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Kanai Lal Saha Vs. Makhan Lal Saha and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1928Cal237
AppellantKanai Lal Saha
RespondentMakhan Lal Saha and anr.
Excerpt:
- .....by the order of the district judge transferred to the court of the first munsif of goalundo. that learned munsif of goalundo when the matter came before him under section 476, criminal p.c., refused to direct a complaint to be made on the view that he had no jurisdiction in the matter, he not being the court referred to in section 476 in respect that the alleged offence had not been committed in or in relation to a proceeding in his own court but had been committed, if at all, in relation to proceeding in the court of the second munsif of goalundo who had tried the case. that being his view the learned first munsif thought that he had no jurisdiction.3. an appeal was taken to the district judge under section 476-b, and the first thing that the learned judge had to decide was whether the.....
Judgment:

Rankin, C.J.

1. In this case the learned District Judge of Faridpur has made an order directing that a complaint should be made against the appellant for an offence under Section 195(i)(c), Criminal P.C., in respect that he forged a receipt and used that document in evidence in a, certain suit before the Court of the 2nd Munsif of Goalundo knowing it to be forged.

2. The Munsif in the suit found that the receipt was a forgery and the two defendants applied to the Munsif for an order directing that a complaint should be made to a Magistrate against the present appellant. Before that application wag disposed of the judicial officer in question was transferred and the case was by the order of the District Judge transferred to the Court of the first Munsif of Goalundo. That learned Munsif of Goalundo when the matter came before him under Section 476, Criminal P.C., refused to direct a complaint to be made on the view that he had no jurisdiction in the matter, he not being the Court referred to in Section 476 in respect that the alleged offence had not been committed in or in relation to a proceeding in his own Court but had been committed, if at all, in relation to proceeding in the Court of the Second Munsif of Goalundo who had tried the case. That being his view the learned First Munsif thought that he had no jurisdiction.

3. An appeal was taken to the District Judge under Section 476-B, and the first thing that the learned Judge had to decide was whether the view as to jurisdiction taken by the Court from whose order an appeal was being brought to him was right or wrong. If the learned First Munsif of Goalundo had no jurisdiction to make a complaint, and had rightly refused to make a complaint, the appeal should have been dismissed upon that ground. On the other hand, if the learned District Judge took the view that the learned First Munsif of Goalmndo had jurisdiction, but had wrongly held that he had no jurisdiction then he would be entitled to make a complaint under Section 476-B. Upon the former view that there was no jurisdiction in the First Munsif of Goalundo, it might or might not have been proper for the learned District Judge to entertain an application if made under Section 476-A, and in that event, whether he granted the application or refused the application, an appeal would lie to this Court. This Court has already held that no appeal lies from an order made by a superior Court in its appellate powers under Section 476-B. It is entirely wrong, however, for the learned District Judge to think that whether or not the First Munsif of Goalundo had jurisdiction under Section 476, he, the learned District Judge, on an appeal therefrom, could make a complaint which the learned First Munsif could not have made. It seems to us, therefore, that the order before us is wrong in the sense that the learned District Judge has proceeded irregularly without enquiring properly into the correctness of the view taken by the First Munsif of Goalundo to the effect that there was no jurisdiction in his Court to entertain this particular application for complaint.

4. We cannot interfere with the order, however, as a matter of appeal, but it does seem to us that the error committed by the learned District Judge falls within Section 115, Civil P.C. It was an error with respect to jurisdiction. It is also an error with respect to procedure. It is a material irregularity and the view taken by the learned District Judge may operate to deprive the present appellant of a right of appeal. If the true view be that the learned District Judge's only power to make a complaint was, in the circumstances, under Section 476-A, it is quite clear that the erroneous procedure adopted in this case has deprived the appellant of a right of appeal. In these circumstances we must make an order sending this matter back to the learned District Judge in order that he may decide whether or not the Court from which the appeal was brought, rightly or wrongly, held that it had no jurisdiction. If it rightly so held then the appeal should be dismissed. It may or may not then happen that an application will be made to the learned District Judge under Section 476-A. We say nothing to limit the discretion of the learned District Judge in that event. On the other hand, if the learned District Judge takes the view that the First Munsif of Goalundo had jurisdiction to order a complaint, and had wrongly refused to do so, then it would be possible for him to make a proper order under Section 476-B, directing that a complaint should be lodged.

5. The appeal is dismissed, but an order is made, as stated, under Section 115, Civil P.C.

Chotzner, J.

6. I agree.


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