1. The question has arisen on a rule issued by us to show cause why an order made under Section 476, Criminal Procedure Code, by the Assistant Settlement Officer in the Shahabad district should not be set aside, whether the Criminal Bench has jurisdiction to interfere with the orders of Civil and Revenue Courts made under that section. The rulings are very conflicting on the point and it seems necessary to have the matter settled by a Full Bench. The difficulty has been got over on more than one occasion by the appointment of a Special Bench by the Chief Justice to hear such applications, but it is obvious that this causes unnecessary delay and embarrassment to applicants, and there seems to be no reason why the matter should not be settled once for all.
2. Our own view of the matter in a recent case was that there was no question as regards the jurisdiction of the High Court in sanctions under Section 195. There it is expressly laid down that any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate, and in the case of an Assistant Settlement Officer the Special Judge would in the first instance deal with the matter, and in the event of its going further, the Civil Bench of the group to which the case belonged. It is the settled practice in this Court to treat cases under Section 195 by way of appeal, and no question as to the revisional powers of the Court or the powers under the Charter arises.
3. But under Section 476 the matter is on a wholly different footing. To begin with there is a conflict whether the High Court in dealing with orders under Section 476 acts under its revisional powers by virtue of Section 439 or whether it only interferes under Section 15 of the Charter. The most recent practice has been to discourage references from District Judges, on the ground that such orders could not be dealt with in revision, and District Judges have uniformly refused to refer such questions to us and have directed the aggrieved party to move this Court direct.
4. In a recent case a Civil Bench of this Court issued a rule against an order under Section 476 and directed the party to move the Criminal Bench for stay of criminal proceedings in the Magistrate's Court. This appeared to us to be the proper and reasonable procedure, assuming, as we did assume, for the purposes of that case, that this Court could only interfere with the Civil Court is order under the Charter or under Section 115, Civil Procedure Code. The rulings of this Court to which we desire to draw attention are:
5. The case of Kali Prosad Chatterjee v. Bhuban Mohini Dasi (1903) 8 C. W. N. 73 where it was held by Rampini and Handley JJ. that the Criminal Bench of the High Court has no authority to interfere under Section 439, Criminal Procedure Code, with the proceedings of a Munsif taken under Section 476, Criminal Procedure Code. The Civil Bench should be moved under Section 622 (now Section 115) of the Civil Procedure Code.
6. In taking this view the Judges no doubt relied on the cases of Eranholi Athan v. King-Emperor (1902) I.L.R. 26 Mad. 98 and In re Chennanagoud (1902) I.L.R. 26 Mad. 139; and the former case has since been overruled by a Full Bench of the Madras Court, in the case of Ottupura Naryanan Somayajipad v. Emperor (1909) I.L.R. 33 Mad. 48. The latter case of In Chennanagoud (1902) I.L.R. 26 Mad. 139 was a case under Section 195 and still holds good.
7. It was argued by Mr. Jackson for the petitioner that the Full Bench decision of the Madras Court in Eranholi's case (1903) 8 C. W. N. 73 having been overruled by the Special Bench in Ottupura's case (1909) I.L.R. 33 Mad. 48, the decision in Kali, Prosad's case (1903) 8 C. W. N. 73 was no longer binding on us. But the same learned Counsel recently pointed out to us the remarks of Jessel M. R. that authorities of reported cases could only be relied upon when they laid down certain principles which the Judges could follow, and the Judges of this Court do not say that they merely follow the rulings of the Madras Court but that they think the contention on which those rulings went is well founded. They, therefore, follow the principle, and that principle would therefore be binding on us if it be not overruled.
8. Now, in the very latest reported case on the subject in this Court In re Ram Prasad Malla (1909) I.L.R. 37 Calc. 13, the same principle has been re-affirmed, though in a different form. For it has been held that the High Court cannot take action under Section 476 in a case decided by a Judge of Small Causes, inasmuch as a Small Cause Court is not a Court subordinate to the High Court. In the same way a Settlement Officer's Court is not a Court subordinate to the High Court, except in so far as cases may come before it in Special Appeal from the Special Judge in certain proceedings under the Tenancy Act.
9. The case of Emperor v. Gopal Barik (1906) I.L.R. 34 Calc. 42 is in direct conflict with Kali Prosad's case (1903) 8 C. W. N. 73, inasmuch as the learned Judges (Mitra and Ormond JJ.) expressly dissent from Eranholi's case (1902) I.L.R. 26 Mad. 98 and follow the case which was overruled by the Madras Full Bench, viz., the case of Queen-Empress v. Srinivasalu Naidu (1898) I.L.R. 21 Mad. 124. They say the have not been referred to any case in this Court to the contrary, and Kali Prosad's case (1903) 8 C. W. N. 73 was not brought to their notice.
10. The case of Mahomed Bhakhu v. Queen-Empress (1896) I.L.R. 23 Calc. 532 treated the matter as one of doubt, but inasmuch as the Bench had the civil business of the Burdwan Group then in its hands and the case was transferred to it by the Chief Justice the question had not to be decided.
11. So too the case of Hem Chandra Ray v. Atal Behari Ray (1908) I.L.R. 35 Calc. 909 seems to leave the matter in greater doubt than ever, though some of the remarks of the Court, of which Rampini J. was a member, seem to conflict with the decision in Kali Prosad's case (1903) 8 C. W. N. 73. In a later case Dakhineswar Misra v. Haris Chundra Chatterji (1909) 10 C. L. J. 450 Mookerjee J. points out the conflict between the case of Kali Prasad Chatterjee v. Bhuhan Mohini Dasi (1903) 8 C. W. N. 73 and Hem Chandra Ray v. Atal Behari Ray (1908) I.L.R. 35 Calc. 909. But in the latter case the question was, as we have seen, left in doubt, so that we have really as far as this Court is concerned only to deal with the direct conflict between Kali Prasad's case (1903) 8 C. W. N. 73 and Emperor v. Gopal Barik (1906) I.L.R. 31 Calc. 42 and we think that this must be referred to a Full Bench inasmuch as in the former ruling the Criminal Bench declined jurisdiction even after the Chief Justice had made over the case to it by special order, apparent holding that as long as it was a Criminal Bench it had no jurisdiction and the only way it could get jurisdiction would be by a special order of the Chief Justice making the Bench a Special Bench for the disposal of this particular civil matter. The difficulty, therefore, cannot be altogether met by our making a reference to the Hon'ble the Chief Justice. We have been referred to the cases of In the matter of the Petition of Bhup Kunwar (1903) I.L.R. 26 All. 249 and Salig Ram v. Ramji Lal (1906) I.L.R. 28 All. 554 as also to a Full Bench of the Punjab Chief Court, Bishan Singh v. Amritsaria (1907) 7 Cr. L. J. 281 in which the latest view of the Madras Court has been affirmed.
12. In the Allahabad cases the view of this Court in Kali Prosad's case (1903) 8 C. W. N. 73 has been affirmed, though in the case of In re Bhup Kunwar (1903) I.L.R. 26 All. 249, Banerji J., differed from Sir John Stanley C.J., and Blair J; and the later case of Salig Ram v. Ramji Lal (1906) I.L.R. 28 All. 554 was under Section 195 and does not concern us.
13. Mr. Jackson relies on the judgments of Banerji J. in Bhup Kunwar's case (1903) I.L.R. 26 All. 249, upon that of Mitra and Ormond JJ. in Emperor v. Gopal Barik (1906) I.L.R. 31 Calc. 42 and on the comparison of authorities in the Punjab Chief Court. Mr. Or for the Crown relies on the ruling in Kali Prosad's case (1903) 8 C. W. N. 73 and the principles laid down in Eranholi's case (1902) I.L.R. 26 Mad. 98 and by the majority of the Allahabad Court in Bhup Kunwar's case (1903) I.L.R. 26 All. 249. Perhaps the arguments pro and con are best set out in the judgments of Stanley C.J. and Banerji J. in the latter case, and as they are there to be found in immediate juxtaposition it is convenient to refer to that ruling as setting out the conflict clearly and succinctly.
14. Speaking for myself I do not think that the question of whether the order under Section 476, Criminal Procedure Code, is or is not in the nature of a complaint has anything to do with the matter, and I strongly deprecate the introduction of Section 195, Civil Procedure Code, into the discussion at all.
15. The question seems to me to depend on the construction of Section 439, and as regards that I agree with the view expressed by Stanley C.J. I cannot see how Section 439 can be strained to include the proceedings of a Civil or Revenue Court. The Munsif or Revenue Officer by exercising his powers under Section 476 does not thereby make himself a Criminal Court. A Full Bench of this Court has held that proceedings under Chapter XII, Criminal Procedure Code, can only be dealt with under the Charter and not under Section 439. It therefore establishes the principle laid down by Stanley C.J. that Sections 435 to 439 mast, be read together and cannot be separated. The words 'any proceeding' occur in Section 435, exactly as they do in 439, and the exclusion of Chapter XII and certain other sections in Section 435 seems to exclude them equally from the operation of Section 439. In the sections as regards contempt of Court which immediately follow, Civil and Revenue Courts are given distinct criminal powers. Yet it is enacted that the appeal lies to the Court to which decrees or orders made in such Court are ordinarily appealable. Further it is said that the provisions of Ch. XXXI, that is, the chapter on appeals, shall apply so far as they are applicable to appeals under Section 486, but the law is silent as to revision under Chapter XXXII. Now it is clear that when acting under Section 476, the Civil and Revenue Courts are not exercising in any way such direct criminal powers as they are under Sections 480 to 484, and it appears therefore anomalous that the Criminal Bench of the High Court should have Revisional Jurisdiction under Section 4715 from Civil and Revenue Courts which is apparently excluded in the case of convictions for contempt.
16. The Civil Court has no power to punish under 476 and merely expresses its judicial opinion as a Civil Court that the offender has rendered himself liable to the jurisdiction of the Criminal Court. That judicial opinion is liable to revision by the High Court in its revisional powers under Section 115, Civil Procedure Code, and as Sir John Stanley says under that alone. There is, however, this decided conflict of opinion in all the Courts and Banerji J. points out that the same conflict has occurred in Bombay: Queen-Empress v. Rachappa (1888) I.L.R. 13 Bom. 109 and In re Bal Gangadhar Tilak (1902) I.L.R. 26 Bom. 785.
17. But we are only concerned with the decisions of this Court, and the questions therefore which we refer to the Full Bench are:
(i) Was the case of Kali Prosad Chatterjee v. Bhuban Mohini Dasi (1903) 8 C. W. N. 73 rightly decided? or
(ii) Was the case of Emperor v. Gopal Barik (1906) I.L.R. 34 Calc. 42 rightly decided?
(iii) Has the High Court revisional powers under Section 439, Criminal Procedure Code, in the case of orders passed by Civil and Revenue Courts under Section 476?
(iv) Can the High Court in the exercise of its Criminal Jurisdiction look into such orders under Section 15 of the Charter, or is Section 115, Civil Procedure Code, the only section under which such orders can be revised?
(v) If the latter, can the Bench exercising Criminal Jurisdiction deal with such matters under Section 115, Civil Procedure Code?
18. The question in this case is whether the propriety of an order of a subordinate Civil Court or a Revenue Court passed under Section 476 of the Code of Criminal Procedure, directing an enquiry into offences brought under its notice in the course of a judicial proceeding, can be considered by a Criminal Bench of this Court. There is a divergence of opinion among the Judges of this and other High Courts, and I agree with my learned brother in thinking that in the conflicting state of authorities on this subject a reference to a Pull Bench of this Court is necessary. The questions formulated cover all the aspects of the subject and I agree to the reference in their terms.
19. Whatever conflict there may be in the case-law, as to whether the High Court can, under Section 439, interfere with an order for prosecution passed under Section 476, it appears to me that the Act itself invests the Court with the fullest authority to deal with such an order as much as with any other order revisable by this Court. Prior to the passing of Act V of 1898, when the Code of 1882 was the law, no question was raised doubting the jurisdiction of this Court in exercising powers of revision over such orders. When the old Act was in force, in the case of Ishri Prasad v. Sham Lal (1885) I.L.R. 7 All. 871 Petheram C.J., and Straight J., pointed out the inconvenience of a Munsif or a Subordinate Judge ordering prosecution to have to be examined as a complainant, and it seems that the inconvenience pointed out in that case led to the insertion, in Section 476 of the amended Code of 1898, of the passage, 'and as if upon complaint made and recorded under Section 200.' Were it not for this amendment there would have been no room to doubt the jurisdiction of the High Court. It has been contended, but with little reason, that by this amendment an order under Section 476 ceases to be a proceeding and is a mere complaint which, when forwarded under the provisions of the section, is the basis of a cage in which the Magistrate has to proceed according to law and in the same manner as if a complaint bad been made and recorded under Section 200. It is clear from the amending passage in Section 476 that in order to facilitate the procedure of the Magistrate after the case has been sent to him the order is treated as analogous to a complaint. It does not mean, nor can it mean, that the order in itself is a complaint. It seems to me that the words 'as if' are important and ought not to be overlooked in construing the section. In the light of the amendment the proceedings before the Magistrate begin, as though cognizance had already been taken of the offence after complaint made and recorded and the case transferred to the Magistrate for trial. It therefore follows that a Court, Civil, Criminal or Revenue, is authorised under Section 476 to take cognizance of offences mentioned in Section 195 and a necessary corollary 10 this is that up to the stage of the case being sent on to a Magistrate, it is a criminal proceeding before the Court passing the order.
20. I venture to bold and urge it as a principle that a power once given cannot be withdrawn without express words of withdrawal, and if withdrawal is suggested, by implication, from a phrase or a passage introduced in an amendment intended to obviate difficulties of procedure of subordinate Courts, such a withdrawal of power of the High Court could never be the meaning of the law.
21. In cases reported prior to 1893, e.g., Khepu Nath Sikdar v. Grish Chunder Mukerjee (1889) I.L.R. 16 Calc. 730 and Chaudhari Mahomed Izharul Huq v. Queen-Empress (1892) I.L.R. 20 Calc. 349 the learned Judges who decided those cases held, and correctly so, that the High Court had full jurisdiction to deal with such orders for prosecution.
22. I have already submitted that the amending passage in Section 476 is not a withdrawal of the powers of the High Court, and in spite of the amendment the provisions of 439 remain intact. The terms of that section are very general and the expression 'any proceeding' is sufficiently extensive to embrace any and every order passed under the Code except such as arc* expressly excluded or are held to be so.
23. In Kali Prasad Chatterjee v. Bhuban Mohini Dasi (1903) 8 C. W. N. 73 Rampini and Handley JJ. referred with approval to the case of Eranholi Athan v. King Emperor (1902) I.L.R. 26 Mad. 98 in which a Full Bench of the Madras High Court held that, where a Court had taken action under Section 476 as a Court of Revision, the High Court had no power to interfere under Section 439, and that the reasons for the decision in Queen-Empress v. Srinivasalu Naidu (1898) I.L.R. 21 Mad. 124 were not applicable to the amended Code. This Full Bench decision of the Madras Court has however been reconsidered by another Full Bench of the same Court (1909) I.L.R. 33 Mad. 48 and has been overruled. The case that Rampini and Handley JJ, had before them, had no reference to an order for prosecution under Section 476 passed by a Magistrate, but was one in which a Munsif had passed the order. Thus whatever approval to Eranholi's case (1902) I.L.R. 26 Mad. 98 may be gathered from the judgment of those two learned Judges, it is not to be forgotten that for the purposes of that case they were not considering the effect of Section 439 in its relation to an order under Section 476 passed by a Magistrate.
24. I now proceed to consider whether the High Court in its Criminal Revisional Jurisdiction is empowered to revise an order for prosecution passed under Section 476 by a Civil or Revenue Court. Before I discuss or refer to any of the decided cases on the subject, I think it would be more useful to refer to the language of the law and derive such meaning as can be gathered therefrom. In dealing with the subject I may premise my remarks by referring to the preamble of the Act which lays down that the enactment is made because it is expedient to consolidate and amend the law relating to Criminal Procedure. Thus construing the Act from its preamble we have to hold that orders by even a Civil or Revenue Court under the provisions of the Act come within Criminal Procedure, and therefore, whatever ordinarily the Civil or Revenue functions of a Court may be, its orders under the Act remain to be governed by the provisions of the Act, and Section 4 (j) defines that a 'High Court' means the highest Court of Criminal Appeal or Revision. Chapter XXXII of the Act deals with matters of Reference and Revision, and to elucidate the point in question it is worthy of note that Section 435 deals with the calling of records from 'any inferior Criminal Court and Sections 436 to 438 deal with the examination of record under Section 435, which in other words limits us to the records of inferior Criminal Courts; but Section 439 is much more general and much more extensive in its comprehension and, without limiting the High Court to exercise its jurisdiction over the inferior Criminal Courts, allows it to deal with any proceeding, record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge. In this section no limitation has been placed as to the character of the Court against whose orders powers of revision have to be exercised, and as I have already drawn attention to the preamble of the Act, it follows as a sequence to legitimate interpretation that orders under Section 476 passed by a Civil or Revenue Court come within the scope of Section 439.
25. In the case of Bhup Kunwar (1903) I.L.R. 26 All. 249, Stanley, C.J., held that to understand the true scope of Section 439 it was necessary to consider the four preceding sections, and particularly Section 435, and that on a true interpretation of Section 439 it applied only to a proceeding such as was expressly mentioned in Section 435, namely, a proceeding before an inferior Criminal Court. I may be permitted to point out that, while Sections 436 to 438 by express words are governed by Section 435 the provisions of Section 439 have no such limitation on them. It is obvious that all reference to Section 435 has been left out from the words of Section 439 with an object, and that being that the judicial power of the highest Court of Justice should remain unfettered, It seems to me that Section 439 is not circumscribed by Section 435 to the exclusion of all other powers of revision and holds much more than Section 435 contemplates.
26. In Emperor v. Gopal Barik (1906) I.L.R. 34 Calc. 42 Mitra and Ormond JJ. held that the High Court had power under Section 439 to revise such orders whether passed by a Criminal or a Civil Court, although a contrary view of the law had been previously taken by Rampini and Handley JJ. in the case of Kali Prosad Chatterjee (1903) 8 C. W. N. 73, wherein they expressed their view that the Criminal Bench of the High Court had no authority to interfere under Section 439 with the proceedings of a Munsif taken under Section 476.
27. Further, it seems to me the jurisdiction of the Criminal Bench of this Court cannot be ousted once the proceedings under Section 476 have been forwarded to the Magistrate for inquiry into the alleged offence, for the High Court in its exercise of Criminal Jurisdiction, even if it be taken in its limited sense, can send for the record from the Court of the Magistrate and can proceed to consider whether the Magistrate should or should not go on with the trial of the case.
28. As regards the third question, whether the High Court in its Criminal Jurisdiction is empowered under Section 15 of the Charter to exercise superintendence over the Civil and Revenue Courts in respect of such orders, I sec nothing in the Charter to forbid it.
29. Dealing with whether Section 115, Civil Procedure Code, is the only provision of the law under which such orders by Civil Courts can be subjected to revision, I venture to rely on the views I have already expressed and I am persuaded to hold that such an order is revisable by the High Court under the Criminal Procedure Code, the Charter and the Civil Procedure Code alike.
30. I now take the last question, namely, is a Criminal Bench of this Court vested with powers of a Court of Civil Appeal; and can it revise such an order under Section 115 of the Code of Civil Procedure? The powers of a Judge of the High Court have not been limited by any legislative definition, and I venture to think that a Judge of this Court is inherently, by reason of his position as such, invested with civil and criminal powers alike, and in whatsoever Bench he may sit he is not divested of any of the powers that he, as a member of a Court of record, individually represents. The formation of Benches is governed by Sections 13 and 14 of the Charter. Under the latter section it is for the Chief Justice to determine what Judges of the Court shall constitute the several Division Courts, but that is merely an arrangement for convenience of administration of justice, as is laid down in Section 13 of the Charter. There are no words in Section 13 which derogate from the inherent powers of a Judge. In Hara Charan Mookerjee v. King-Emperor (1905) I.L.R. 32 Calc. 367 which was a case of an order for prosecution under Section 476 passed by a Munsif, Harington J. held that a Criminal Bench of this Court had jurisdiction to deal with the question under the powers vested in the Bench as a Court of Criminal appeal or a Court of Civil appeal, and Pargiter, J., held that as a Criminal Bench they had no jurisdiction to deal with the proceedings taken by Civil Courts under Section 476, but he, nevertheless, held that the Judges of the Criminal Bench could deal with the matter under Section 622, Civil Procedure Code (Section 115 of the new Code) in their Civil Jurisdiction. This case was decided after the case of Kali Prosad Chatterjee (1903) 8 C. W. N. 73 and though not disagreeing with it, Pargiter J. pointed out that their Civil Jurisdiction was exerciseable even though they were sitting in the Criminal Bench.
31. It will be a matter for future consideration whether the particular order now impugned should be set aside or not, regard being had to the terms of the answer given to this reference by the Full Bench.
32. Mr. S. P. Sinha (Babu Dasarathi Sanyal and Babu Manmatha Nath Mukerji with him), for the petitioner. There can be no question as to the power of the High Court to revise under Section 439 of the Criminal Procedure Code orders passed by Criminal Courts under Section 476.
33. Is that under Section 439 or the Charter?
34. I contend under Section 439.
35. The question now is---Can this Court interfere in orders passed by Civil or Revenue Courts under Section 476 of the Criminal Procedure Code? and, if so, whether the Civil Appellate or the Criminal Appellate side has jurisdiction? My contention is that when a Court proceeds under Section 476, the Court acts as a Criminal Court, whether it is a Civil, Revenue or a Criminal Court, and the Criminal Appellate side of the High Court has jurisdiction to interfere under Section 439.
36. What do the words 'may send the case' in Section 476 mean? Do you contend that the Court may send in its administrative capacity?
37. I contend that it is a judicial order under Section 476 Section 195 deals with the case where sanction is given by the Court to a private individual or a complaint is made by the Court as a private person. When a Court acts under Section 476, the Court does not act as a private person, and passes an order in its judicial capacity. It is a great deal more than merely sending records for action by another Court. It contemplates a procedure that cannot be availed of by a private person as a complainant: see also Section 478. In taking proceedings under Section 476 or 478, the Court has to consider whether it will complete enquiry itself, or send the case to the nearest Magistrate for enquiry. In Section 478, it is clear that the Court is not acting as a private person. That is so also in Section 476. Section 195 is different in this matter.
38. The words 'subject to the provisions of Section 476' in Section 200 do not mean that the Court makes a 'complaint' under Section 476. Those words were added by Act V of 1898 and only mean that in a case which is sent under Section 476 by any Court to a Magistrate for enquiry and trial, the Court which sends to the Magistrate need not be examined on oath.
39. Section 476 is totally independent of Section 195.
40. The question is whether an order made or proceeding taken under Section 476 is controllable by Section 489.
41. It has been argued that Section 439 is to be read with 435, when the former speaks of 'proceedings before any inferior Criminal Court.'
42. In Sections 436 to 438, reference is expressly made to Section 435. But in Section 439, there is no such reference to Section 435.
43. What do the words 'or otherwise' mean?
44. These words mean, perhaps---brought to its notice in some other way.
45. It may mean reference.
46. But reference only to the High Court is contemplated here. Reads Sections 432 to 434.
47. The words 'or otherwise' have been explained in Nobin Kristo Mookerjee v. Russick Lall Laha (1884) I.L.R. 10 Calc. 268, 272.
48. The omission of restricting clauses in Section 439, as there, are in Sections 436 to 438, shows that unlimited powers of revision by High Court was the intention of the Legislature. Why should we then think that Section 476 was excluded?
49. Then Section 145 would also come under Section 439. But in those cases we interfere under the Charter.
50. The answer to that is that having once distinctly excluded Section 145 from revision under Section 435, the generality of the terms of Section 439 could not extend its operation to cases under Section 145. Moreover, the question does not directly arise here except so far as the construction of Section 439 goes.
51. What powers does this Court exercise under Section 439 in a case under Section 476
52. The powers are conferred by Section 423(c). The other clauses of Section 423 and no other sections are applicable.
53. Section 423(c) speaks of an 'order'. You must therefore have an 'order' under Section 476 that has to be set aside. What is the nature of the 'order' here? Do you take it to be a 'sanction' or a 'complaint'?
54. It is neither. It is in the nature of a complaint, not exactly a 'complaint'.
55. The earliest Act is Act XXV of 1861. The Penal Code was passed in 1860, but it was to take effect from the 1st May 1861.
56. The Civil Procedure Code (XXIII of 1861), amending Act VIII of 1859, expressly lays down the procedure to be followed by Civil Courts in certain criminal offences: see Sections 16 to 22 and 43. The procedure remained the same in Act X of 1877 and even in Act XIV of 1882. This has been omitted in the Act of 1908.
57. The fact that though the Civil Procedure Code of 1861 preceded the Criminal Procedure Code of that year, it was not to have effect before the Criminal Procedure Code, showed that the Legislature regarded these matters as properly coming under the Criminal jurisdiction.
58. Sections 169 to 175 of the Criminal Procedure Code of 1861 deal with offences already dealt with in the Civil Procedure Code of that year.
59. The next Criminal Code was Act X of 1872. There also these matters were dealt with, as in the Act of 1861. Chapter XXXII dealt with con tempts of Court, and Chapter XXXV with prosecutions in certain. cases including perjury, forgery, etc. Section 468 dealt with offences against public justice. There the word used is 'sanction'. That was so in Sections 469 and 470. Section 471 dealt with action taken by a Court itself. That was so in Sections 474 and 475 also. In the Act of 1872, the sanction and proceeding were dealt with in the same chapter.
60. Notwithstanding conflict of cases in this Court, all cases lay down that such, matters are subject to revision.
61. Under what section? There is no doubt about our powers of revision.
62. All Courts agree in holding that it is an order which a Court passes under Section 476, and I contend it is subject to revision under Section 439.
63. The Court cannot recede after initiation of proceedings.
64. Where is the order in this case?
65. The order is 'I direct the prosecution of, etc.'
66. It is usual to have an order like the one we have here. But it is questioned whether such orders are strictly within the provisions of the law.
67. An order of commitment under Section 478 can be quashed by this Court by the special powers given by Section 215.
68. That is so, but I go further and contend that your Lordships may interfere even before a matter proceeds to the stage of commitment. The jurisdiction of the Civil or the Criminal Appellate Side is another question In the matter of Kali Prosunno Bagchee (1875) 23 W. R. Cr. 39, Section 471 was the corresponding section and this was before Revenue Courts were included by the Act of 1882.
69. Who issued the warrant in that case?
70. Evidently the Magistrate.
71. That was at a very late stage, and the case throws no light on your contention. It is really against you, as proceedings were not interfered with at the stage in which you wish it to be.
72. In the present case, the High Court left untouched the original order authorizing the Magistrate to issue warrant.
73. But the Court must find that the letter authorizing the Magistrate to take action was bad before it could quash the warrant. So the starting proceedings were really touched.
74. The case of Queen v. Baijoo Lall (1876) I.L.R. 1 Calc. 450 is directly in point. Here the order of the District Judge who initiated proceedings was directly considered by this Court: see also Jadu Nandan Singh v. Emperor (1909) I.L.R. 37 Calc. 250.
75. It has always been held that such proceedings initiating or directing prosecutions are orders: see Bahadur v. Eradatullah Mallick (1910) I.L.R. 37 Calc. 642 which was decided by a Special Bench. See also In the matter of Mutty hall Ghose (1880) I.L.R. 6 Calc. 308 Khepu Nath Sikdar v. Grish Chunder Mukerji (1889) I.L.R. 16 Calc 730 Chaudhari Mahomed Isharul Huq v. Queen-Empress (1892) I.L.R. 20 Calc. 349 Baperam Surma v. Gouri Nath Butt (1892) I.L.R. 20 Calc. 474 Mahomed Bhakhu v. Queen-Empress (1896) I.L.R. 23 Calc. 532. The last case is also authority for holding that in so far as it could be treated as an 'order,' this Court has jurisdiction to interfere. See the case of Hara Charan Mookerjee v. King Emperor (1905) I.L.R. 32 Calc. 367. Parts of the judgments in that case are no longer law. See also the case of Surjya Hariani v. King-Emperor (1901) 6 C. W. N. 295.
76. That was not a, case of jurisdiction to take proceedings under Section 476 pure and simple.
77. Emperor v. Gopal Barik (1906) I.L.R. 34 Calc. 42, 45 is also in our favour.
78. The general current of decisions supports our contention. Kali Prasad Ghatterjee v. Bhutan Mohini Basi (1903) 8 C. W. N. 73 is an exception.
79. Of the other cases referred to in one or other of the judgments in the Reference, Hem Chandra Ray v. Atal Behari Ray (1908) I.L.R. 35 Calc. 909 is a Civil Rule. It does not throw much light on the present question. Dakhineswar Misra v. Haris Ghundra Chatterji (1909) 10 C. L. J. 450 is also a Civil Rule, and it was questioned there whether the Civil or the Criminal Appellate Side of the High Court has jurisdiction to hear the High Court has jurisdiction to hear such applications. Queen-Empress v. Rachappa (1888) I.L.R. 13 Bom. 109 is distinguishable and the principle of the judgment was not accepted in In re Bat Gangadhar Tilak (1902) I.L.R. 26 Bom. 785 Queen-Empress v. Srinivasalu Naidu (1898) I.L.R. 21 Mad. 124 was overruled by Eranholi Athan v. King-Emperor (1902) I.L.R. 26 Mad. 98. The latter case is against us. In a still later Full Bench case in Madras, Ottupura Narayanan Somayajipad v. Emperor (1909) I.L.R. 33 Mad. 48 Rahim J. points out that Eranholi's case (1902) I.L.R. 26 Mad. 98 has been ignored in several later cases. The last Full Bench case (1909) I.L.R. 33 Mad. 48 practically overrules the previous cases. The Allahabad cases, In re Bhup Kunwar (1903) I.L.R. 26 All. 249 and Salig Bam v. Ramji Lal (1906) I.L.R. 28 All. 554 are against me, but the last case was one under Section 195.
80. It would be anomalous to hold that while the High Court has jurisdiction to revise orders passed by Criminal Courts under Section 476, it has none in Civil Courts taking action under that section; and the situation would be worse if it be held that there is jurisdiction in orders made by Revenue Courts, as Section 115 of the Civil Procedure Code has no application there.
81. But you have the Charter.
82. That is doubtful. Is a Revenue Court subject to the appellate jurisdiction of the High Court?
83. If we cannot interfere under the Charter, how can we under the Code?
84. The only way to avoid the anomaly would be to hold that the High Court has jurisdiction to interfere in proceedings taken by all Courts under Section 476.
85. It would be equally free from anomaly if we hold that these are not 'orders' at all.
86. That is so, but that would mean reversing a long current of decisions, and that is not the point referred to your Lordships.
87. But that necessarily arises: see Section 200. What is the meaning of the words 'subject to the provisions of Section 476' if the proceeding under Section 476 is not a complaint
88. That is only to guard against it being said that the Magistrate was making a 'complaint' in proceedings under Section 476 and protect him from an examination in Court as a complainant under Section 200. It gives effect to Ishri Prasad v. Sham Lal (1885) I.L.R. 7 All. 871.
89. See Section 537, Clauses (a) and (b). In those clauses two very different kinds of proceedings are mentioned in the same section. Tins implies that proceedings under Section 476 to which Clause (b) refers are as much subject to appeal or revision as those before the Magistrate to to which Clause (a) refers.
90. It was held in Abdullah Khan v. Emperor (1909) I.L.R. 37 Calc. 52 that preliminary enquiry under Section 476 is a judicial proceeding. My contention is that proceedings taken by any Court' under Section 476, be it Civil, Revenue or Criminal, are judicial proceedings. Section 115 of the Civil Procedure Code is much more restricted in scope than Section 439 of the Criminal Procedure Code.
91. As regards Section 145 proceedings, they are proceedings of an inferior Criminal Court and are directly covered by Section 435, Clause (3). The jurisdiction of this Court under the Code is expressly taken away.
92. Is it so? It merely says that they are not 'proceedings within the meaning' of Section 435. They may be proceedings under Section 479.
93. That may be so But such proceedings having once been excluded, under Section 435, is it likely that they would be included again in Section 439
94. So you read Section 439 as controlled by Section 435: see the definition of 'Criminal Courts' in Section 6.
95. That list is not exhaustive. A Civil or Revenue Court when taking action under Section 476, may be regarded a Criminal Court for particular purposes.
96. The Deputy Legal Remembrancer (Mr. Orr) (Babu Atulya Charan Basu with him), for the Crown. Section 476 was enacted to avoid the inconvenience of a Judge or Magistrate to appear in a Court as a complainant. The language and history of the section show that proceedings initiated under that section should be taken as a complaint.
97. Now, first, whether a proceeding under Section 476 is an order or a complaint: see Ishri Prasad v. Sham Lal (1885) I.L.R. 7 All. 871, 873 followed in Emperor v. Arjan Pramanik (1904) I.L.R. 31 Calc. 664 and Queen-Empress v. Rachappa (1888) I.L.R. 13 Bom. 109. See also Eranholi Athan v. King-Emperor (1902) I.L.R. 26 Mad. 98. Nearly all High Courts are agreed so far.
98. Next, on the question, whether the High Court in its criminal jurisdiction can revise an order under Section 439 unless the Court is subordinate to High Court in the criminal jurisdiction. The question is---Is the Civil or Revenue Court initiating proceedings under Section 476 subordinate to the High Court in its criminal jurisdiction? I contend it is not so. A Court also can hardly be called a Criminal Court merely by acting under Section 476: see Section 6 of the Criminal Procedure Code. Section 476 should be read with Section 435: see Salig Ram v. Ramji Lal (1906) I.L.R. 28 All. 554 per Knox J., In re Bhup Kunwar (1903) I.L.R. 26 All. 249 and Hari Dass Sanyal v. Saritulla (1888) I.L.R. 15 Calc. 608.
99. See Ramadhin Bania v. Sewbalak Singh (1910) I.L.R. 37 Calc. 714.
100. See also In re Ram Prasad Malla (1909) I.L.R. 37 Calc. 13, In re Chennanagoud (1902) I.L.R. 26 Mad. 139 and Kali Prosad Chatterjee v. Bhuban Mohini Dasi (1903) 8 C. W. N. 73. All these cases hold that Section 115 of the Civil Procedure Code is applicable in such cases.
101. Ottupura Narayanan Somayajipad v. Emperor (1909) I.L.R. 33 Mad. 48 clearly lays down that the Criminal Appellate Side has jurisdiction only when a Criminal Court has taken action under Section 476. This case read with Kali Prasad's case (8) makes it all clear. In Emperor v. Gopal Barik (1906) I.L.R. 34 Calc. 42 the order was the order of a Criminal Court and it is doubtful whether their Lordships decided definitely that this Court had powers over Courts other than Criminal Courts.
102. Is there any case in which this High Court has held that proceedings initiated by a Civil Court can be revised under Section 439 of the Criminal Procedure Code
103. Queen v. Baijoo Lall (1876) I.L.R. 1. Calc. 450 is the only case. But in that there is no reference to the section corresponding to Section 439 of the present Code.
104. The heading of the report shows it was the Criminal Side.
105. The actual decision was on the point of jurisdiction.
106. It was on the merits as to the preliminary enquiry, which it has been held should be gone into in revision.
107. See Mathura Sahu v. Damri Ram (1911) 15 C. L. J. 337. If it were a criminal matter, we would have been bound to refer the case to a third Judge tinder Section 429.
108. It has been the consistent practice in this Court to deal with such matters in the Civil or Criminal Side according as it comes from a Civil or a Criminal Court. Bahadur v. Eradatullah Mallick (1910) I.L.R. 37 Calc. 642 Bhagabat Prasad Singh v. King Emperor (1911) 14 C. L. J. 120 Begu Singh v. Emperor (1907) I.L.R. 34 Calc. 551. Most of the cases cited on the other side were decided on the question of jurisdiction.
109. On the point that certain sections have been omitted in the new Civil Procedure Code, my submission is that the omission was made to avoid repetition. It does not take away the jurisdiction of the civil side.
110. Who is to try on a remand by the Criminal Bench? And if Mr. Suiha is right, an order of a Judge sitting on the Original Side could be revised by the Criminal Bench of this Court.
111. Mr. Sinha, in reply. All relevant sections have to be read together. In Hari Bass Sanyal v. Saritulla (1888) I.L.R. 15 Calc. 608, 619 there was no question as to how far the powers conferred by Section 439 are or are not independent of the powers conferred by Section 435.
112. As regards the practice of this Court, there has been some variation both as regards Section 476 and Section 195. Convenience is all in favour of revision by the Criminal Bench. Treatment under Section 115 of the Civil Procedure Code and Section 439 of the Criminal Procedure Code would be different. The same principle of treatment should apply, in this matter, whether the proceedings were initiated by a Civil or a Criminal Court. The moment action is taken under Section 476 by a Civil Court, the Court is converted, so to say, to a Criminal Court, by virtue of its exercising powers conferred on it by the Criminal Procedure Code. The difficulty is---to what Criminal Court is such a Court inferior? My answer is that all Courts are inferior to the High Court, under the very constitution of this Court by the Letters Patent or the Charter. As regards the stage at which a Civil Court becomes a Criminal Court, I say that even if it be held to be no Criminal Court when it makes the preliminary enquiry, it is certainly so when it arrests the accused etc.
113. Then we shall have several Criminal Courts not contemplated by the Legislature.
114. That is so. Section 6 of the Criminal Procedure Code distinctly says so. Section 478(2) also shows that where a Munsif makes the inquiry himself, instead of sending the case to a Magistrate for it, he acts Criminal Court.
115. It is only under Sections 36 and 41 of the Criminal Procedure Code that Criminal Courts may be constituted.
116. Supposing the High Court revised under Section 215 an order passed under Section 478, it does so as a Criminal Court certainly.
117. But are not the records the records of a Civil Court?
118. When a Civil Court sends a case to a Criminal Court for action, undoubtedly it forms part of a record in a Civil Court, but the Criminal side of the High Court can send for the records of the case, and quash proceedings, or take other steps.
119. Shall we only look to the result of the initiation of proceedings? That would cause no anomaly.
120. But when you consider it, you can go to the very root of it all.
121. I have doubts about it.
122. As regards the remarks of Knox J. in Salig Ram v. Ramji Lal (1906) I.L.R. 28 All. 554 no such question can arise in proceedings under Section 476, as the order must be made by a 'Court' and in the course of a 'judicial proceeding.'
Cur adv. Vull
123. The judgment of the Court (Jenkins C.J., Harington, Stephen, Mookerjee and Holmwood JJ.) was as follows:
124. The questions referred for decision by a Full Bench have been framed in the following terms:
(i) Was the case of Kali Prasad Chatterjee v. Bhuban Mohini Dasi (1903) 8 C. W. N. 73 correctly decided?
(ii) Was the case of Emperor v. Gopal Barik (1906) I.L.R. 34 Calc. 42 rightly decided?
(iii) Has the High Court re visional powers under Section 439 of the Criminal Procedure Code in the case of orders passed by Civil and Revenue Courts under Section 476?
(iv) Can the High Court in the exercise of its Criminal Jurisdiction, look into such orders under Section 15 of the Charter, or, is Section 115 of the Civil Procedure Code the only section under which such orders can be revised?
(v) If the latter, can the Bench exercising Criminal Jurisdiction deal with such matters under Section 115 of the Civil Procedure Code?
125. The solution of these questions must depend primarily upon the true construction of Sections 439 and 476 of the Criminal Procedure Code?
126. Sub-section (1) of Section 476 provides that 'when any Civil, Criminal or Revenue Court is of opinion that there is ground for inquiring into any offence referred to in Section 195 and committed before it or brought under its notice in the course of a judicial proceeding, such Court, after making any preliminary enquiry that may be necessary, may send the case for enquiry or trial to the nearest Magistrate of the first class, and may send the accused in custody, or take sufficient security for his appearance before such Magistrate; and may bind over any person to appear and give evidence on such inquiry or trial.' On behalf of the petitioner it has been contended that when action is taken by a Civil Court under Section 476 the proceeding before it is a proceeding within the meaning of the first Sub-section either of Section 435 or of Section 439 of the Criminal Procedure Code. This argument, in each of its two branches, is, in our opinion, unsound. Sub-section (1) of Section 435 authorises this Court to call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its jurisdiction. When a Civil Court, subordinate to this Court, takes action under Section 476, it cannot plainly be deemed an inferior Criminal Court within the meaning of Sub-section (2) of Section 435. That section consequently has no application. Nor does Section 439 touch the matter. It is clear that Sections 435-439 must be read together as pointed out by Wilson J. in Hari Bass Sanyal v. Saritulla (1888) I.L.R. 15 Calc. 608, 617. Section 439 must, therefore, be read along with and subject to the provisions of Section 435. It follows that when an order has been made by a Civil Court under Section 476 of the Criminal Procedure Code it cannot be revised by this Court under Section 439. It is equally plain that the order may be revised by this Court under Section 115 of the Civil Procedure Code on any of the grounds mentioned therein, or may be examined under Section 15 of the High Courts Act.
127. When action is taken by a Criminal Court subordinate to this Court under Section 476 of the Criminal Procedure Code, the proceeding before it is obviously a proceeding before an inferior Criminal Court within the meaning of Section 435, and the order made therein is consequently liable to revision under Section 439.
128. When action is taken by a Revenue Court under Section 476, the proceeding before it is, for the reasons already assigned, not a proceeding before an inferior Criminal Court within the meaning of Section 435. Tire order made therein is accordingly not open to revision under Section 439 read with Section 435. But the order is open to revision under Section 115 of the Civil Procedure Code on any of the grounds mentioned therein, or under Section 15 of the High Courts Act, 24 and 25 Vict. Clause 104; the order is made by a revenue authority as a Court in the course of a judicial proceeding before it; with reference to such judicial proceeding, the Revenue Court is a Court subordinate to this Court within the meaning of Section 115 of the Civil Procedure Code, and is a Court subject to the Appellate Jurisdiction of this Court within the meaning of Section 15 of 24 and 25 Vict, Clause 104.
129. In view of this exposition of the law, the questions submitted to this Bench must be answered as follows:
(i) The case of Kali Prosad Chatterjee v. Bhuban Mohini Dasi (1903) 8 C. W. N. 73 was correctly decided, in so far as it held, that an order under Section 476 of the Criminal Procedure Code made by a Civil Court (in that case, the Court of a Munsif) cannot be revised by this Court under Section 439.
(ii) The case of Emperor v. Gopal Barik (1906) I.L.R. 34 Calc. 42 was correctly decided, in so far as it held that an order under Section 176 of the Criminal Procedure Code made by a Criminal Court (in that case, the Court of a Sub-divisional Magistrate) can be revised under Section 439.
(iii) In the case of an order passed under Section 476 by a Civil or a Revenue Court, Section 439 has no application.
(iv) In the case of an order passed by a Civil or Revenue Court under Section 476, the High Court can exercise the powers vested in it by Section 115 of the Civil Procedure Code or Section 15 of the High Courts Act.
(v) When an order under Section 476 made by a Civil or a Revenue Court is sought to be revised by this Court, the Bench exercising criminal jurisdiction cannot, as such, deal with the matter, but the Judges composing that Bench may do so, if authorised by the Chief Justice under Section 14 of the High Courts Act.
130. In the case before us, the order in question was made by a Settlement Officer dealing with proceedings under Chapter X of the Bengal Tenancy Act. His order is consequently not open to revision under Section 439 of the Criminal Procedure Code, but may be examined under Section 115 of the Civil Procedure Code or Section 15 of the High Courts Act. With this intimation of the opinion of the Court, the case is returned to the Referring Bench in order that it may be dealt with according to law.