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Haridas Saha Vs. Dulal Chandra Sadhukhan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1943Cal103
AppellantHaridas Saha
RespondentDulal Chandra Sadhukhan
Excerpt:
- .....the knowledge that they were forged were filed in court on 17th july 1936 in connexion with the review application of haridas saha. that review application had already been transferred to the court of the additional district judge and was pending in the court of the additional district judge on the date the documents were filed in court. the review application remained in the file of the additional district judge until disposed of, and that review application was never again in the file of the subordinate judge after it was transferred from that file on 8th july 1936. therefore it is argued that the proceedings in which the documents said to have been forged were used, were in the court of the additional district judge and not in the court of the subordinate judge of alipore. section.....
Judgment:

Lodge, J.

1. This rule was issued upon the District Magistrate of 24 Parganas and upon the opposite party to show cause why the order of the District Judge which purports to have been passed under Section 476B, Criminal P.C., and which directs that a complaint be made of offences under Sections 465, 465/109 and 471, Penal Code, should not be set aside. The material facts are as follows : The present petitioner Haridas Saha instituted a suit in the Court of the Subordinate Judge of Alipore in the year 1934 to set aside a certain revenue sale. That suit was heard by Mr. S.C. Chakravarty, an Additional Subordinate Judge of Alipore, and was : dismissed on 31st March 1936. On 25th May 1936, the present petitioner applied under Order 47, Rule 1, Civil P.C., for review of the decree dated 31st March 1936 on the ground of discovery of a new and important matter. Notice was issued under Order 47, Rule 4 by Mr. Chakravarty while still an Additional Subordinate Judge. Thereafter on some date between 24th June 1936 and 4th July 1936 Mr. Chakravarty was appointed Additional District Judge of Alipore. On 8th July 1936, the petitioner Haridas Saha applied to the District Judge for transfer of the review case instituted by him on 25th May 1936, to the; file of Mr. Chakravarty, Additional District Judge. The other parties to the review case gave their consent, and the review case was transferred to the file of Mr. Chakravarty as Additional District Judge.

2. On 17th July 1936 certain documents were filed in the Court of Mr. Chakravarty in that review case by a witness cited by the present petitioner Haridas Saha. When the documents were filed the learned Judge passed an order : 'Let them be kept with the record.' Subsequently, on 25th July 1936, the application for review was dismissed. In the meantime an appeal had been presented against the original decree by Haridas Saha to this Court. An application was made to this Court for permission to use the documents filed on 17th July in the review case as evidence in the appeal, and an order was obtained directing that these papers be printed as an appendix to the paper-book. On 18th March 1938, an order was passed by this Court to the effect that the application for permission to use these documents as evidence would be considered at the time of hearing of the appeal. The appeal was ultimately dismissed on 3rd December 1940 and the application to treat these documents as evidence was also dismissed on that date. On 22nd January 1941, an application was filed under Section 476, Criminal P.C., in the Court of the Additional Subordinate Judge of Alipore for a complaint to be made against the present petitioner Haridas Saha. The learned Subordinate Judge heard the parties, took evidence and refused the application by his order dated 30th August 1941. An appeal against that order was preferred to the District Judge under Section 476B, Criminal P.C., and on 22nd December 1941, the learned District Judge allowed the appeal and directed that a complaint be made.

3. The ground upon which this rule has been pressed before us was that the learned Subordinate Judge who refused the application under Section 476, Criminal P.C., on 30th August 1941, had no jurisdiction to entertain the application, and that the learned District Judge had no jurisdiction under Section 476B, Criminal P.C., to pass the order which he did pass on 22nd December 1941. It was pointed out by Mr. N.K. Basu, appearing for the petitioner, that the documents which were alleged to have been forged and used with the knowledge that they were forged were filed in Court on 17th July 1936 in connexion with the review application of Haridas Saha. That review application had already been transferred to the Court of the Additional District Judge and was pending in the Court of the Additional District Judge on the date the documents were filed in Court. The review application remained in the file of the Additional District Judge until disposed of, and that review application was never again in the file of the Subordinate Judge after it was transferred from that file on 8th July 1936. Therefore it is argued that the proceedings in which the documents said to have been forged were used, were in the Court of the Additional District Judge and not in the Court of the Subordinate Judge of Alipore. Section 195(1)(c), Criminal P.C., requires that when the offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, the complaint shall be made by such Court or by some other Court to which such Court is subordinate. It is argued that the Court entitled to make a complaint under Section 195(1)(c) was the Court of the Additional District Judge of Alipore and the Court to which that Court was subordinate. The Subordinate Judge of Alipore was neither the Court in which the proceedings were pending nor the Court to which such Court was subordinate. Therefore the Court of the Subordinate Judge had no jurisdiction to pass an order under Section 476, Criminal P.C. In our opinion this contention is sound.

4. The review case was pending in the Court of the Additional District Judge from before the date when these documents were used, and remained in the file of the Additional District Judge from then onwards until the review case was disposed of. Such being the case, in our opinion, the Court of the Additional District Judge was the proper Court to make a complaint under Section 476, Criminal P.C. The Court of the Subordinate Judge had no jurisdiction, and since the Court of the Subordinate Judge had no jurisdiction, the Court to which the Subordinate Judge was subordinate had no jurisdiction under Section 476B to make the complaint which the Court of the Subordinate Judge had no jurisdiction to make.

5. It has been suggested in argument that the District Judge had jurisdiction under Section 476 to make a complaint. This argument is based on the assumption that the Court of the District Judge and the Court of the Additional District Judge are one and the same. We are not satisfied on the materials on record that the Court of the District Judge is entitled to make a complaint under Section 476 in respect of proceedings which were pending in 1936 in the Court of the Additional District Judge of Alipore. We are inclined to hold that ordinarily speaking a District Judge is not entitled to complain in respect of proceedings before the Additional District Judge. On this view the learned District Judge had no jurisdiction under Section 476 to pass the order which he did pass on 22nd December 1941. Further, inasmuch as appeals from the Court of the Additional District Judge lie to this Court and not to the District Judge, the learned District Judge had also no jurisdiction under Section 476A, Criminal P.C., to make the order complained of. In the result, therefore, we hold that the order passed by the learned District Judge on 22nd December 1941, directing that a complaint be made against the present petitioner was made without jurisdiction and must, therefore, be set aside. If the opposite party considers it necessary that the present petitioner should be prosecuted for the offence alleged to have been committed by him he may make his application for such prosecution to the proper Court. The rule is made absolute. Let the records of this case be detained here till the disposal of the application under Section 476A, Criminal P.C., if any.

Mohamad Akram, J.

6. I agree.


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