or any other section in connexion with the same transaction. This Rule is accordingly discharged. We make no order as to costs.

Henderson, J.

5. I agree. If the rejection of the application filed by the opposite party or the refusal of the Munsif to make a complaint is not an order, I do not know what it is. Indeed, in the course of the judgment just delivered, my learned brother referred not only to the order of the Munsif but also to the order of the Subordinate Judge and I very much doubt whether it would be possible to find a more suitable expression. The Munsif actually reached a decision. He did not merely make a pious expression of his opinion. The result of his decision was that apart from any interference by the lower Appellate Court the prosecution of the petitioner was stifled. Nor would I be prepared to say that this matter is not within the terms of the definition of 'order' in the Civil P.C.


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