Patna High Court
Babujan Misir And Anr. vs Sheo Sahay Chaudhury And Ors. on 20 June, 1918
Equivalent citations: 48IND. CAS.348, AIR 1918 PATNA 138
ORDER Mullick, J.
1. The question before us is whether two petitions of appeal presented respectively by Babujan Misser and Kanto Chaudhury against an order, dated the 22nd April 1918, made by Mr. Justice Imam, a learned Judge of this Court, can be maintained under the law.
2. It is contended on behalf of the petitioners that the order of the learned Judge is appealable under clause 10 of the Letters Patent of this Court. Notice was issued by a Division Bench of this Court upon the respondents named in the petition to show cause why the appeals should not proceed. Cause is now shown before us by Mr. Sircar while Mr. Das appears on behalf of the petitioners.
3. The order of Mr. Justice Imam was made under the following circumstances.
4. Two oases are now pending in the Court of a Magistrate in the District of Bhagalpur, in which Babujan and Kantoo are respectively the complainants and Shew Sahay and others are the accused and in which charges have been framed under Sections 379 and 143, Indian Penal Code, for theft of paddy in respect of certain disputed land.
5. In January 1917 proceedings were instituted under Section 145, Criminal Procedure Code, in respect of these lands between Deo Nandan as the first party and the above-mentioned Shew Sahay Choudhary as the second party, the former claiming under a mortgage and the latter resisting the possession delivered to the former by the Civil Court in enforcement of that mortgage. In February 1917 the possession of Deo Nandan was confirmed, but upon an application to this Court that order was set aside and the case was re-opened with a direction to add certain persons as parties. The further inquiry thus directed is still pending. The complainant in each of the two above-mentioned theft oases claims as tenant under Deo Nandan.
6. An application was made by the accused before the Magistrate trying the theft oases for the stay of the proceedings till the disposal of the case under Section 145, Criminal Procedure Code, but was refused An application in revision was then made to the District Magistrate with a similar result. Then an application for revision was made ' to this Court and was heard by Mr. Justice Imam sitting alone as a Judge of this Court, and on the 22nd April last he made an order directing that the proceedings in the trial under Sections 379 and 143, Indian Penal Code, should be stayed pending the decision in the case under Section 145, Criminal Procedure Code.
7. The point which we have now to determine is whether an appeal under the Letters Patent lies to this Court against Mr. Justice Imam's order.
8. The matter clearly depends upon clause 10 of the Letters Patent of the Patna High Court, the material portion of which is as follows: " And We do further ordain that an appeal shall lie to the High Court of Judicature at Patna from the judgment (not being an order made in the exercise of revisional jurisdiction in a case, which has been called for by the said Court, and not being a sentence or order passed or made in the exercise of criminal jurisdiction) of one Judge of the said Court, or of one Judge of any Divisional Court constituted in pursuance of Section 108 of the Government of India Act of 1915."
9. Mr. Das contends that the order was not made in the exercise of revisional jurisdiction, but in the exercise of the Court's powers of general superintendence under Section 107 of the Government of India Act of 1915. He also urges that in order to bar the right of appeal the order must be made not only in the exercise of revisional jurisdiction but also in the exercise of criminal jurisdiction.
10. In my opinion his contention cannot be accepted. The words within brackets should, in my opinion, be paraphrased as follows: "Except an order made in the exercise of revisional jurisdiction in a case which has been called for by the said Court and except a sentence or order passed or made in the exercise of criminal jurisdiction." If the contention put forward by Mr. Das were correct, then the words " not being an order made in the exercise of criminal revisional jurisdiction in a case, which has been called for by the said Court " would have been quite sufficient for the purposes of the draftsman.
11. Again comparing this clause with the corresponding clause in the Letters Patent granted to the High Court of Calcutta in 1865, it is clear that the intention of the draftsman was to restrict the right of appeal by prohibiting appeals (1) in respect of sentences or orders passed or made in the exercise of criminal jurisdiction as before, and (2) in respect of orders made in the exercise of revisional jurisdiction in other oases, namely, civil oases.
12. The result is that whereas in the Calcutta High Court a Letters Patent appeal lies against the judgments of a Judge sitting alone in the exercise of civil revisional jurisdiction, in the High Court of Patna no such appeal lies.
13. On the other hand, the effect of the interpretation suggested by Mr. Das would be that the right of appeal has been not restricted but extended by the Letters Patent of this Court and that not only is there an appeal against civil judgments in revision as before but that a new right of appeal has been conferred against judgments passed in the exercise of original and appellate criminal jurisdiction. In my opinion the language of the clause does not favour such an interpretation.
14. Furthermore clause 10 appears under the heading of civil jurisdiction. It could not appropriately confer under that heading a right of appeal in a matter connected with the exercise of criminal jurisdiction. Obviously it intends to define the limits of the right of appeal against certain judgments on the civil side only.
15. Therefore, in the present oases the order of Mr. Justice Imam having been clearly made in the exercise of criminal jurisdiction the petitioners have no right of appeal.
16. In this view it is unnecessary to decide whether or not the order of Mr. Justice Imam was one made in the exercise of revisional criminal jurisdiction, but if it were necessary to decide that point, I would say that his order was in revision of the order of the District Magistrate. The revisional powers conferred by the Criminal Procedure Code are sufficiently wide to justify his interference in a matter of this kind.
17. But there, is another ground which is, in my opinion, completely fatal to Mr. Das. In my opinion the order staying proceedings is not a judgment within the meaning of clause 10 of the Letters Patent. The order contains no final adjudication of the rights of the parties. To use the language of Sir Richard Couch, it is not a decision which affects the merits of the question between the parties by determining some right or liability.[ The Justices of the Peace for the Town of Calcutta v. The Oriental Gas Co. 17 W.R. 364 : 8 B.L.R. 433. It merely directs whether one case shall have priority in point of time over another. Therefore, there being no judgment, no appeal lies.
18. The result is that both the petitions of appeal must be dismissed with costs. Hearing fee one gold mohur in each case.
Thornhill, J.
19. I agree.