Calcutta High Court (Appellete Side)
Sri Rabindra Nath Bag vs Sri Partha Sarathi Bag & Ors on 4 November, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrenda Nath Banerjee
C.O. No. 446 of 2008
Sri Rabindra Nath Bag
Versus
Sri Partha Sarathi Bag & Ors.
For the Appellant/Petitioner: Mr Ram Krishna Bhattacharya.
For the Respondent/Opposite Party: Mr Anit Kumar Rakshit,
Mr Pasupati Sana.
Heard on: 27.08.2008.
Judgment on: 4th November, 2008.
Bhaskar Bhattacharya, J.:
This is an application under Article 227 of the Constitution of India and is directed against Order No.66 dated 4th January, 2008 passed by the learned Civil Judge (Senior Division), First Court, Hooghly, in Title Suit No.150 of 2003, thereby allowing an application under Section 195 of the Code of Criminal Procedure thereby lodging a complaint against the defendant and his son under Section 195(1)(a)(i) of the Code of Criminal Procedure before the Court of Additional Chief Judicial Magistrate at Chandernagore by treating the same as a written complaint by invoking poser under Section 340 of the Code of Criminal Procedure. This application has been assigned to this Bench by the Hon'ble Chief Justice on the basis of an order dated 16th June, 2008 passed by Jyotirmay Bhattacharya, J.
When this application was moved before Jyotirmay Bhattacharya, J, His Lordship released the matter from His Lordship's list and directed the same to be placed before the Hon'ble Chief Justice for passing necessary order of assignment before a Division Bench in view of the earlier decision of His Lordship in the case of Sudakshina Ghosh vs. Arunangshu Chakraborty reported in (2008) 1 WBLR (Cal) 695 wherein His Lordship held that a revisional application challenging an order passed by a Trial Judge on the application under Section 195 read with Section 340 of the Code of Criminal Procedure is required to be heard by a Division Bench of this Court in its civil revisional jurisdiction as per the provision of the Appellate Side Rules framed by this Court.
Consequently, the Hon'ble Chief Justice has assigned the matter before this Bench for disposal.
Before entering into the merit of the matter, we propose to consider whether an order lodging a complaint in exercise of power conferred under Section 340 of the Code of Criminal Procedure is really a revisable order to be heard by a Division Bench of this Court as a civil revisional application as held by His Lordship.
After going through the decision in the case of Sudakshina Ghosh vs. Arunangshu Chakraborty (supra), with great respect, we are unable to subscribe to the view taken by His Lordship in its entirety.
In the said case, as it appears from paragraph 26 of the reported judgement, challenging an order passed by the learned Additional District Judge, Fifth Court, Barasat, in Matrimonial Suit No.133 of 2001 thereby disposing of an application under Section 340 read with Section 195(1)(b)(i) of the Code of Criminal Procedure filed by the opposite party before His Lordship, an application under Article 227 of the Constitution of India was filed. By the said order, the learned Trial Judge, merely passed a direction upon the said opposite party to file the requisite documents for sending those to the Chief Judicial Magistrate, Barasat, and fixed another date for passing further order.
His Lordship, by relying upon the decision of the Full Bench of this Court in the case of Har Prasad Das vs. Emperor reported in 17 CWN 647 held that the application before His Lordship should be entertained in its civil revisional jurisdiction. His Lordship further held that in view of Rule 10 of Chapter II of the Appellate Side Rules, the same should be heard by a Division Bench as the application arose out of proceedings under Section 340 of the Code of Criminal Procedure and consequently, referred the matter to the Hon'ble Chief Justice for assigning the same before a Division Bench as a civil revisional application.
In the case of Har Prasad Das (supra), the question was whether an order passed by a civil or revenue Court under Section 476 of the old Code of Criminal Procedure (present Section 340) could be challenged under Section 439 of the then Code (present Section 401). It was held that the order made by a revenue authority as a Court in course of a judicial proceeding is "a court subordinate to the High Court" within the meaning of Section 115 of the Code of Civil Procedure and therefore, the civil revisional jurisdiction of this Court should be moved against such order.
It appears that the decision of the Full Bench, referred to by His Lordship, was decided at a point of time when the amendment of the then Code of Criminal Procedure of the year 1923 was not made incorporating Section 476B of the Code by virtue of which an order passed by a Court refusing to lodge a complaint or lodging a complaint under Section 195 of the Code of Criminal Procedure was made appealable for the first time. The said amended provision of Section 476B has been maintained in the subsequent Code of Criminal Procedure enacted in the year 1973 as Section 341 of the new Code. By virtue of the said provision, an order passed by a Court subordinate to High Court on an application for taking step under Section 340 thereby either refusing to make a complaint or making a complaint is an appealable one and the appeal should be heard by the superior Court in relation to the Court which passed such order as specified in Section 195(4) of the Code of Criminal Procedure.
Therefore, after the amendment of the Code of the year 1923, a civil revisional application was not maintainable against such order. It is well known that a civil revisional application, i.e. the application under Section 115 or Section 115A of the Code of Civil Procedure against an order passed in the proceedings is barred if the order sought to be impugned is an appealable one. Therefore, the decision of the Full Bench in the case of Har Prasad Das (supra) is no longer good law after the amendment of the Code of Criminal Procedure of the year 1923.
However, in order to maintain an appeal in terms of Section 341 of the Code of Criminal Procedure, the order impugned must be either an order refusing to make a complaint or an order actually making a complaint. In the case of Sudhakrishna Ghosh (supra), as it appears from paragraph 26 of the judgement, the learned Trial Judge, merely passed a direction upon the opposite party of the said application under Article 227 of the Constitution of India to file the requisite documents for sending those to the Chief Judicial Magistrate, Barasat, and fixed another date for passing further order. Such an order is, however, not appealable under Section 341 of the Code. In this connection, we may refer to the decision of the Supreme Court in the case of Surendra Gupta, vs. Smt. Bhagwan Devi and another reported in AIR 1996 SC 509. In that case, proceedings for declaring vacancy under Section 12 of the U.P. Buildings Act were initiated by the landlord against his tenant. Such an application was decided in favour of the landlord. In appeal, the said order was set aside and the appropriate authority was directed to decide the application afresh. The tenant, apart from pursing his remedy under the Act, filed an application before the Additional District and Sessions Judge, the appellate authority under the said Statute, under Section 340, Cr. P. C. for filing complaint against the Rent Control and Eviction Officer, the landlord and other authorities for using forged documents. The application was dismissed on February 17, 1977 as it was not pressed. It was further observed that even otherwise no prima facie case was made out. Later on, the tenant moved another application under Section 340 of the Code. It was decided on June 1, 1981 after decision of the appeal under the Rent Control Act. The order is extracted below:-
"CALLED OUT-Sri Dayanand Swaroop is present. Opposite party was not informed regarding the application for fixing early date, so from O. Ps. no one turned up. Heard Sri Dayanand Swaroop. That this Court being an appellate Court has already decided the appeal No. 82 of 1975 Bhagwan Devi v. Surjeet Kaur, hence it would be proper to send this file to the Court of Rent Control and Eviction Officer, Bulandshahr for filing complaint against the above said five persons under Section 200/202/245/197/34, I. P. C. or in any other proper section."
The applicant approached the High Court against this order by way of revision under Section 482, Cr. P. C. The High Court did not enter into merits as, according to it, the order being appealable under Section 341, the revision was not maintainable.
Against the said decision, the aggrieved party before the High Court went to the Supreme Court. The Supreme Court in allowing the appeal held as follows:
"The language of the section is plain and simple. The right of appeal is conferred against filing of complaint. What is a complaint is clear from Clause (d) of Section 2 which reads as under:-
"Section 2(d)-"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report."
A complaint thus could be filed only before the Magistrate. From the order Dated 1-6-1981 it is clear that it only sent the file to the Rent Control Officer to file the complaint. The appellant had approached the High Court against this order. The application under Section 482, Cr. P. C. was not filed against filing of complaint but against direction to file complaint. It could not be treated as complaint. Further Section 340 (3) of Cr. P. C. requires that a complaint made under the Section could be signed in cases other than the one filed by the High Court by the presiding officer of that Court. The order of the Addl. Distt. and Sessions Judge thus could not be construed as complaint. No. appeal could be filed against it under Section 341, Cr. P. C. In the result this appeal succeeds and is allowed. The order of the High Court is set aside. The matter is remitted back to it for deciding the application under Section 482 afresh on merits in accordance with law." In view of the aforesaid decision of the Supreme Court, the order impugned in the case of 'Sudhakrishna Ghose' where instead of lodging complaint, direction was given to the applicant to file requisite documents for sending to the Court of Chief Judicial Magistrate, could not be said to be an appealable one within the meaning of Section 341 of the Code and consequently, an application under Article 227 of the Constitution of India was maintainable. His Lordship, however, neither relied upon the aforesaid decision of the Supreme Court nor did follow the reason indicated therein but sought support from the decision of the Full Bench in the case of Har Prasad Das (supra) which is no longer the authority for the proposition that an order lodging or refusing to lodge a complaint in exercise of power under old Section 476 of the Code is a revisable one after the incorporation of Section 476B by way of amendment of the Code in the year 1923. In the case of Surendra Gupta (supra), although the order impugned was passed by the Additional District Judge as an appellate authority in a Rent Control Proceeding which is of a civil nature, the Supreme Court remanded the matter to the High Court to consider the application under Section 482 of the Code of Criminal Procedure on merit, inevitably, by invoking its criminal jurisdiction. Such direction is patently contrary to the principle laid down by the Full Bench in the case of Har Prasad Das (supra), where the Full Bench opined that when a civil or revenue Court exercised power under Section 476 (present Section 340), such decision could not be dealt with by a Bench exercising criminal jurisdiction but should be entertained in civil jurisdiction. Since in this case, this matter has been specifically assigned to this Bench by the Hon'ble Chief Justice, the aforesaid question is beside the point and as such, we refrain from going into the question whether this application should be dealt with by a Bench taking criminal matters. We are, at this stage, quite alive that in case of an appeal under Section 341 against order lodging or refusing to lodge complaint, the position is quite different because the jurisdiction of the appellate Court in an appeal is determined explicitly in terms of Section 195(4) of the Code as provided in Section 341(1). (See Krishna Mukehrejee vs Narayan Mukherjee and others reported in 2006(1) CHN 6).
We, however, agree with Jyotirmay Bhattacharya, J. that in view of Rule 10 of Chapter II of the Appellate Side Rules, applications arising out of proceedings under Section 195 or 340 of the Code should be heard by a Division Bench.
The present application under Article 227 of the Constitution of India has, however, been filed against an order actually lodging complaint and accordingly, is clearly appealable under Section 341 of the Code and thus, the decision of Jyotirmay Bhattacharya, J. in the case of Sudhakrisna Ghosh (supra), holding that civil revisional jurisdiction is the appropriate remedy, expressed in connection with an application under Article 227 of the Constitution of India filed against an order passing direction for filing of requisite documents for sending those to the Chief Judicial Magistrate and fixing another date, cannot have any application to the facts of the present case.
We are quite conscious that notwithstanding existence of alternative remedy by way of an appeal, a High Court can entertain an application under Article 227 of the Constitution of India under certain special circumstances, e.g. when the order impugned is passed on the face of it by an authority having no jurisdiction or apparently by not following the principles of natural justice or due to the obvious mistake of the Court on the face of record, such as, taking a matter on a date not fixed for hearing in the absence of the aggrieved party. In the case before us, no such special circumstance exists justifying entertainment of this application under Article 227 of the Constitution of India despite existence of an efficacious alternative remedy by way of an appeal. We, accordingly, dismiss this application only on that ground.
We make it clear that the dismissal of this application on the aforesaid ground will not stand in the way of the petitioner in seeking appropriate remedy before appropriate forum in accordance with law.
Let the certified copy of the order impugned be returned to the learned advocate for the petitioner.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)