Skip to content

Surendra Nath Maity Vs. Susil Kumar Chakrabarty - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1931Cal604
AppellantSurendra Nath Maity
RespondentSusil Kumar Chakrabarty
Cases ReferredMahomed Boyatulla v. Emperor
- .....of opinion that the criminal procedure code applied and duval, j., being of opinion that the civil procedure code applied. in the case of nasaruddin khan v. emperor 0049/1926 : air1927cal98 which was decided by c. c. ghose and duval, jj., it was decided that the civil procedure code applied; and in the case of mahendra nath das v. emperor : air1929cal428 , suhrawardy, j. agreed with the latter view. personally i also agree with this view and think that all such applications under sections 476, 476-a and 476-b originating in civil courts must be dealt with according to the provisions of the civil procedure code. if that code is applicable it is clear that there is ample power under order 41 thereof, to enable the district judge to make the order for further enquiry which he made in.....

Lort-Williams, J.

1. In this case the petitioner who is a pleader of Ghatal brought two suits against the opposite party and others, one being a title suit. In the plaint of this suit he mentioned a certain 'raidad' as the foundation of his claim and at a late stage he filed what purported to be a certified copy thereof. It was alleged that this copy was a forgery. The two suits were tried together and dragged on for nearly two years. Eventually the Munsif ordered that the original of this document should be produced and subsequently the petitioner asked to be allowed to withdraw both the suits and permission was given. Thereupon one of the defendants applied for sanction to prosecute the petitioner. Eight months afterwards this application was dismissed for nonprosecution. Then the present opposite party applied for sanction. The Munsif rejected the application remarking that it was belated and that probably there was some ulterior motive behind it. The opposite party appealed to the District Judge at Midnapore. He took the view that such a matter was not an ordinary civil matter between parties but that the notice of the Court had been brought to an offence committed against public justice and that the Court ought to have gone into the merits and decided whether or not a complaint should be made. That the learned Munsif ought not to have allowed the case to be disposed of in a summary manner and ought to have made a complaint or at any rate ought to have held an enquiry. That being so the District Judge after stating that in his opinion there ought to have been a searching enquiry allowed the appeal, restored the application, ordered that it should be decided on its merits and sent the matter back to the Munsif for further enquiry. A rule was issued to show cause why this order of the District Judge should not be set aside.

2. The matter comes before us in revision under Section 115, Civil P.C., It has been decided in the case of Emperor v. Har Prasad Das [19l3] 40 Cal. 477 (Full Bench) that when an order under Section 476, Criminal P.C. is passed by a civil or revenue Court Section 439, Criminal P.C. has no application but that the High Court can exercise its revisional power under Section 115, Civil P.C. By an order made by the Chief Justice this Criminal Bench has been authorized to deal with such matters. Our powers under Section 115, Civil P.C. are strictly limited to those mentioned therein. Substantially we cannot interfere unless the Subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction so vested in it or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

3. The first question raised before us is that upon such an application as this we must be guided by the provisions of the Criminal P.C. Section 476 being contained within that Code. In the case of Hamid Ali v. Madhu Sudan Das : AIR1927Cal284 the learned Judges differed upon this question Chotzner, J., being, of opinion that the Criminal Procedure Code applied and Duval, J., being of opinion that the Civil Procedure Code applied. In the case of Nasaruddin Khan v. Emperor 0049/1926 : AIR1927Cal98 which was decided by C. C. Ghose and Duval, JJ., it was decided that the Civil Procedure Code applied; and in the case of Mahendra Nath Das v. Emperor : AIR1929Cal428 , Suhrawardy, J. agreed with the latter view. Personally I also agree with this view and think that all such applications under Sections 476, 476-A and 476-B originating in civil Courts must be dealt with according to the provisions of the Civil Procedure Code. If that Code is applicable it is clear that there is ample power under Order 41 thereof, to enable the District Judge to make the order for further enquiry which he made in this case.

4. One of the arguments raised by the learned advocate for the petitioner was that Sections 476, 476-A and 476-B are intended to be selfcontained and are concerned with a special procedure which has been incorporated in the body of the Code. That, no doubt, would be a convenient view and would tend to restricted appeals in matters which essentially are for the exercise of discretion by the trial Judge. But in our opinion this cannot be a sound view, because there are a number of steps in procedure such as the proper mode of making applications and of filing appeals, details of which are not to be found in any of these sections and the provisions for which must be looked for in other sections of the Code. If therefore the provisions of the Civil Procedure Code do not apply, we are of opinion that the provisions of the Criminal Procedure Code under Ch. 31, apply to matters arising under Section 476 or Sections 476-A and 476-B except where it is clear from the sections themselves that the provisions are restricted to matters arising solely under that chapter. For example, Section 428 (1) refers only to appeals under Ch. 31 and has no application to matters arising under Section 476. This was decided in Vannia Nainar v. Periasami Naidu : AIR1928Mad391 . But in our opinion Section 413 clearly applies and Sub-sections 1 (b) and 1 (c) gave the District Judge ample power to make the order. This view was taken by Suhrawardy and Costello, JJ. in, Mahomed Boyatulla v. Emperor : AIR1931Cal3 . The learned Judges said:

We think that appeals under Section 476-B are subject to all provisions applicable to criminal appeals as laid down in Section 419 and the following sections or the Criminal P.C.

5. In our opinion it is obvious that Section 476-B is not intended to be exhaustive, but provides powers supplementary to those which are given under Ch. 31. Otherwise for example the appellate Court would have no power to dismiss an appeal brought under that section. Moreover Section 404 shows that the provisions of Ch. 31 with certain exceptions specified in the section itself, apply to the whole of the Criminal Procedure Code.

6. On the specified question whether the learned Judge had power to remand the case, the judgment of Suhrawardy, J. in Mahendra's case (supra) is an authority to the extent that he was satisfied that such power of remand existed certainly under the Civil Procedure Code, This being the position we are of opinion that we cannot interfere with the order which the learned District Judge has made, but bearing in mind the fact that this is entirely a matter of discretion, and that the Munsif had all the facts before him when coming to the conclusion to reject the application, we consider, generally speaking, that it is unwise and improper to interfere with such exercise of discretion if it has been judicially exercised.

7. Our opinion with regard to this case in particular is that the District Judge might well have left matters where they were, rather than make the order which he has made. For these reasons this rule is discharged.

S.K. Ghose, J.

8. I agree.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //