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Vidyadhar and anr. Vs. Sita Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Revn. Nos. 14 and 15 of 1955
Judge
Reported inAIR1956HP2,1956CriLJ45
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439 and 476B; ;Constitution of India - Article 227; ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantVidyadhar and anr.
RespondentSita Ram and anr.
Advocates: D.N. Aggarwal, Adv.
DispositionPetitions rejected
Cases ReferredBehari Lal Sud v. Emperor
Excerpt:
- .....the view that the point was not considered. in the last resort, the high court may consider the point in revision, if it appears to have not been considered by the courts below'. it is obvious that if false evidence is given in a judicial, proceeding, it is certainly expedient, in the interest of justice, to launch a prosecution. 8. this plea must, therefore, fail. 9. in the next place, it was contended that the suit was filed through a mukhtar and the documents were also filed by him. it was further argued that the documents were produced in a 'bona fide' manner, i. e. without any intention to mislead the judge. therefore, it is argued that a prosecution was not indicated. it was also argued that the application for prosecution was made long after the plaint had beenreturned and.....
Judgment:

Ramabhadran, J.C.

1. These are two connected petitions, which are styled as petitions under Section, 439, Cr.P.C., read with Article 227 of the Constitution and Section 115, Civil P. C. The petitions arise under the following circumstances:--

2. The petitioner, Vidyadhar, filed a suit in the Court of the Subordinate Judge, Solan, on 19-12-1949 against Sita Ram, respondent 1, complaining of trespass and damage. There was a further allegation that the defendant was raising a wall, round the tank, with a view to construct a room there and the same was likely to cause obstruction to the water-pipes and the tank.

The plaintiff (Vidyadhar), therefore, sought a perpetual injunction restraining Sita Ram from committing the aforesaid acts of trespass and a mandatory injunction directing the defendant to demolish the structure erected by him. In support of his claim, the plaintiff filed a plan of the house and the garden showing the encroachments made by the defendant.

He also filed certain extracts from the Patwari's papers pertaining to the land in dispute. The Subordinate Judge, eventually, came to the conclusion that the suit was beyond his jurisdiction and, accordingly, on 9-8-1952, the plaint and documents, referred to above, were returned to the plaintiff for presentation to the proper Court.

In point of tact, however, the plaint was not presented to any other Court subsequently. On 8-1-1953, Sita Ram moved the Subordinate Judge, Solan, to launch a prosecution against the petitioner, as well as Mansa Ram Patwari and one Devi Singh under Section 193, I. P. C., on the ground that the plan and the revenue extracts, filed along with the plaint, had been fabricated.

The Subordinate Judge held an inquiry under Section 476, Cr. P. C., and came to the conclusion that the plan and the revenue extracts had been fabricated and, accordingly, directed the prosecution of the petitioner, as well as Devi Singh and Mansa Ram Patwari under Section 193, I. P C. (In respect of the plan Vidyadhar was to be prosecuted under Section 193, read with Section 109, I. P. C.).

Against these orders, Vidyadhar and Devi Singhwent up in appeal to the learned District Judgeof Mahasu under Section 476B, Cr. P. C. Theappeals were, however, rejected. Vidyadhar andDevi Singh now come up in revision.

3. As already stated, the petitions are styled as Ones under Section 439, Cr. P. C., read with Article 227 of the Constitution and Section 115, C. P. C.

4. Section 439, Criminal Procedure Code, has,obviously, no application here, because neither the District Judge, nor the Subordinate Judge, was acting as a. Criminal Court, when they passed the orders in question.

5. Similarly, Article 227 of the Constitution is not applicable here. That Article confers on the High Court powers of superintendence over Courts and tribunals throughout the State. In--'Waryam Singh v. Amarnath', AIR 1954 SC 215 (A), their Lordships of the Supreme Court pointed out that:

'The power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Cour,ts within the bounds of their authority and not for correcting mere errors'.

The authority of the Subordinate Judge of Solan to launch a prosecution against the petitioners and of the District Judge, in appeal, under Section 476B, Cr. P. C., to endorse that order cannot he disputed. Therefore, Article 227 will not help the petitioner.

6. there remains Section, 115, Civil P. C., i.e., powers of revision in civil' matters. Under Para. 35 (3), Himachal Pradesh (Courts) Order Section 115 of the Civil P. C. does not apply to this State. In its place, we have paragraph 35 of Himachal Pradesh (Courts) Order, which confers power of revision on this Court under certain circumstances. Further, under; para. 35 (b) of that Order it is open to this Court to interfere in revision, if there is an important question of law or custom, requiring further consideration. The question of custom does not arise here. We are, therefore, left with the question of law.

7. Learned counsel for the petitioner argued that the Subordinate Judge has not recorded a finding that it was expedient in the interests of justice to launch a prosecution against the petitioners. Consequently, it is urged that the order is bad. Reliance was placed, in this connection, on--'Y. Satyanarayana, In re, AIR 1929 Mad 74 (B)', wherein Reilly, J., observed as follows:

'Where an order, under Section 476 contains no finding, as required by that section, that it is expedient in the interests of justice that an inquiryshould be made into the alleged offences, nor any suggestion of reasons for such a finding, it is clearly insufficient. And its defects are not made good by the argumentative complaint which is sent to the Magistrate'.

Reliance was also placed on--'Surendra Nath v. Kumeda Charan Misra', AIR 1930 Cal 352 (C), where a Division Bench of that High Court observed that:

'There must be an express finding by the Court that 'it is expedient in the interest of justice' that a complaint should be made into the offence of giving false evidence under Section 476. Such an express provision for a finding to be recorded is not satisfied by inferences which may or may not be drawn from other findings of facts arrived at by the Court'.

This point was argued before the learned District Judge, who, while conceding that no such finding had been given by the Subordinate Judge, rightly remarked that the omission did not, 'ipso facto', render the order invalid. Reliance was placed by him (i. e. the District Judge) on--'Ram Prasad Ojha v. Mahesh Anand', AIR 1948 Pat 5 (D), where Reuben, J., held as follows:

'Although it is well established that the Courts must consider whether a prosecution is necessary in the interest of justice as required by Section 476, Criminal P. C., the failure to come to an express finding on the point does not necessarily render the order invalid.

It is sufficient if record shows that the Court applied its mind to the point and in a case where a grave offence is alleged to have been committed, would be unreasonable for the Court to take the view that the point was not considered. In the last resort, the High Court may consider the point in revision, if it appears to have not been considered by the Courts below'.

It is obvious that if false evidence is given in a judicial, proceeding, it is certainly expedient, in the interest of justice, to launch a prosecution.

8. This plea must, therefore, fail.

9. In the next place, it was contended that the suit was filed through a Mukhtar and the documents were also filed by him. It was further argued that the documents were produced in a 'bona fide' manner, i. e. without any intention to mislead the Judge. Therefore, it is argued that a prosecution was not indicated.

It was also argued that the application for prosecution was made long after the plaint had beenreturned and that, in any case, there is no chance,of conviction. Learned counsel for the petitionerscited--'Narain Singh v. Emperor', AIR 1948 All 287(E), where a Division Bench of that High Courtremarked that:

'No sanction should be granted, or' prosecution directed, unless there is a reasonable probability of conviction though the authority granting a sanction under section 195, or taking action under Section 476, should not decide the question of guilt or innocence'.

These matters have been considered by the Court of Appeal' and, sitting in revision, it is hardly necessary for me to go into them. I need only refer to--'Behari Lal Sud v. Emperor', AIR 1989 Lah 529 (F), where Bhide; J., observed that:

'Revision can only be granted, if there is some error of law, some irregularity, or some abuse of or failure to exercise jurisdiction. It is inadvisable to interfere in revision when two Courts have concurred in holding that a prosecution is in the interest of public policy'

10. The result is I reject both the petitions.


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