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Budhu Lal Vs. Chattu Gope - Court Judgment

LegalCrystal Citation
Decided On
Reported in39Ind.Cas.465
AppellantBudhu Lal
RespondentChattu Gope
Cases ReferredTarakant Bannerjee v. Pudomoney Dossee
criminal procedure code (act v of 1898), sections 195, 435, 439 - application for leave to sue, whether judicial proceeding--sanction refused by lower court--appellate court, power of--evidence, further, whether can be taken--civil procedure code (act v of 1908), sections 115, 151--high court, revisional power of, scope of--letters patent (cal.), clause 15--'judgment,' meaning of--penal code (act xlv of 1860), sections 209, 193--delay in applying for sanction, effect of. - .....have already referred.5. the application was headed: 'in the matter of section 115 of the code of civil procedure,' but the learned judge at the hearing suggested that it would be more appropriate if it were made under the criminal procedure code, and in fact the learned standing counsel treated it as such an application, and the learned judge purported to make the order under section 195 of the criminal procedure code.6. the small cause court being subordinate to this court, it is clear that this court had jurisdiction under section 195(6) of the criminal procedure code to deal with the application; but in my judgment it is equally clear that under this section there was no power in the learned judge to remand the case to the small cause court for further enquiry. under this section.....

Lancelot Sanderson, C.J.

1. This in an appeal from the decision of Chaudhuri, J., given on the 6th December 1915, whereby he directed that an enquiry should be held by one of the learned Judges of the Small Cause Court as to whether sanction should be given to prosecute one Budhu Lal, the plaintiff in the Small Cause Court Suit and the appellant in this Court, upon the materials placed before that Court, and whether the grounds upon which the jurisdiction of the Court was invoked when leave was asked for to institute the said Suit No. 15292 of 1913, are true or untrue.

2. We have already disposed of the preliminary point taken by the learned Standing Counsel and held that an appeal lay from the decision of Chaudhuri, J.

3. We have now to decide the appeal on the merits.

4. I have already sufficiently stated the facts in giving judgment on the preliminary point, and I need not repeat them. The first point which arises is, whether the learned Judge had jurisdiction to make the order in the form to which I have already referred.

5. The application was headed: 'in the matter of Section 115 of the Code of Civil Procedure,' but the learned Judge at the hearing suggested that it would be more appropriate if it were made under the Criminal Procedure Code, and in fact the learned Standing Counsel treated it as such an application, and the learned Judge purported to make the order under Section 195 of the Criminal Procedure Code.

6. The Small Cause Court being subordinate to this Court, it is clear that this Court had jurisdiction under Section 195(6) of the Criminal Procedure Code to deal with the application; but in my judgment it is equally clear that under this Section there was no power in the learned Judge to remand the case to the Small Cause Court for further enquiry. Under this Section the sole power given to this Court is to revoke a sanction given or grant a sanction refused by the subordinate Court, and therefore, in my judgment, the order made in the form already referred to, which amounted to a remand for further enquiry and decision by the Small Cause Court, cannot be upheld. This was not really disputed by the learned Standing Counsel, but he urged that such an order could be supported by reference to Section 115 of the Civil Procedure Code. As regards this point, it must be remembered that the proposal of the learned Judge to deal with this application under Section 195 of the Criminal Procedure Code was adopted on behalf of the applicant, and, in my judgment, it would not be right for us in a case of this kind, which is of a criminal nature, to allow the applicant, who is really the C.I.D., to shift his ground again even if we had power to act under Section 115 of the Civil Procedure Code.

7. The ordinary rule of this Court is that it will not interfere and exsrcise its powers under Section 115 of the Civil Procedure Code, if the aggrieved party has other remedy available, though it may do so in exceptional cases.

8. There being the remedy provided by Section 195 of the Criminal Procedure Code, I do not think it would be right for us under the circumstances of this ease, even if we have jurisdiction so to do, to exercise the powers given to the Court under Section 115 of the Civil Procedure Code.

9. It must, therefore, be considered what order should be made in this case.

10. It has been decided by Chaudhuri, J. that the learned Judge of the Small Cause Court was wrong in holding that the application for leave to sue was not a stage in a judicial proceeding, and I concur in Chaudhuri, J.'s judgment. He held further that the delay in making the application had been explained to his satisfaction: I see no reason to differ from his decision on this question of fact.

11. The circumstances of the case were certainly remarkable, so far as the facts, which we have before us, indicate.

12. The plaintiff instituted (it is said on behalf of another person) seven suits in the Small Cause Court against Chattu Gape (the petitioner before Chaudhuri, J.) and others: the case against Chattu Gope being based on a promissory note alleged to have been given in respect of money advanced by the plaintiff at the request of a third person and to have been executed by Chattu Gope in Calcutta in September 1911. Chattu Gope and the other defendants in these suits being resident outside Calcutta, the plaintiff Budhu Lal made application for leave to sue, and swore that the money was lent in Calcutta and payable in Calcutta. When the cases came on for trial, neither the plaintiff nor the alleged other person gave any evidence themselves or produced any witnesses, but agreed to abide by the defendants' denial on oath of their liability. No decision has been given on the merits of the application for leave to prosecute, and under the circumstances of the case, in my judgment, it is desirable that such a decision should be arrived at by this Court; and the proper course will be to remit the application to a Division Bench and as Chief Justice, I determine, as I have power to do, that the ease shall be remitted to Teunon and Chaudhuri, JJ. By this course I hope further delay will be prevented. The question remains, whether on the hearing the application will be confined to the materials which were before the Small Cause Court, or whether the Court will have power to take evidence. I should be sorry to be compelled to hold that the Court had no power to take evidence on such an application as this. If I was compelled so to hold, unfortunate results might happen: it might happen that the Judge of a subordinate Court might decide to refuse sanction to prosecute on a point of law without giving the accused person an opportunity of being heard on the merits. Upon an application under Section 195 of the Criminal Procedure Code, the High Court might decide (as it did in this case) that the judgment of the subordinate Court on the point of law was wrong: and the Court would then have to decide whether sanction to prosecute should be granted. In such a case, it would be a great hardship on the accused person if he were debarred from giving his. explanation before the High Court, especially as the Judge of that Court under Section 195 could not remand the case for further enquiry and decision.

13. In my judgment the learned Judges can take evidence as to the merits of the application, In fact, evidence, in the shape of affidavits, has already been given before Chaudhuri, J., and the affidavits are on the file available for the use of the Court--it will be open to the Court to consider such evidence and to take further evidence if it thinks fit, due care, of course, being taken, if any examination of witnesses takes place, that the person against whom the charge is made is not put into a position of prejudice, or called upon in any way to incriminate himself.

Mookerjee, J.

14. I agree that the order made by Chaudhuri, J., cannot be supported.

15. The Small Cause Court Judge dismissed the application for sanction to prosecute the appellant under Section 195, Criminal Procedure Code, on the ground that the alleged offence had not been committed in relation to any proceeding in any Court. The applicant for sanction then brought up the matter to this Court under Section 195(6) read with Section 195(7)(c). Chaudhuri, J., had held, and in my opinion correctly held, that the ground assigned by the Small Cause Court Judge in support of his order is erroneous; he has accordingly discharged that order and remanded the case for enquiry and final disposal by the Small Cause Court Judge. It has been argued before us that the order of remand for fresh investigation is erroneous as not contemplated by Section 195(6). That clause provides that any sanction given or refused under the Section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate. Where, as in the case before us, the subordinate Court has refused sanction, the superior Court is, upon a plain reading of Section 195(6), authorised either to confirm that order or to grant sanction: but the superior Court is not authorised to remand the case for further enquiry and for final disposal in accordance with the result thereof. This, position cannot be and has not been contested; it is, indeed, supported by several judicial decisions [Anonymous (L.P.A. (Mad.) No.,37 of 1906) 16 M.L.J. 45n, Beni Pershad v. Sarju Pershad 9 Ind. Cas. 982 ; 33 A. 512, 8 A.L.J. 429 ; 12 Cr. L.J. 174, In re Kamma Narayanappa 8 Ind. Cas. 679 ; 9 M.L.T. 97 ; 11 Cr. L.J. 699 ; (1911) 1 M.W.N. 100 and Muhammad Ishaq v. Muqim-ud-din 19 Ind. Cas. 178 ; 7 P.R. 1913 Cr.; 14 Cr. L.J. 178 ; 207 P.L.R. 1913]. But the Standing Counsel has contended that when a subordinate Civil Court has made an order under Section 195, the High Court is competent to interfere, not merely under Clause (6) of that Section, but also in the exercise of its revisional powers under Section 115 of the Civil Procedure Code and to pass, under this latter Section, such order as it may deem proper. In support of this view, reliance has been placed upon the decision of Pugh, J., in Ramdin Bania v. Sew Baksh Singh 6 Ind. Cas. 473 37 C. 714 ; 14 C.W.N. 806 ; 11 Cr. L.J. 357, which is based upon the view taken by the Allahabad High Court in In the matter of Bhup Kunwar 26 A. 249 : A.W.N. (1904) 15 ; 1 Cr. L.J. 73 and Salig Ram v. Ramji Lal 26 A. 249 : A.W.N. (1904) 15 ; 1 Cr. L.J. 73. There has been considerable divergence of judicial opinion upon the question, whether, when a High Court revises an order of a subordinate Civil Court made under Section 195, Criminal Procedure Code, the source of the authority for such interference should be sought in Section 115 of the Civil Procedure Code or in Section 439 of the Criminal Procedure Code. The cases of Ram Prosed Roy v. Sooba Roy 1 C.W.N. 400, Guru Charan Shaha v. Girijja Sundari Dasi 7 C.W.N. 112 ; 29 C. 887, In re Chetinanognud 26 M. 139 ; 2 Wicr 197, Muhammad Yakub v. Muhammad Tyal. A.W.N. (1903) 172, Salig Ram v. Ramji Lal 28 A. 554 ; 3 A.L.J. 394 : A.W.N. (1906) 103 ; 3 Cr. L.J. 400 ; 1 M.L.T. 219, Kannnmbaih Imbichi Nair v. Manathanath Human Nail 29 M. 122 ; 4 Cr. L.J. 164, Kali Prosed Chatterji v. Bhuban Mohini Dasi 8 C.W.N. 73 ; 1 Cr. L.J. 21, Mahomed Bhukku v. Queen-Ermprers 23 C. 632 ; 12 Ind. Dec. (N.S.) 354, Ranjit Singh v. Sibba Mal A.W.N (1905), 85 : 2 Cr. L.J. 225. In re Bal Gangadhar Tiluk 26 B. 785 ; 4 Bom. L.R. 618 and Emperor v. Bankotram Lachiram 8 B 533 ; 6 Bom. L.R. 379 ; 1 Cr. L.J. 390 directly or impliedly support the view that Section 115 of the Civil Procedure Code is applicable. On the other hand, the decisions in Bishen Singh v. Amritsaria 5 P.R. 1908 Cr. ; 7 P.W.R. 1908 Cr. ; 103 P.L.R. 1908 : 7 Cr. L. J. 291, Emperor v. Barkat Ram 10 Ind. Cas. 121; 38 P.W.R. 1911 Cr. ; 158 P.L.R. 1911 ; 12 Cr. L.J. 216, Shankar Rao v Shaik Daud 4 N.L.R. 140 ; 8 Cr. L.J. 351, Musaji v. Mohammed Walayatullah Khan 6 O.C 216 and Nallapparaju Venkataramoroju v. Medisetti Achayya 33 Ind. Cas. 821 ; 17 Cr. L.J. 184 favour the view that it is competent for the High Court to revise the order of the subordinate Civil Court in such circumstances, only under Sections 435 and 439 of the Criminal Procedure Code. In my opinion, this controversy as to the rival claims of Section 115 of the Civil Procedure Code and Sections 435 and 439 of the Criminal Procedure Code is based upon a misapprehension, and the fallacy which underlies the decision of Pugh, J., in Ramdin Bania v. Sew Baksh Singh 6 Ind. Cas. 473 37 C. 714 ; 14 C.W.N. 806 ; 11 Cr. L.J. 357 is the erroneous assumption that one of these Sections must be applicable. The true view is that Section 195 creates a special jurisdiction, as explained in Adimulam Pillay v. Krishnayen 14 Ind. Cas. 305 ; 22 M.L.J. 419 ; (1912) M.W.N. 499 ; 11 M.L.T. 367 ; 13 Cr. L.J. 209, and provides in Clause (6) the machinery for the correction of possible errors committed by the Primary Court. Consequently, upon well-known principles, the interference by the High Court must be attributed neither to Section 115, Civil Procedure Code, nor to Sections 435 and 439, Criminal Procedure Code, but only to Section 195(6), Criminal Procedure Code. As Lopes, L.J., observed in Reg. v. Essex County Court Judge (1887) 18 Q.B.D. 704 at p. 708 ; 56 L.J.Q.B. 315 ; 57 L.T. 643 : 35 W.R. 511 ; 51 J.P. 549, in the case of an Act which creates a new jurisdiction, a new procedure, new forms or new remedies, the procedure, forms and remedies there prescribed and no others must be followed.' To the same effect is the exposition by Lord Halsbury in Pasmore v. Oswaldtwistle Urban District Council (1898) A.C. 387 at p 394 ; 62 J.P. 628 ; 67 L.J.Q.B. 635 ; 78 L.T. 569 'The principle that where a specific remedy is given by a Statute, it thereby deprives the person, who insists upon a remedy of any other form of remedy than that given by the Statute, is one which is very familiar and which runs through the law.' In the case before us, the machinery for correction of possible errors is provided in Clause (6) of Section 195, and, consequenly, the party who seeks relief must have recourse thereto and cannot invoke the aid of Section 115, Civil Procedure Code, or Sections 435 and 439, Criminal Procedure Code. The remedy provided is not restricted in scope; the superior tribunal is not limited to an examination of questions of fact or questions of law alone, but may, upon a review of all the circumstances, either affirm or reverse the order of the Primary Court [ Jamna Das v. Sabapathy Chetti 12 Ind. Cas. 521 ; 36 M. 138 ; 10 M.L.T. 278 ; (1911) 2 M.W.N. 259 ; 21 M.L.J.1074 ; 12 Cr. L.J. 545 and Ram Raja Dat v. Sheo Dayal 29 Ind. Cas. 329 ; 37 A. 439 ; 13 A.L.J. 685 ; 10 Cr. L.J. 489]. It is thus immaterial, whether, the remedy provided in Clause (6) is regarded as in the nature of an appeal or a revision, specially when we remember that as explained by Westbury, L.C., in Attorney-General v. Sillem (1861) 10 H.L.C. 704 ; 10 Jur 446 ; 10 L.T. 434 ; 4 N.R. 29 ; 12 W.R. 641 ; 138 R.R. 382 ; 11 E.R 1200 and by this Court in Secretary of State v. British India Steam Navigation Company 9 Ind. Cas. 183 ; 15 C.W. 848 ; 13 C.L.J. 90 at p. 93, what is technically called revision is only one aspect of the appellate jurisdiction. I am not unmindful that successive applications of Section 195(6) may be necessary, when the Primary Court is subordinate in the second degree to a High Court. That recourse may be had to the remedy provided by Section 195(6), in this manner, is shown by numerous decisions [Girijja Shankar Roy v. Binode Sheikh 5 C.L.J. 222 ; 5 Cr. L.J. 188, Habibur Rahman v. Munshi Khoda Bukhsh 11 C.W.N. 195 ; 5 C.L.J. 219 ; 5 Cr. L.J. 29, Palaniappa Chetti v. Annamalai Chetti 27 M. 223 ; 14 M.L.J. 74 ; 2 Weir 208 ; 1 Cr L.J. 321, Kannambath Imbichi Nair v. Manathanath Raman Niair 29 M. 122 ; 4 Cr. L.J. 164, Muthvsami Mudali v. Veeni Chetty 30 M. 582 ; 17 M.L.J. 266 ; 2 M.L.T. 239 ; 6 Cr. L.J. 102, and In re Narayana Nadan 23 Ind. Cas. 479 ; 26 M.L.J. 486 ; 15 Cr. L.J. 271 ; 1 L.W. 381], though there has been some divergence of judicial opinion on the subject [Baran Barai v. Mata Parsad 25 Ind. Cas. 528 ; 36 A. 469 ; 12 A.L.J 821 ; 15 Cr. L.J. 616, Kanhai Lal v. Chhadammi Lal 1 Ind. Cas. 5 ; 31 A. 48 ; A.W.N. (1908) 290 ; 6 A.L.J. 1 ; 5 M.L.T. 55 ; 9 Cr. L.J. 63 and Mohammad Yasin v. Cheda Lal 29 Ind. Cas. 540 ; 13 A.L.J. 709 ; 16 Cr. L.J. 524]. The position then is that the assistance of this Court could in the present case have been invoked only under Section 195(6), Criminal Procedure Code. Under that provision, the only order which Chaudhuri, J., was competent to pass, subject to the observation I shall presently make, was to grant sanction, if he was of opinion that sanction had been refused on erroneous grounds. But I am further of opinion that Chaudhuri, J., had, in the view I take, no jurisdiction to deal with this matter. Under the rules of Court (Chapter II, Rule V), he would have jurisdiction if this were a matter under Section 115, Criminal Procedure Code, but as it falls within Section 195(6), it could be decided only by a Judge or Judges to whom it might have been allocated by the Chief Justice [of. Kalli Kinkar Sett v. Dinobandhu Nandyi 32 C. 379 ; 9 C.W.N. 321 ; 2 Cr. L.J. 106, Jamna Das v. Sabapathy Chetti 12 Ind. Cas. 521 ; 36 M. 138 ; 10 M.L.T. 278 ; (1911) 2 M.W.N. 259 ; 21 M.L.J.1074 ; 12 Cr. L.J. 545]. I thus see no escape from the conclusion that the order made by Chaudhuri, J., must be set aside, first, because it was made without jurisdiction, and secondly, because it contravened the provisions of Section 195(6). The application must consequently be re-heard by such Judge or Judges as may be appointed by the Chief Justice.

16. When the case comes to be re-heard, the question must arise, whether the Court is competent to hold an enquiry into the facts, and for this purpose to act on evidence adduced before it or before the subordinate Court under its direction. The cases of Rama Iyer v. Venkatachala Padayachi 30 M 311 ; 12 M.L.T. 84 ; 17 M.L.J. 123 ; 5 Cr. L.J. 288 and Krishna Reddy v. Emperor 5 Ind. Cas. 881 ; 33 M. 90 ; 7 M.L.T. 125 ; 20 M.L.J. 102 ; 11 Cr. L.J. 280 support the view that the Court does not possess such power under Section 195(6). I am not prepared to accept this proposition as well founded in law, and in this conclusion I am supported by the decision of Piggott, J., in Rahamatullah v. Emperor 32 Ind. Cas. 157 ; 17 Cr. L.J. 29. The Section does not specify the procedure to be followed by the superior tribunal, and I feel no doubt that the Court has inherent power to take such steps as may be necessary to enable it to discharge the duty imposed upon it. As I had occasion to observe in the course of my judgment in the case of Pulin Behary Das v. Emperor 16 Ind. Cas. 257 ; 13 Cr. L.J. 809 ; 16 C.W.N, 1105 ; 15 C.L.J. 517, Criminal Courts, no less than Civil Courts, exist for the administration of justice, and Courts of both description have inherent power to mould the procedure, subject to the statutory provisions applicable to the matter in hand, to enable them to discharge their functions as Courts of Justice [see also Sheikh Ahmed Ali v. Keenoo Khan 1 Ind. Cas. 202 ; 36 C. 44 ; 13 C.W.N. 77 ; 9 Cr. L.J. 294]. I am not unaware that the Criminal Procedure Code does not contain a provision corresponding to Section 151 of the Civil Procedure Code; but that Section does not lay down any new principle; it merely embodies a legislative recognition of the inherent power of the Court to make such order as may be necessary for the the ends of justice. This inherent power is in no sense restricted in application to Civil cases; it is equally applicable to Criminal matters. The power is not capriciously or arbitrarily exercised; it is exercised ex debito jnstitx: to do that real and substantial justice for the administration of which alone Courts exist; but the Court, in the exercise of such inherent power, must be careful to see that its decision is based on sound general principles and is not in conflict with them or with the intentions of the Legislature as indicated in statutory provisions.

17. Let me examine the matter before us in the light of this principle. If the Small Cause Court had adopted the course commended by Turner, L.J., in Tarakant Bannerjee v. Pudomoney Dossee 10 M.I.A. 476 at p. 488 ; 5 W.R. (P.C.) 63 ; 1 Suth, P.C.J. 631 ; 2 Sar. P.C.J. 184 ; 19 E.R. 1052, as desirable in all appealable cases, namely, to complete the investigation and pronounce an opinion on all the important points, this Court, in the event of disagreement with the subordinate Court on the question of law, would still have ample material before it to enable it to give judgment on the merits. Inasmuch as such materials have not been recorded by the Primary Court, there is no conceivable reason why suitable measures should not be adopted in that behalf, in other words, why steps should not be taken by the superior tribunal to have the evidence recorded either before itself or before the subordinate Court under its direction. Such a step may be necessary, not merely in the interest of the prosecution but also for the protection of the accused. I hold accordingly that when the case is re-heard, the Court will be at liberty to give such direction, as it may deem necessary, for ascertainment of all disputed questions of fact, to enable it to decide whether sanction should be granted or refused.

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