Monoj Kumar Mukherjee, J.
1. The principal question that falls for de- termination in this Rule is whether an application filed under Section 476 of the Code of Criminal Procedure 1898 (hereinafter referred to as the Code) in a Civil Court is to be governed by the Code of Civil Procedure or the Code of Criminal Procedure. Another Question ancillary to the above, which also requires an answer is whether a revisional application against any order passed in such a proceeding, is to be made under Section 115 of the Code of Civil Procedure or Section 439 of the Code. The questions arise in this wav.
2. The parties hereto, who are three brothers, had been litigating in the 4th Court of the Additional District Judee, Alipore over an application for probate of the last will and testament of their mother. In that proceeding which was registered as O.S. No. 10 of 1971 Sri Meghesh Kumar Sadbukhan. one of the brothers and the opposite party No. I herein, filed an application on January 30. 1974 stating that his other two brothers produced a foreed document during the hearing of the probate application and Sri Gurudas Banerjee. the opposite party No. 3 herein, supported them by giving false evidence and praying that a complaint may be filed against them under Sections 193, 194, 195 and 471 read with Section 34 of the Indian Penal Code. On the date fixed for hearing of the said application Meghesh Sadhukhan and his lawyer were absent and the application was dismissed for default. Thereafter an application under Order 9. Rule 9 and Section 151 of the Code of Civil Procedure was filed and by order No. 159 dated 5-5-1979 the learned Judee allowed the application, set aside the order of dismissal and restored Misc. Case No. 2 of 1974. which was registered on the application under Section 476 to file. Aggrieved thereby the petitioner, who was one of the opposite parties in that application, moved this Court in its criminal revisional iuirsdiction by filing an application which was described as' one under Article 227 of the Constitution of India and Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 and obtained the present Rule. On behalf of the petitioner it was contended that an application under Section 476 of the Code was to be filtered by the Code of Criminal Procedure and accordingly the learned Judge erred in law in invoking the Code of Civil Procedure and for the matter of that the provisions of Order 9, Rule 9 of the said - Code for setting aside the order of dismissal of that application. The opposite party No. 1 on the other hand contended that since the application under Section 476 of the old Code was filed before a Civil Court it was to be dealt with in accordance with the Code of Civil Procedure and the learned Judge was fully justified in setting aside the order of dismissal by taking recourse to Order 9, Rule 9 thereof. It was further contended on behalf of the opposite party that the instant application filed in the criminal revisional jurisdiction of this Court was not mantainable as the order was passed by a Civil Court and not by an inferior Criminal Court. and the provisions of Sections 435 and 439 of the Code or the provisions of Section 397/401 of the Code of Criminal Procedure, 1973 were not applicable.
3. The Questions raised in this Rule have been engaging the attention of different High Courts and diametrically opposite views have been taken by theat Full Benches. So far as the ancillary question formulated above is concerned, a Full Bench of our Hafiz Court expressly laid down, in the case of Harprasad Das v. Emperor reported in (1913) 17 Cal WN 647. that in the case of an order passed under Section 476 of the Code by a Civil or Revenue Court. Section 439 of the Code had no application as those Courts were not inferior Criminal Courts and such an order could be revised by the Hiah Court only under Section 115 of the Code of Civil Procedure. Since we are bound by the above decision of the Full Bench we must hold that the present application filed by the petitioner invoking the criminal revisional powers of this Court is not maintainable. Instituting the application as one under Article 227 of the Constitution of India is of no assistance to the petitioner as the law is now settled that the above constitutional provision cannot be availed of to circumvent specific provision of statute and Section 115 of the Code of Civil Procedure provides for effective and adequate remedy to meet the needs of the instant case.
4. The above discussion would have been sufficient to dismiss the application and discharge the Rule but. since the petitioner may again file an application under Section 115 of the Code of Civil Procedure we propose to decide the principal Question raised. In the Full Bench decision of our Hifih Court referred to above it did not fall for decision whether an application under Section 476 of the Code was to be dealt with in accordance with the Civil Procedure Code or the Code of Criminal Procedure and as such the question has to be decided in the light of other decisions of different High Courts including ours.
5. Before we proceed to consider those decisions it will be appropriate to refer to the relevant provisions of law relating to these matters. Since the application with which we are concerned was filed on January 30. 1974 we are to be governed by the Code and not by the Code of Criminal Procedure, 1973. Section 476(1) of the Code reads as follows:- .
When any civil. Revenue or criminal Court is. whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in Section 195. Sub-section (1). Clause (b) or Clause (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may after such preliminary inquiry, if any. as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may if it thinks necessary so to do. send the accused in custody to such Magistrate, and may bind over any persoa to appear and give evidence before such Magistrate.
Section 476B reads as under:-
Any person on whose application any Civil. Revenue or Criminal Court has refused to make a complaint under Section 476 or Section 476A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195. Sub-section (3) and the superior Court mav thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or. as the case may be. itself make the complaint which the subordinate Court might have made under Section 476, and of it makes such complaint' the prbvisiorfe of that section shall apply accordingly.
Sub-section (1) of Section 195 reads:-
No Court shall take cognizance -
(b) of any offence punishable under any of the followine sections of the same Code (i.e., Indian Penal Code}, namely. Sections 193, 194. 195, 196. 199. 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate: or
Sub-section (3) reads -
For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil iurisdiction within the local limits of whose iurisdiction such Civil Court is situate;
(a) Where appeals lie to more than one. Court, the Appellate Court of inferioi iurisdiction shall be the Court to which such Court shall be deemed to be subordinate, and
(b) Where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
6. As indicated earlier there is a sharp conflict in the views of the different High Courts over the principal cmestion raised in this revisional application. In the case of Emperor v. Bhatu Sadumali, reported in AIR 1938 Bom 225 : 39 Cri LJ 495 a Full Bench of the Bombay High Court, while deciding that an application in revision against an order passed under Section 476B by a Civil Court should be heard and disposed of by the High Court in accordance with the provisions of Section 439 of the Coda of Criminal Procedure and not of Section 115 of the Civil Procedure Code, observed that Section 195(3) of the Code only determined the forum to which the appeal lay and did not determine the character of such Court. If the Court hearing the appeal under Section 476B was a Civil Court, the procedure must be governed by the Code of Civil Procedure, but a Civil Court while dealing with an application under Section 476 was exercising iurisdiction in a criminal matter and consequently the procedure relating to criminal appeals would apply to proceedings under Section 476B. In Dhun Narayan Singh v. State reported in AIR 1954 Pat 76 : 1954 Cri LJ 97 a Full Bench held tha an appeal under Section 476B from an order passed under Section 476 by a Civil Court must be deemed to be a criminal appeal and the provisions of the Code of Criminal Procedure so far as they were applicable relating to the appeals under the said Code apply to such an appeal. While laying down the above principle the Court observed that a Civil Court while hearing an appeal under Section 476B was exercising a power conferred upon it by a statute, namely, the Code of Criminal Procedure, and Section 476B contains no provision as some other statutes, to the effect that the provisions of the Code of Civil Procedure should apply to an appeal under Section 476B. It further observed '...one of the tests would be that the appeal is certainly not under any provision of the Code of Civil Procedure but is certainly one under a provision of the Code of Criminal Procedure. If an appeal lies under a provision of the Code of Criminal Procedure, logically speaking it should be termed as a criminal appeal and not a civil appeal for the simple reason that it is an appeal provided bv the Code of Criminal Procedure.' It also observed that in the absence of any express provision in Section 476B of the Code of Criminal Procedure, the provision of the Code of Civil Procedure relating to appeal would not apply and it would be more logical to take the view that an appeal under the. Code of Criminal Procedure should be governed as far as applicable by the provisions of the Code of Criminal Procedure relating to appeals.
7. A Full Bench of the Puniab High Court took the same view in the case of Hakim Rai v. State reported in . In that case it was held that an appeal under Section 476B of the Code of Criminal Procedure was entirely a creature of, and governed by the provisions of the Criminal Procedure Code and had nothing to do with any provisions of the Civil Procedure Code: as such the anneal was a criminal appeal and not civil appeal although decided by a Civil Court. The Court deciding such an appeal, whether it was a criminal, civil or revenue Court was acting as a criminal Court under the provisions of the Criminal Procedure Code.
8. Another Full Bench of the Patna High Court concurred with the above view in the case of Rampati Kuer v. Jadunandan, reported in : AIR1968Pat100 . Though the decisions earlier referred to, were confined to the question regarding the procedure to be followed in appeals and revisions preferred against orders passed in connection with applications under Section 476 of the Code and were not directly concerned with the procedure Hovering an original application under Section 476. in the case of Rampati Kuer (supra) it has been expressly laid down that such an application ins to be governed by the Code of Criminal Procedure and not by the Code of Civil Procedure. In so deciding the Full Bench relied upon the decisions earlier referred to and dealt with one aspect of the matter which was not considered in those decisions.
9. The aspect of the matter so dealt with was in the light of the definition of 'inquiry' under the Code and the provision of Section 5(1) of the Code which says that 'all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to provisions hereinafter contained.' According to the learned Judges. Section 476 spoke of an inauirv to be conducted before filing the complaint and in view of the provisions of Section 5(1) read with the definition of 'inquiry', such an inauiry was to be held in accordance with the provisions of the Code of Criminal Procedure notwithstanding the fact that the Court holding the enquiry was a Civil Court. It necessarily meant that an application under Section 476 was to be governed by the Code of Criminal Procedure. The Court further noticed the provisions of Section 561A of the Code and observed that if in a particular case the High Court felt that the prosecution of a person for forgery would amount to abuse of process of any Court and would not otherwise secure the ends of iustice, there was no special reason why the High Court should not auash any order for such prosecution made either by the original Civil Court under Section 476 or by the Appellate Civil Court under Section 476B of the Code. The learned Judges finally held that a combined construction of Section 5(1) read with Sections 439 and 561A of the Code was sufficient to show that the High Court could under the provisions of the Criminal Procedure Code interfere with an order passed by the Appellate Court under Section 476B of the Code of Criminal Procedure and the provisions of the Civil Procedure Code could not apply because Section 5(1) was an exhaustive provision relating to inquiry into offences under the Indian Penal Code.
10. Having carefully considered the above iudgments in the light of the relevant law on the subiect. we respectfully differ from, the views expressed therein.
11. As noticed earlier neither Section 476 nor Section 476B of the Code expressly lays down the procedure to be followed for dealing with an application or an appeal preferred thereunder. While there can be no manner of doubt that such an application or appeal when filed before a Criminal Court would be governed by the Code of Criminal Procedure, difficulty is faced in finding the answer when such application or appeal is filed in a Civil Court. It is interesting to note that though no such procedure has been expressly laid down for disposal of an application or appeal under Sections 476 and 476B, the procedure for holding an enauirv in respect of an offence referred to in Section 478(1) of the Code has been expressly laid down in Sub-section (2) thereof, which reads as follows:-
For the purposes of an inquiry under this Section the Civil or Revenue Court may exercise all the powers of a Magistrate; and its proceedings in such enquiry shall be conducted as nearly as may be in accordance with the provisions of Chapter XVIII and shall be deemed to have been held by a Magistrate.
Similarly, while granting a right of an appeal, against any sentence passed by any Court under Section 480, under Section 486(1) of the Code, the legislature has also laid down the procedure to be followed in such appeal in Sub-section (2) thereof, by expressly stating that the provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under that Section and the Appellate Court may alter or reverse the finding, or reduce or reverse the sentence appealed against.
12. It would thus be seen that whenever it was intended by the legislature that the Code of Criminal Procedure would apply to a proceeding which is initiated by a Civil Court in exercise of powers under the Code of Criminal Procedure, it has expressly said so. It necessarily means that when the legislature is silent as to the procedure to be followed while dealing with an anplication under Section 476 or an appeal under Section 476B it must be governed by the procedure of the Civil Court.
13. We are unable to share the view, expressed in some of the above Quoted cases, that since the power of the Civil Court under Section 476 or 476B emanates from the Code of Criminal Procedure it must be governed by the Code of Criminal Procedure. It is undoubtedly true that the xiower to entertain the application or the appeal is derived from the Code of Criminal Procedure but that does not necessarily mean that it has to be governed by the Code of Criminal Procedure and not by the procedure of the Court itself. Sections 476 and 476B decide the forum and the character of the Court. So long the Court is not forced to change its character by express provision it must maintain its own character and own Code. While on this point we cannot lose sight of Section 141 of the Code of Civil Procedure which lays down that the procedure provided in the Civil Procedure Code in regard to suits shall be followed, as far as it can be made applicable, in 11 proceedings in any Court of civil iurisdiction, There is nothing in Section 476 or 476B of the Code, unlike other provisions earlier referred to, from which it can be inferred that notwithstandina the provisions of Section 141 of the Code of Civil Procedure, the Criminal Procedure Code would apply to such application or appeal. Since entertainment of an application under Section 476 of the Code of Criminal Procedure till its disposal, either by rejection or by filing a complaint as provided for therein the proceeding before a civil Court continues to be a civil proceeding and consequently Section 141 can legitimately be made applicable to such an application.
14. The matter can be viewed from another angle. Admittedly there is no express provision laid down as to the procedure to be followed in disposing of an application under Section 476 of the Code. What procedure should be followed in a case where no procedure is laid down was considered by the Supreme Court in the case of National Sewing Thread Co. Ltd. v. James Chad-wick and Bros. Ltd., reported in : 4SCR1028 while dealing with the question whether a Letters Patent Appeal would lie to a Division Bench of the High Court from an appellate judement of a single Judee under the Trade Marks Act. The Supreme Court observed:- (at p. 359 of AIR)
The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed Section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that iurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L. C. in National Telephone Co. Ltd. v. Postmaster-General 1913 AC 546 in these terms:When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.
15. The same principle was re-enunciated by the Supreme Court in the case of Collector of Varanasi v. Gauri Shanker. reported in : 1SCR372 with these words (at pages 386 and 387):-
We were informed that neither the Act nor the rules framed thereunder prescribe any special procedure for the disposal of appeals under Section 19(1)(f) referring to the (Defence of India Act). Appeals under that provision have to be disposed of just in the same manner as other appeals to the High Court, Obviously, after the appeal had reached the High Court it had to be determined according to the rules of practice and procedure of that Court. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established then that appeal must be regulated by the practice and procedure of that Court.
16. The above decisions therefore are an authority for the proposition that when a statute merely provides that an application or appeal shall lie to a particular Court, without prescribing the procedure to be followed in the conduct and career of such application or appeal, the ordinary instances of the procedure of that Court are to attach. It necessarily means that an application under Section 476 of the Code when filed before a Civil Court would be eov-erned by the procedure of that Court, namely, the Civil Procedure Code.
17. The view that has been expressed by some High Courts that the Civil Court while dealing with such an application functions as a Criminal Court cannot be supported as the Code exhaustively defines classes of Criminal Courts. Under Section 6 of the Code, besides the High Courts and the Courts constitufed under any law other than the Criminal Procedure Code, there should be five classes of Criminal Courts, namely, (1) Courts of Session. (2) Presidency Magistrates, (3) Magistrate of First Class. (4) Magistrate of Second Class and (5) Magistrate of Third Class. By using the words namely the Legislature has made it abundantly clear that there cannot be any Criminal Court constituted under the Code of Criminal Procedure except those mentioned above. On the face of such express provision there is no scope to hold that a Civil Court merely because it exercises its power to hold an enquiry that too for a limited purpose, under Section 476 functions as a Criminal Court.
18. Coming now to the definition of enquiry and Section 5(1) of the Code, which the Patna Full Bench relied upon to hold that the Criminal Procedure Code would apply, let us first ascertain the nature and the scope of the enquiry to be held under Section 476. Under this section a Court is to form an opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to therein which appears to have been committed in or in relation to a proceeding in that Court: and the Court has to record a finding to that effect after such preliminary January, if any as it thinks necessary and make a complaint thereof in the appropriate forum. From a plain reading of that section it would appear that while disposing of an application under that section the Court does not hold an inquiry into an offence but expresses an opinion whether such an inquiry should be made by a competent Criminal Court. In other words, the enquiry into the offence is to be made by the Criminal Court but for ascertaining whether such an inquiry should be made or not, a preliminary inquiry is to be made by the Court before whom the application under Section 476 is filed. Then again, the decision whether a preliminary inquiry should be held and, if so, what would be the nature of the enquiry is within the exclusive domain of the Court, who is to file the complaint. The inquiry that is being made under this section by the Court, whether Civil or Criminal, is not an jnauiry into an offence which is to be governed by Section 5(1), which undoubtedly has to be held by a Criminal Court. But the preliminary inquiry which precedes such jnauirv is to be held in a manner at the discretion of the Court. The words 'if any' and 'as it thinks necessary' make it clear that preliminary inquiry is not obligatory and the mode and extent of such inquiry is at the discretion of the Court. The inquiry being only for the purpose of prima facie satisfaction of the Court that an offence appears to have been committed for which an enquiry into the offence is necessary, it cannot be said that it has to be governed by the Code of Criminal Procedure.
19. We are unable to accept the reasoning of the Patna Full Bench relying on Sections 439 and 561A of the Code, in view of the Full Bench decision of our High Court in the case of Har Prasad Das 1913-17 Cal WN 647 earlier referred to and discussed.
20. Before we conclude our discussion on the views expressed by the High Courts in support of the petitioner, we must refer to another aspect of the matter which weighed with the Puniab Full Bench in the case of Hakim Rai 1957 Cri LJ 790 (supra) and approved by the Patna Full Bench in the case of Rampati Kuer 1968 Cri LJ 355 (supra). According to the Puniab Full Bench once a person has been ordered to be prosecuted for one of the offences mentioned in Section 195(b) or (c) his position would be the same whatever be the kind of Court which has ordered his prosecution and it would be a denial of equal rights under the lav if a person whose prosecution has been ordered by a Criminal Court is entitled to ask the High Court to review the correctness, legality and propriety of the order under Section 439 of the Code while a man whose prosecution has been ordered by a Civil Court can only have the order reviewed within the narrow limits of Section 115 of the Code of Civil Procedure, and finally a man whose prosecution has been ordered by a Revenue Court has apparently no remedv at all in the High Court. With these observations the Bench said that such a discrimination could not be regarded as reasonable: but at the same time pointed out that it was not possible to Lavonia's finger on any particular provision of any of the statutes involved and sea that that particular provision offended against Article 14 of the Constitution of India. According to the learned Judges in such a matter the statute ought to be interpreted by the High Courts in such a way as not to offend against the equality of treatment guaranteed by Article 14 of the Constitution: and it was nosebleed to do so without placing any undue strain on the language of the relevant provisions of law. Keeping in view the intention of the legislature, the express provisions of the relevant statutes and the principles enunciated by the Supreme Court, we are of the opinion that the spirit and language of the law would be unduly strained if it is held that an application under Section 476 when filed before a Civil Court would be governed by the Code of Criminal Procedure, We are, therefore, unable to accept the above reasoning of the Puniab Full Bench and the Patna Full Bench.
21. Now that we have disposed of all the points supporting the contention of the petitioner, we will refer to some of the decisions which support our views and the opposite party on the principal auestion raised in this Rule.
22. A Full Bench of the Madras High Court held, in the case of Kumaravel Nadar v. Shanmuea Nadar, reported in AIR 1940 Mad 465 : 41 Cri LJ 769, that a Civil Court did not cease to be a Civil Court when it was considering an application under Section 476 and if for the purpose of that application it remained a Civil Court it must be governed by the provisions of the Code of Civil Procedure and not by those of the Code of Criminal Procedure. It observed that the fact that an appeal from an order passed on an application when it had been dealt with by a Civil Court lav to an appellate Civil Court emphasised the civil character of the Court dealing with the application. The Full Bench noticed that the position was not a satisfactory one because an application for revision arising out of proceedings in a Civil suit was to be dealt with on a different basis from a similar application arising out of criminal proceedings and observed that it was a situation which the Court could not remedy but only regret.
23. The Patna High Court in its earlier Full Bench decision in the case of Deo Nandan Singh v. Ram Lakhan Singh, reported in AIR 1948 Pat 225 : 49 Cri LJ 246, decided that a Civil Court acting under Section 476 did not exercise any criminal jurisdiction. It had no power to take cognisance of the offence, punish the offender or of inflict any sentence. It merely expressed the view whether the offender had rendered himself liable to the jurisdiction of a Criminal Court. According to that decision the critical question to be decided being what was the nature of the proceedings which were taken by Civil Court, when exercising powers under Section 476 of the Code it could not be called 'criminal' when the very object of starting them was to decide whether a criminal complaint should or should not be lodged.
24. A Division Bench of this Court held, in the case of Nasaruddin Khan v. Emperor, reported in (1926) ILR 53 Cal 827: 28 Cri LJ 92, while deciding the question whether an appeal filed under Section 476B of the Code before a Civil Court would be governed by the Code of Civil Procedure or by the Code of Criminal Procedure:
No doubt the appeal in this case is one which is governed by Section 476B of the Criminal P.C, but the very words used in Section 476B of the Criminal P.C. indicate with sufficient clearness that the Court to which the appeal lies is one to which the Court making or filing the complaint is subordinate: in other words, if it is a civil Court which has made an order under Section 476 of the Criminal P.C. the appeal against such an order must lie to and be heard by the authority or tribunal to which such civil Court is subordinate. It follows, therefore, that the original order, having been made by a Munsif in a civil suit, the appeal against an order by the Munsif under Section 476 of the Criminal P. C, lay to the District Judge to from the Munsif was subordinate. Therefore, it would follow that, although the appeal itself is one which is allowed By the Code of Criminal Procedure, the appeal must be heard by the District Judge to whom the Munsif is subordinate, i.e., by an appellate Court exercising civil appellate jurisdiction. It follows, therefore, that the procedure governing an appeal of this description is one which is to be sought for within the four corners of the Code of Civil Procedure.
25. Relying upon the judgments in the case of Kumaravel Nadar 1940-41 Cri LJ 769 (Mad) (FB) (supra) and in the case of Har Prasad Das 1913-17 Cal WN 647 (supra) a single Judge of this Court also took the view that the procedure to be followed while dealing with an application under Section 476 of the Code was that of the Code of Civil Procedure and not of the Code of Criminal Procedure (Nadia Zilla Parishad v. Santimov Biswas. (1980) 1 Cal LJ 564 : 1980 Cri LJ 531.
26. On the above discussions, we must hold that the learned Judge was fully justified in invoking the Code of Civil Procedure and for that matter the specific provision of Order 9, Rule 9 thereof in restoring the application filed by the opposite party under Section 476 of the Code. The instant application therefore fails and the Rule is discharged .
B.N. Maitra. J.
26. I agree.