Calcutta High Court
Sudakshina Ghosh vs Arunangshu Chakraborty (Uday) on 16 January, 2008
Equivalent citations: 2008CRILJ1697, 2008 CRI. L. J. 1697, 2008 (1) CALCRILR 442, (2008) 64 ALLINDCAS 645 (CAL), (2008) 2 ALLCRILR 653, (2008) 2 CAL HN 133
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
ORDER Jyotirmay Bhattacharya, J.
1. The propriety of an order dated 5th June, 2004 passed by the learned Additional District Judge, 5th Court, at Barasat in Mat. Suit No. 133 of 2001, is under challenge in this application under Article 227 of the Constitution of India.
2. The impugned order was passed by the learned Trial Judge on the husband's application under Section 340 read with Section 195(1)(b)(i) of the Criminal Procedure Code. A confusion arose as to whether such an order is revisable by this Hon'ble Court in its Civil Revisional Jurisdiction or in its Criminal Revisional Jurisdiction, as two different Benches differed from each other as to the entertainability of this application on the said issue.
3. Justice Bhaskar Bhattacharya was of the view that since the impugned order was passed by the learned Trial Judge in exercise of his power under Section 340 of the Code of Criminal Procedure, such an order is not revisable by this Court in its Civil Revisional Jurisdiction. Accordingly, his Lordship released the said matter from his Lordship's list on 10th September, 2004.
4. In view of the order passed by Justice Bhattacharya, as aforesaid, this revisional application which was filed initially in the Civil Revisional Jurisdiction of this Court, was re-registered as a Criminal Revisional Application and the same was placed for hearing before Justice S.K. Gupta while his Lordship was exercising jurisdiction over Criminal Revisional Applications.
5. According to Justice Gupta, since the order in question was passed by the learned Additional District Judge in a Matrimonial Suit and since no proceeding has yet been drawn up under Section 340 of the Criminal Procedure Code, the petitioner is within her right to approach the Civil Jurisdiction of this Court for her remedy.
6. Justice Gupta also expressed his views to the effect that this petition is to be heard by a Judge sitting in the Ordinary Civil Revisional Jurisdiction and not by a Judge sitting in Ordinary Criminal Revisional Jurisdiction unless the matter is specially assigned to his Lordship by the Hon'ble Chief Justice.
7. In spite of expressing such a view, his Lordship instead of deciding the said application on merit in its Criminal Revisional Jurisdiction, referred this matter by an order dated 2nd September, 2005 to the then Hon'ble Chief Justice for determination of the following questions, as his Lordship. thought that in case of such difference of opinion between two Benches of equal strength, it would be proper to send those questions for determination by the Hon'ble Chief Justice:
1) Whether the Department can fix the determination of a case without the permission of the Hon'ble Chief Justice particularly when a Id. Single Judge has released the matter from his Lordship's list on the ground of lack of jurisdiction.
2) Whether a revisional application against an order passed by an additional District Judge in a Matrimonial Suit directing the Magistrate to make an enquiry as to whether there is prima facie ground for proceeding against a party under Section 340, Cr.P.C. or not, is to be heard by a Judge of the High Court in exercise of his civil or criminal revisional jurisdiction.
8. In the aforesaid context, this revisional application was assigned to this Bench by the then Hon'ble Chief Justice vide Administrative Order dated 7th September, 2005.
9. When this application is taken up for hearing by this Bench in pursuance of the order of assignment passed by the then Hon'ble Chief Justice as aforesaid, a preliminary objection regarding entertainability of this application by this Bench sitting singly was raised by the opposite party (husband) appearing in person. According to him, in view of the provision contained in Rule 10 of Chapter II of the Appellate Side Rules, such an application is required to be heard and or dealt with a Division Bench consisting of two Judges.
10. Thus, though the opposite party did not dispute that such an application is required to be considered by this Court in its Civil Revisional Jurisdiction, but he contended that this Bench sitting singly is not competent to hear the said application in view of the provision contained in Rule 10 of Chapter-II of the Appellate Side Rules.
11. Mr. Chatterjee, learned Senior Counsel, appearing for the petitioner (wife), refuted such submission of the opposite party by contending, inter alia, that since the merit of such preliminary objection had already been considered and decided by Justice Gupta in his Lordship's order dated 2nd September, 2005 against the opposite party herein, the said opposite party cannot re-agitate the said objection once again before this Court at this stage.
12. On perusal of the order dated 2nd September, 2005 passed by Justice Gupta, this Court finds that though the said preliminary objection was taken by the opposite party before his Lordship, but the said objection, in fact, was not resolved conclusively by his Lordship.
13. On perusal of his Lordship's said order, this Court finds that his Lordship practically concentrated on the consideration as to whether such an application is revisable by this Court in its Civil Revisional Jurisdiction or in its Criminal Revisional Jurisdiction and in the process of such consideration, his Lordship though expressed His Lordship's views that such an application should be decided by a Judge sitting in the ordinary civil revisional jurisdiction and not by a Judge sitting in a criminal revisional jurisdiction, but his Lordship instead of deciding the said dispute finally, referred the said matter to the Hon'ble Chief Justice for consideration of the points formulated by his Lordships, as referred to above. Thus, this Court finds that no final and conclusive decision was taken by Justice Gupta on the aforesaid issue.
14. However, in view of the Full Bench decision of this Hon'ble Court in the case of Har Prasad Das v. The Emperor reported in (1913) XVII CWN 647, this Court agrees with the views expressed by Justice Gupta that such an application is entertainable by this Hon'ble Court in its Civil Revisional Jurisdiction.
15. But since the preliminary objection regarding entertainability of this application by a learned Single Judge of this Court has not been decided by His Lordship conclusively, this Court cannot avoid adjudication of the said preliminary objection of the opposite party, in spite of the fact that a casual observation was made by Justice Gupta in His Lordship's said order that such an application can be heard by a Judge sitting in the Civil Revisional Jurisdiction and further in spite of the fact that this application, in fact, was assigned to this Bench by the then Hon'ble Chief Justice for disposal.
16. In my view, such consideration is necessary as despite such order of assignment, any decision which will be taken by this Court, sitting singly, may ultimately become void because of inherent lack of jurisdiction of this Court to deal with such matter in view of the provision contained in Rule 10 of Chapter-II of the Appellate Side Rules.
17. As a matter of fact, the Hon'ble Supreme Court in its decision in the case of N.S. Thread Co. Ltd. v. James Chadwick & Bros held as follows:
The power that is conferred on the High Court by Section 108, Government of India Act, 1915, still subsists, and it has not been affected in any manner whatever either by the Government of India Act, 1935 or by the Constitution of India. On the other hand it has been kept alive and reaffirmed with great vigour by these statutes. The High Court still enjoy the same unfettered power as they enjoyed under Section 108, Government of India Act, 1915 of making rules and providing whether an appeal has to be heard by one Judge or more judges or by Division Courts consisting of two or more Judges of the High Court. Further, the reference in Clause 15 to Section 108 should be read as a reference to the corresponding provisions of the 1935 Act and the Constitution.
18. Keeping in mind the aforesaid decision of the Hon'ble Supreme Court, this Court has no hesitation to hold that the Rules which have been framed by this High Court regarding distribution of its business, should be followed strictly and the administrative decision of the Hon'ble Chief Justice regarding distribution of its business cannot override the said Rules.
19. Let me now consider the merit of the preliminary objection raised by the opposite party, as aforesaid.
For proper appreciation of the said preliminary objection, the provision contained in Rule 10 of Chapter II of the Appellate Side Rules is set out hereunder:
A Division Bench for the hearing of applications relating to, or arising out of, proceedings in any subordinate Court (Civil, Criminal or Revenue) under Section 195 or Sections 340, 343 and 476, Criminal Procedure Code, shall consist of two Judges.
20. Let me now consider as to whether the aforesaid provision is attracted in the facts of the instant case or not?
In the instant case, the learned Trial Judge disposed of the opposite party's application under Section 340 read with Section 195(1)(b)(i) of the Code of Criminal Procedure by directing the opposite party (husband) to file certified copies of all the evidences on record as well as the documents referred to, in the said petition for sending them to the learned Chief Judicial Magistrate, 24-Parganas (N), Barasat for enquiry under Section 340 of the Criminal Procedure Code as the learned Trial Judge is of the view that the complaint filed by the opposite party (husband) should be referred for enquiry to the learned Chief Judicial Magistrate, Barasat, 24-Parganas(N).
21. On perusal of the said order, this Court finds that though the learned Trial Judge was of the view that the complaint filed Dy the opposite party should be referred for enquiry to the learned Chief Judicial Magistrate, Barasat, 24-Parganas(N), but still then, the learned Trial Judge disposed of the said application without following any of the courses as provided in Clauses (a), (b), (c), (d) and (e) of Section 340(1) of the Code of Criminal Procedure.
22. The opposite party, however, tried to impress upon this Court that the course as indicated in Section 340(1)(c) of the Criminal Procedure Code was followed, in this Case, but this Court cannot accept such submission of the opposite party as the learned Trial Judge, disposed of the said application under Section 340 without actually sending it to the Magistrate of the 1st Class having jurisdiction for further enquiry. The learned Trial Judge, in fact, disposed of the said application by giving direction upon the opposite party to file the requisite documents for sending them to the Chief Judicial Magistrate, Barasat and fixed another date for. passing further order.
23. This Court is still at a loss to understand as to how further order can be passed after disposal of the said application. This Court is further at a loss to understand as to how the impugned order was passed even without disclosing the reasons for formation of opinion to the effect that it is expedient in the interest of justice that an enquiry should be made into an offence complained of, in the application without further holding prima facie that such an offence might constitute an offence as referred to in Section 195(1)(b) of the Criminal Procedure Code.
24. Be that as it may, this Court has no Hesitation to hold that the impugned order was passed on an application filed by the opposite party under Section 340 read with Section 195 of the Criminal Procedure Code.
25. If that be so, then the only conclusion which can be arrived at by this Court that the present revisional application arises out of a proceeding under Section 340 of the Criminal Procedure Code and the impugned order was passed on an application filed by the opposite party which relates to a proceeding under Section 340 read with Section 195 of the Criminal Procedure Code.
26. In my view, a proceeding is initiated with the filing of an application. Thus, the said proceeding in which the Impugned order was passed by the learned Trial Judge was initiated by filing of such an application by the opposite party and the said order Is thus revisable only by a Division Bench consisting of two Judges of this Hon'ble Court as per the provision contained in Rule 10 of Chapter-II of the Appellate Side Rules.
27. Though it is true that all applications under Article 227 of the Constitution of India passed by any Judge in any civil suit and/or appeal, irrespective of its valuation is entertainable by a single Judge of this Court having jurisdiction, but the jurisdiction of the single Judge to entertain such an application which arises out of a proceeding under Section 340 and Section 195 of the Criminal Procedure Code, is ousted by the special provision contained in Rule 10 of Chapter-II of the Appellate Side Rules.
28. The preliminary objection regarding entertainability of this revisional application by this Bench sitting singly, is thus sustained.
29. In such view of the matter, let the records relating to this revisional application be placed before the Hon'ble Chief Justice for passing an order of assignment of this matter to any Division Bench of this Hon'ble Court for consideration of this application in its Civil Revisional Jurisdiction.