Patna High Court
Ramchander Mistry vs The State on 12 May, 1967
Equivalent citations: AIR1968PAT122, 1968(16)BLJR314, 1968CRILJ365, AIR 1968 PATNA 122, 1968 BLJR 314
JUDGMENT Shambhu Prasad Singh, J.
1. This application in revision is directed against an order of the Fourth Additional Sessions fudge of Patna allowing the appeal under Section 476-B of the Code of Criminal Procedure and directing the Magistrate to proceed against the petitioner under Section 211 of the Indian Penal Code.
2. On 22-4-1961 the petitioner filed an application before the Sub-divisional Magistrate, Patna Sadar, stating inter alia therein that the six persons named in that petition had stabbed to death the wife of one of them Dinesh Mahto. The petition was filed through a lawyer and it was prayed that local Police authorities be directed to seize the dead body before it was too late to arrest the persons (named in the petition) for trial. The petition was referred to Police and a case was instituted on the basis of it. The Police submitted final report as in their opinion it was a case of suicide and not of murder. Thereafter an application was filed on behalf of the Opposite Party before the Sub-divisional Magistrate praying that the petitioner be asked to show cause why he should not be proceeded under Section 211 of the Indian Penal Code. The learned Sub-divisional , Magistrate by his order dated 6-11-1966 refused to make a complaint for prosecution of the petitioner under Section 211 of the Indian Penal Code as in his opinion the petitioner had reasonable ground for Delieving the charge to be true. An appeal against the said order was preferred before the Sessions Judge of Patna which was numbered as Criminal Appeal No. 637 of 1961 and ultimately heard by the Fourth Additional Sessions Judge who passed the order as aforesaid.
3. Mr. B.K. Banerjee appearing on behalf of the petitioner has submitted the following two points for our consideration:--
(i) that an appeal under Section 476-B of the Code of Criminal Procedure could be heard only by the Sessions Judge and the Additional Sessions Judge had no power to hear the appeal.
(ii) that the appellate Court should not have directed the Subordinate Court to file the complaint as according to the provisions of Section 476-B of the Code of Criminal Procedure, It is the appellate Court which mast prefer the complaint itself.
4. In support of his first contention Mr. Banerjee has drawn our attention to a recent unreported Full Bench decision of this Court in Civil Revn. Nos. 757 of 1965 and 130 of 1967, Mt. Rampati Kuer v. Jadunandan Thakur, decided on 23rd of March 1967 = (AIR 1968 Pat 100). It was held in that case after discussion of the relevant authorities and provisions of law that the order of transfer by the District Judge of Muzaffarpur, of some criminal appeals under Section 476-B of the Code of Criminal Procedure, to the Additional District judge of the place, was invalid and the appellate orders passed by the Additional District Judge were without jurisdiction. The orders which were subject-matter of the appeals before the District Judge and the Additional District Judge were passed by a Munsif, obviously not by a Magistrate and the learned Chief Justice who delivered the leading judgment in the Full Bench observed at our place as follows:--
"The analogy of transfer of a criminal appeal by a Sessions Judge to an Additional Sessions Judge under Section 409, Cr.P.C. may not apply, because both the Sessions fudge and Additional Sessions Judge constitute the Court of Session as provided In Section 6, read with Section 9, Cr.P.C."
This observation appears to have been made to make a distinction between an Additional District Judge and an Additional Sessions Judge and implies that while an Additional Sessions Judge may be a superior Court of a Magistrate within the meaning Section 476-B of the Code of Criminal Procedure, an Additional District Judge cannot be so.
5. Section 476-B of the Code of Criminal Procedure lays down that an appeal against filing of a complaint or an order of refusal to make a complaint under Section 476 of the Code, would lie to the Court which the Court making a complaint or refusing to make a complaint, is subordinate within the meaning of Section 195 (3) of the Code. Section 195 (3) provides that for the purposes of Section 195 a Criminal Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable sentences of such former Court; and according to Section 408 of the Code any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or any other Magistrate, or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by any Magistrate, may appeal to the Court of Session. Thus, as appeals from sentences passed by a Magistrate ordinarily lie to the Court of Session, it is that Court to which a Court of Magistrate is subordinate within which the meaning of Section 195 (3) of the Code. But in the case of Kameshwar Singh v. Dharamdeo Singh, AIR 1957 Pat 375, a Full Bench of this Court held that the words "Court of Session" occurring in Section 408 refer only to the Court of Session presided over by the Sessions Judge and an Additional Sessions Judge or an Assistant Sessions Judge, as a Judge of the Court of Session has no powers to receive and admit appeals filed in the Court of Session. It was contended that, in view of the rule laid down in Kameshwar Singh's case, AIR 1957 Pat 375 (FB), it is the Sessions Judge of the division alone to whom Courts of Magistrates are subordinate within the meaning of Section 195 (3) of the Code of Criminal Procedure and an appeal under Section 476-B could be held only by him and not by an Additional Sessions judge or an Assistant Sessions Judge.
6. The question which arose for decision in the Full Bench case of Kameshwar Singh, AIR 1957 Pat 375, was whether an appeal against an order of conviction and sentence passed by a Second Class Magistrate could be filed before an Assistant Sessions Judge inasmuch as according to Section 408 of the Code of Criminal Procedure such appeals lie to the Court of Session and by virtue of the provisions of Sections 6 and 9 of the same Code an Assistant Sessions Judge too is a Judge of the Court of Session. It was held that the appeal could not be filed before an Assistant Sessions Judge. Filing of appeals to an Additional Sessions Judge or an Assistant Sessions Judge will lead to chaos and administrative difficulties and provide an opportunity to the appellant to choose his own Court for the purposes of filing the appeal The expression "Court of Session in Section 408 of the Code of Criminal Procedure, therefore, could not have been assigned any other meaning than one assigned to them by the Full Bench in Kameshwar Singh's case, because, no Court of Justice is expected to interpret the law in such a way which may lead to chaotic conditions. Apart from it, other provisions of the Code of Criminal Procedure referred to by the Full Bench, particularly subsection (2) of Section 409 of the Code, which says that an Additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeal as the State Government may by general or special order direct or as the Sessions Judge of the division may make over to him. leaves no room for doubt that an Additional Sessions Judge or an Assistant Sessions Judge in absence of any order of the State Government cannot receive an appeal at the riling stage. They can hear an appeal only when it was made over to them by the Sessions Judge after it is filed before him. In the circumstances, the decision in Kameshwar Singh's case, AIR 1957 Pat 375 (FB), can be no authority that an appeal under Section 476-B of the Code cannot be heard on transfer by an Additional Sessions Judge. It can be an authority only for the proposition that ordinarily such appeals should be filed before the Sessions Court only when it is presided over by the Sessions Judge.
7. The question whether a Court of Magistrate is subordinate to only the Sessions Judge or also to an Additional Sessions Judge within the meaning of Section 195 (3) of the Code of Criminal Procedure did not arise for decision in Kameshwar Singh's case, AIR 1957 Pat 375 (FB). Both Sections 195 (3) and 476-B of the Code of Criminal Procedure speak of a Court to which another Court and not of a Judge to whom another Judge may be subordinate and as the Sessions Judge and the Additional Sessions Judge or Judges of the same Court of Session of the division, the Court of Magistrate against the order of which an appeal Is filed, is subordinate to the Court of Session of which they are Judges. In other words, it is subordinate to both of them within the meaning of Section 195 (3) of the Code. The appeal has to be filed only to the Sessions Judge because the expression "the Court of Session" in Section 408 of the Code, for the reasons assigned in Kameshwar Singh's case AIR 1957 Pat 375 (FB), mean "the Court of Session presided over by the Sessions Judge". However, even if it be assumed that because of the decision in Kameshwar Singh's case, AIR 1957 Pat 375 (KB), a Court of Magistrate is subordinate only to the Sessions Judge within the meaning of Section 195 (3), it cannot be said that an appeal under Section 476-B of the Code, after it is filed before the Sessions Judge, cannot be heard by an Additional Sessions Judge on transfer. There is nothing in the language of Section 476-B itself to justify such argument Section 476-B is as follows:--
" Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under Section 476 or Section 476-A, 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 (S), mid the superior Court may, thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, it sell make the complaint which the subordinate Court might have made under Section 76, and, if it makes such complaint, the provisions of that section shall apply accordingly."
The expression "superior Court" in the section does not necessarily mean only the presiding Judge of that Bench of the Court of Session to which the appeal may be filed and, to whom the Court, against whose order the appeal may, be filed is subordinate within the meaning of Section 195 (3) of the Code. The expression is wide enough to mean the Judge before whom the appeal may be filed and any other Judge of the same Court to whom it may be transferred by the former or any other Judge to whom it may be transferred to by a higher Court, according to law. If "superior Court" is construed to mean only the Sessions Judge, It can plausibly be argued that High Court too may have no power to transfer an appeal under Section 476-B from the Sessions Judge to another Judge of the same Court of Session or of another Court of Session.
8. Though it is not expressly provided in Section 476-B, this is now well settled that the Court to which an appeal is filed under that section, can exercise the powers of an appellate Court under Chapter XXXI of the Code. In a Full Bench decision of the Madras High Court, (Koduru) Janardana Rao v. P. Lakshmt Narasamma, AIR 1934 Mad 52 (FB), and in a Division Bench case of this Court, Kunjo Chaudhary v. Emperor, reported in AIR 1938 Pat 99, it was held that the provisions of Chapter XXXI of the Code do apply to appeals under Section 476-B of the Code and that an order of remand passed by the appellate Court was legal and valid. In another Full Bench case of mis Court, Dhup Narain Singh v. The State, reported in AIR J.954 Pat 76 (FB), which was cited before the recent Full Bench and correctness of which was not challenged, it was held that exercise of jurisdiction by the appellate Civil Court under Section 476-B will be regulated by the provisions of Sections 419, 421, 422 and 423 of Chapter XXXI of the Criminal Procedure Code. There appears no reason why the provisions of Section 409, which is also in Chapter XXXI of the Code, with regard to transfer of appeals, should not apply to appeals under Section 476-B from orders of subordinate Criminal Courts. The language of Section 109 is also general. There is nothing in it to limit its application to appeals under Chapter XXXI only. The language is wide enough to cover all appeals to the Court of Session or Sessions Judge, be they under Chapter XXXI or Section 476-B of the Code. The decision in the recent Full Bench is of no avail to the petitioner inasmuch as the question vvhethe' an appeal from order of a Magistrate under Section 176-B of the Code, could be transferred to an Additional Sessions Judge or not, was expressly left open.
9. It was contended by learned counsel for the petitioner that inasmuch as in the recent Full Bench decision it was observed by the learned Chief Justice that unless the functions of receiving appeals are assigned to the Additional District Judges under Sub-section (3) of Section 21 of the Bengal, Agra and Assam Civil Courts Act, appeals will not directly lie to him and he will not be an appellate Court for the purpose of Section 476-B of the Code of Criminal Procedure, as the Bengal, Agra and Assam Civil Courts Act also provides for transfer of an appeal by the District Judge to a Subordinate Judge and that the Additional District Judge can discharge any of the functions of the District Judge which may be assigned to him by the latter and while discharging those functions he shall be exercising the same powers as the District Judge and as these provisions-are more or less similar to that of Section 409 of the Code of Criminal Procedure, it follows that an Additional Sessions Judge too will not be an appellate Court for the purpose of Section 476-B. It was further contended that the observation quoted above, that the analogy of transfer of a criminal appeal to an Additional Sessions Judge may not apply to appeals under Section 476-B against orders of Civil Courts, was made because the Full Bench decision of the Court in Kameshwar Singh's case, AIR 1957 Pat 375, was not placed before the recent Full Bench.
On the other hand, it was contended on behalf of the opposite party that the question before the Supreme Court in the case of Kuldip Singh v. State of Punjab, AIR 1956 SC 391, was only whether an appeal could be filed before the Additional District Judge and not whether it could be heard by him on transfer if it is filed before the District Judge and the decision in the recent Full Bench case is not fully supported by it. As to the contentions of the petitioner's counsel, it cannot be assumed that the learned Judges who heard the Full Bench case were not aware of the decision in Kameshwar Singh's case, AIR 1957 Pat 375 (FB). The difference between the scheme of the Code of Criminal Procedure and the Bengal, Agra and Assam Civil Courts Act, for the purposes of the decision of the question in controversy, is manifest. Whereas according to the Code of Criminal Procedure the Sessions Judge and the Additional Sessions Judge arc Judges of the same Court of Session of the division ; according to the Bengal, Agra and Assam Civil Courts Act, the District Judge and the Additional District Judge constitute two different Courts. The contentions of learned counsel for the Opposite Party do riot deserve any consideration inasmuch as the question to be decided in the case before us is about Criminal Courts and not about Civil Courts. For the foregoing reasons, in my opinion, there is no substance in the first contention of Mr. Banerjee.
1O. There is substance, however, in the second contention of learned counsel for the petitioner. The language of Section 476-B of the Code of Criminal Procedure is clear on the point. The superior Court itself has to make the complaint which the subordinate Court might have made under Section 476. The contention is also supported by rule laid down by a Division Bench of Calcutta High Court in the case of Manir Ahmed v. jogesh Chantira Roy, reported in AIR 1929 Cal 195, where it was held that the only person who was competent Lo make the complaint was the District Judge himself and the order directing the lower Court to file the complaint was without jurisdiction and must be set aside; and by a single Judge of the Madras High Court in the case of Kuppuswami Rao v. Sathiapria, reported in AIR 1931 Mad 768.
11. In paragraph 35 of their judgment in Kuldip Singh's case, their Lordships of the Supreme Court have observed as follows:- --
" Of coarse, the District Judge could have sent it to the original Court or to the successor Judge of that Court if there was one, but he sent it to a Court without jurisdiction, so his order was ineffective and the subsequent order of Mr. Pritam Singh was without jurisdiction."
It can be contended, on the basis of above-quoted observation of the Supreme Court that if the District Judge in that case could have powers to send back the case to the original Court, there is nothing wrong in the order of the Additional Sessions Judge in directing the Magistrate to proceed against the petitioner under Section 211 of the Indian Penal Code. A case can be remanded only if some further enquiry is to be made in the matter and not for merely filing a complaint when Section 476-B itself specifically says that the complaint is to be made by the superior Court itself which hears the appeals. In my opinion, therefore, these observations of the Supreme Court do not affect in any way the rule laid down in the aforesaid two cases of Calcutta and Madras, High Courts and the order of the Additional Sessions Judge directing the Sub-divisional Magistrate to proceed against the petitioner under Section 211 of the Indian Penal Code cannot be maintained in absence of a complaint by the appellate Court itself.
12. Accordingly, the petition is allowed, the order of the Additional Sessions Judge allowing the appeal is set aside and the Rule is made absolute and the case is remanded for rehearing in accordance with law.
Ramratna Singh, J.
13. I agree I would, however, like to add a few sentences regarding the question whether an additional Sessions Judge, when he hears an appeal is covered by the expression "superior Court" in Section 476-B of the Code of Criminal Procedure. Under Section 9 of the Code the "Court of Session" is one Court and it may be presided over by the Sessions Judge, Additional Sessions Judges and Assistant Sessions Judges. The analogy of an Additional District Judge is not applicable, because an Additional District Judge is not a Judge of the Court of District Judge. An Additional Sessions Judge hears an appeal, in accordance with the provision contained in Section 409 of the Code, which lays down inter alia that an appeal to the "Court of Session" shall be heard by the Sessions Judge or by an Additional Sessions or by an Assistant Sessions Judge, Of course, under Section 408 of the Code, an appeal can be entertained only by that Bench of the Court of Session which is presided over by the Sessions Judge; but the appeal can be heard and disposed of also by the Bench which is presided over by the Additional Sessions Judge under Section 409. In either case, however, the Court is the same, namely, "Court of Session", in the first case presided over by the Sessions Judge and in the second case presided over by the Additional Sessions Judge. This view is sup ported by the decisions in AIR 1919 Pat 362, Kusum Sao v. Janak Lal and AIR 1920 Bom 415, in re, Sikandar Khan Mahomedkhan, and it is in consonance with the observation of the Supreme Court in the case reported in AIR 1956 SC 391, that the position of the Court of District Judge and the Court of Additional District Judge is "a very different thing from the administrative distribution of work among the Judges of a single Court".