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Ram Charan Chandra and ors. Vs. Tirupulla Sheikh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.1007
AppellantRam Charan Chandra and ors.
RespondentTirupulla Sheikh and ors.
Cases ReferredRam Prosad Malla v. Raghular Mollan
Excerpt:
sanction to prosecute - refusal of sanction by munsif--appeal to the district judge--transfer of appeal to sub-judge--jurisdiction of sub-judge to hear appeal--civil procedure code (act v of 1908), section us--bengal, north-western provinces and assam civil courts act (xii of 1887), sections 21, 22--criminal procedure code (act v of 1898), section 195, clauses (6), (7). - .....penal code was refused by the munsif. from this order an appeal was referred evidently to the district judge. this appeal was heard by the subordinate judge who reversed the order of the munsif and granted sanction. the plaintiff obtained this rule for setting aside the order of the subordinate judge.2. it is contended by the learned vakil for the petitioner that the subordinate judge had no jurisdiction to make the order that he has made and on the merits that the order of the munsif refusing sanction was a proper one and should not have been set aside, as the courts which decided the bond-suit went upon the failure of the plaintiff to prove his case. the learned vakil for the opposite party contends that we cannot go into the second question as we have no jurisdiction to interfere.....
Judgment:

D. Chatterjee, J.

1. In this case a Munsif dismissed a suit on a bond and the decree was upheld by the Appellate Court. An application for sanction to prosecute the plaintiff for offences under Sections 463 and 471 of the Indian Penal Code was refused by the Munsif. From this order an appeal was referred evidently to the District Judge. This appeal was heard by the Subordinate Judge who reversed the order of the Munsif and granted sanction. The plaintiff obtained this Rule for setting aside the order of the Subordinate Judge.

2. It is contended by the learned Vakil for the petitioner that the Subordinate Judge had no jurisdiction to make the order that he has made and on the merits that the order of the Munsif refusing sanction was a proper one and should not have been set aside, as the Courts which decided the bond-suit went upon the failure of the plaintiff to prove his case. The learned Vakil for the opposite party contends that we cannot go into the second question as we have no jurisdiction to interfere under Section 195 of the Criminal Procedure Code and the Rule must be discharged, unless we uphold the first contention in which case we may have jurisdiction under Section 115 of the Civil Procedure Code. We shall deal with the first question first. Section 195, Clause 6, of the Criminal Procedure Code provides 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.' Clause 7 provides that every Court shall be deemed subordinate only to the Court to which appeals from the former Court ordinarily lie.' Chapter III of the civil Courts Act, which is headed as dealing with ordinary jurisdiction, contains Section 21 of whicb Clause 2 says that 'save as aforesaid, an appeal from a decree or order of a Munsif shall lie to the District Judge.' The saving is in respect of any provision to the contrary in any other Act and is not material in this case, as there is no suggestion that there is any such special enactment applicable to it. Clause (4) of Section 21 provides that the High Court may, under certain circumstances, allow appeals lying to the District Judge to be preferred to the Court of a particular Subordinate Judge. That also is not material, as there is no suggestion that there is any such special order applicable to the present case. No appeal lay to the Subordinate Judge and he was, therefore, not the authority which could grant or revoke a sanction refused or granted by the Munsif. It is true that under Section 24(1), Clause (a), of the Civil Procedure Code, the District Judge can transfer any suit, appeal or proceeding pending before him to any Subordinate Court competent to try it, but the Subordinate Judge was not competent to try this appeal as he was not the authority to which the appeal lay. The order of the Subordinate Judge was, therefore, incompetent.

3. As regards the second question, there is some conflict of authority. The Allahabad High Court has held that under Section 195, Clause (6), there can be only one proceeding: by way of appeal from an order giving or refusing a sanction -and as soon as the Appellate Court makes an order either way, there is no further appeal. See Emperor v. Serhmal A.W.N. (1908) 102 : 5 A.L.J. 247 : 3 M.L.T. 377 : 7 Cr. L.T. 389 : 30 A. 343; Kanhai Lal v. Chhadammi Lal 31 A. 48 : 6 A.L.J. 1 : A.W.N. (1908) 290 : 5 M.L.T. 55 : 9 Cr. L.J. 63 : 1 Ind. Cas. 5. The Madras High Court has decided that an appeal lies to the High Court not only in cases where the first Court refuses sanction and sanction is granted by the Court to which that Court is immediately subordinate, but also in cases where the first Court grants sanction and the sanction is revoked by the Court to which that Court is immediately subordinate. See Mutu Swami Mudali v. Veeni Chetti 30 M. 382 : 17 M.L.J. 266 : 2 M.L.T. 239 : 6 Cr. L.J. 102. The learned Judges differ from the Calcutta ruling in Hamijuddi Mondal v. Damodur Ghose 10 C.W.N. 1026 : 4 Cr. L.J. 168 and agree with two subsequent Calcutta rulings Habibur Rahman v. Munshi Khodabux 11 C.W.N.195 : 5 C.L.J. 219 : 6 Cr. L.J. 29; Girija Sankar Roy v Binode Sheik 5 C.L.J. 222 : 5 Cr. L.J. 188. The fame point was raised in the case of Ram Prosad Malla v. Raghular Mollan 13 C.W.N. 1038 : 4 Ind. Cas. 6 : 37 C. 13 : 10 Cr. L.J. 454 but the learned Judges, whilst expressing an inclination in favour of the Madras view, supported as it was by some of the Calcutta cases, preferred to interfere under Section 622 of the old Civil Procedure Code. It is not necessary, however, to pursue this question further as our view on the first question is sufficient to dispose of this Rule.

4. The Rule is accordingly made absolute. We make no order as to costs,

N. Chatterjea, J.

5. I agree with my learned colleague in making the Rule absolute.

6. Under Section 21, Sub-section (2), of the Bengal, North-Western Provinces and Assam Civil Courts Act, an appeal from a decree or order of a Munsif ordinarily lies to the District Judge and not to the Subordinate Judge, There is no suggestion in this case that there is any special order as provided for in Sub-section (4) of that Section under which appeals could have been preferred to the particular Subordinate Judge who passed the order on appeal in the present case. Under Section 22(1), a District Judge, no doubt, may transfer to any Subordinate Judge under his administrative control any appeal pending before him from the decrees or orders of Munsifs. When an appeal transferred under Section 22(1) is withdrawn by the District Judge, he may either dispose of it himself or transfer it to a Court under his administrative control competent to dispose of it. The question of competency to dispose of an appeal does not arise when an appeal is transferred in the first instance to a Subordinate Judge under Section 21(l),and it seems, therefore, that a Subordinate Judge is competent to dispose of any appeal pending before the District Judge and transferred by him to the former.

7. But, under Section 195, Sub-section 6, of the. Criminal Procedure Code, the power of revoking or granting any sanction given or refused, is given to the authority to which the authority giving or refusing it is subordinate and Sub-section (7) provides that for the purposes of this Section every Court shall be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie. There is no doubt that the District Judge is the only Court to which appeals from an order of a Munsif ordinarily lie. For the purpose of Section 195, Criminal Procedure Code, therefore, a Munsif is not subordinate to a Subordinate Judge. A Subordinate Judge can dispose of any appeal transferred to him by the District Judge under Section 22(1) of the Civil Courts Act, but the power of revoking or granting sanction is given only to the Court to which an appeal lies. The power, therefore, cannot be exercised by a Subordinate Judge to whom an appeal does not lie, but who can only dispose of an appeal transferred to him by the District Judge.

8. In this view of the matter, the other questions raised in this Rule need not be considered.


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