Madhya Pradesh High Court
Harishankar vs Khyalichandra And Anr. on 2 January, 1991
Equivalent citations: 1991CRILJ2153
ORDER S.K. Dubey, J.
1. This reference under Order XLVI, Rule 1, Civil Procedure Code (for short, the 'CPC'), is made by Civil Judge, Class I, Shivpuri, in Miscellaneous Judicial Case No. 1/1978, whereby the Court, on its own motion, entertained a doubt and after drawing up a statement of facts of the case, has referred the following three points for decision of this Court :--
¼v½ D;k vij l= U;k;k/kh'k ds }kjk lquokbZ dh tkus okyh dfFkr vihy dsoy in uke xyr fy[k nsus ls vihy dk fu.kZ; ,oa vkns'k voS/k ,oa 'kqU; gks tkrk gSA ¼c½ D;k O;ogkj U;k;ky; oxZ 1 /kkjk 341 n.M izfØ;k lafgrk vkSj /kjk 195¼2½ n.M izfØ;k lafgrk ds vUrxZr vij ftyk U;k;k/kh'k ;k vij l= U;k;k/kh'k vFkok nksuksa dk iz'kkfud :I ls v/khuLFk U;k;ky; jgrk gS\ ¼d½ D;k dfFkr iz'uksa ds mÙkj ds voyksdu esa vij l= U;k;k/kh'k ds }kjk vkijkf/kd iqujkosnu 85 @ 79 ,oa vijkf/kd iqujh{k.k Øekad 39 @ 1979 tcyiwj ykW tujy i`"B 146 xuiryky fo#ð yk;dpUn ds voyksdu esa cU/kudkjd jgrs gSaA
2. Before dealing with the points, few facts need be mentioned : Khyali Chandra instituted a suit (No. 15-B of 1972) for recovery of money against Harishankar, basing his claim on a promissory note. This suit was dismissed on 21-11-1975, holding that the promissory note and the receipt (Exts. P-1 and P-2) were forged, while dismissing the suit, the Court did not pass any order for prosecution Under Section 195 of the Cr.P.C, 1898 (for short, the 'Cr. P.C.'). On 2-1-1978, Harishankar, defendant, made an application to the Court for prosecuting the plaintiff Khyalichandra and Geburam, by filing a complaint under Clause (b) of Sub-section (1) of Section 340 of the Code of Criminal Procedure, 1973 (for short, the 'Code of 1973'). This application was registered as Miscellaneous Judicial Case No. 1/1978.
3. After holding a preliminary inquiry, the Court passed an order for making a complaint in writing for their prosecution Under Sections 193, 196, 468 and 471, I.P.C., in the Court of a competent jurisdiction. Against this order, Khyalichandra filed a criminal appeal No. 85/1979, Under Section 341 of the Code of 1973 and Geburam preferred a Criminal Revision (No. 38/1979) Under Section 379. Both the matters were heard by Additional Sessions Judge, Shivpuri, who vide a common order dated 12-3-1980, allowing the appeal and revision, remitted the case to the Court of Civil Judge, Class I, for further inquiry and then to initiate the action.
4. When the matter came before the Civil Judge Class I, the learned Judge entertained a doubt as to the jurisdiction of the learned Additional Sessions Judge, in view of the decision of this Court in Ganpatlal v. Layakchand 1980 Jab LJ 146 and, accordingly, referred the matter to this Court under O.46, R. 1, CPC, after framing the aforesaid three questions for opinion of this Court.
5. Shri M. G. Khedkar, Additional Government Advocate for the State, and Shri K. B. Chaturvedi, counsel for Khyalichandra and Geburam, were heard.
6. A look to the record shows that, no doubt, the learned Additional Sessions Judge exercised powers under the Code of 1973, sitting as a Criminal Revisional and Appellate Court and not as an Appellate or Revisional Court under the CPC, as, ordinarily, against a judgment and decree or an order, appeal or revision lies to the Court of District Judge. Section 7(2) of the M.P. Civil Courts Act, 1958 (substituted by M. P. Amendment Act No. 7 of 1980 with retrospective effect) provides that an Additional Judge to the Court of a District Judge, an Additional District Judge and an Additional Judge to the Court of an Additional District Judge shall discharge any of the functions of Principal Civil Court of original jurisdiction which the District Judge may, by general or special order, assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge. Therefore, by substituting Sub-section (2) of Section 7, all Additional Judges were invested with powers and jurisdiction to discharge any of the functions of the District Judge. Earlier to 14-8-1984, against an order of Civil Court, Civil Revision Under Section 115 CPC, used to lie to the High Court, but by introducing the amendment in Section 115, CPC, by M. P. Amendment Act No. 29 of 1984, in original suits or other proceedings of the value less than twenty thousand rupees, District Judge was empowered and invested with the jurisdiction to hear the revisions, arising out of such orders of the subordinate Courts.
7. Therefore, the decision of this Court in Ganpatlal's case (1980 Jab LJ 146) (supra) in no way alters the proviso as it has been clearly laid down that Civil Court passing an order Under Section 195(1)(i)(a), Cr. P.C. does not cease to be a Civil Court and such a Court being subordinate to the High Court, revision Under Section 115, CPC, lies to the High Court against an order passed by such Court. As such, a Civil Court passing an order to file a complaint being subordinate to the High Court for purposes of Section 115, CPC, revision against such an order lies to the High Court. Though in that case this Court held that the Civil Judge passing an order Under Section 195(1)(a), Cr. P.C, is not administratively subordinate, it can be regarded as subordinate to the Court of Additional District Judge, but in view of substitution of Sub-section (2) of Section 7 of the M.P. Civil Courts Act, 1958, by M. P. Amendment Act No. 7 of 1980, which was made effective retrospectively, that view would have no effect. When Ganpatlal's case was decided, this substitution had not come into force. In view of this substituted provision, it cannot be doubted that an Additional Judge to the Court of District Judge discharges and exercises all functions of the District Judge, and Civil Court of original jurisdiction, which hears and determines the suit of the value not exceeding Rs. 20000/- is subordinate to the District Judge or Additional Judge to the Court of District Judge, who according to distribution memo decides the appeal or revision. Therefore, Additional Judge to the Court of District Judge exercising powers in civil matters under the CPC and Additional Sessions Judge exercising powers under Cr. P.C, though the presiding Judge may be the same, exercises separate jurisdictions. Thus, the Additional Judge to the Court of District Judge cannot exercise the powers under the Cr. P.C. and the Additional Sessions Judge cannot exercise powers under IPC for hearing appeals and revisions, and as held in Ganpatlal's case (supra) if such powers are exercised by Additional Sessions Judge against an order passed by Civil Judge in a proceeding Under Section 195, Cr. P.C. for filing a complaint, that will be without jurisdiction, as would be evident from the language of Sub-section (4) of Section 195, Cr. P.C, which lays down that for the purpose of Clause (b) of Sub-section (1) of Section 195 the Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having original civil jurisdiction within whose local jurisdiction such Civil Court is situate.
8. This Court in Bishambhardas, AIR 1942 Nagpur 73 took the view that a Civil Court does not cease to be a Civil Court when it is considering an application made to it Under Section 476, Cr. P.C. and, therefore, for the purpose of that application, it must be governed by the provisions of Civil Procedure Code and not by those of Criminal Procedure Code. Consequently, an application in revision against the order of a Civil Court acting Under Section 476, Cr. P.C, lies Under Section 115, CPC. A Full Bench of Patna High Court in Deonandan Singh v. Ramlakhan Singh, AIR 1948 Patna 225 : (1948-49 Cri LJ 246) took the same view and held that a Civil Court acting Under Section 476, Cr. P.C. 1898, does not exercise any criminal jurisdiction. So construed, an application in revision against an appellate order passed by a Civil Revenue Court Under Section 476B is governed not by Section 439, Cr. P.C, but by Section 115, CPC
9. The apex Court in case of M. S. Sheriff, AIR 1954 SC 397 : (1954 Cri LJ 1019), while considering a case Under Sections 195(3), 476B of Cr. P.C, 1898, has held that a right of appeal has been expressly conferred by Section 476-B provided there is a higher forum to which an appeal can be made; and the appellate forum has been designated in an artificial way. The appeal lies to the Court to which the former Court is subordinate within the meaning of Section 195(3), Cr. P.C. But "subordinate" does not bear its ordinary meaning. It is used as a term of art and has been given a special meaning by reason of the definition in Section 195(3); a fiction has been imposed by the use of the word "deemed." It was further observed that before the Court can apply the definition in Section 195(3) it has first to see whether there is a class of decrees or sentences in the Court under consideration which are at all open to appeal. If there are not, the matter ends, and there is no right of appeal under Section 476-B. If there are, then the Court has to see to which Court those appeals will "ordinarily" lie. In the Code of 1973, an analogous provision is made under Sub-section (4) of Section 195, Cr. P.C. The words used are "for the purpose of Clause (b) of Sub-section (4) of Section 195, a Court shall be deemed subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court....." The use of the words "ordinarily lie" in Section 195(4) Cr. P.C. suggests that for the purpose of appeal against an order for preparation and institution of complaint Under Section 190, Cr. P.C., for the offences Under Sections 193, 196, 468 and 471, IPC, it is enough if the Court to which appeal is preferred ordinarily exercises appellate jurisdiction over the Court, which passed the order irrespective of the fact whether appeal from decree or order lies to the Court or not. A Civil Court acting Under Section 195, Cr. P.C. is not a Criminal Court, yet if it orders on an application Under Section 340, Cr. P.C, for preparing and instituting a complaint Under Section 190, Cr. P.C. for offences under Sections. 193, 196, 468 and 471, IPC, an appeal is provided Under Section 341, Cr. P.C. against such an order to the Civil Appellate Court to which the Civil Judge, who passes the order, is subordinate. Therefore, appeal against such an order Under Section 195(4) shall lie to the District Judge, or the Additional Judge to the Court of District Judge, as the case may be, to whom the Court is subordinate according to distribution memo and such appeals are to be heard by the appellate Court exercising civil jurisdiction. Thus, the Court of the Civil Judge is not the Court subordinate to the Court of Sessions and the appeal or revision before the Additional Sessions Judge against such an order would be incompetent.
10. Section 341 makes the position very clear. It lays down that if a Court refuses to make a complaint or orders to make a complaint Under Sub-section (1) or Sub-section (2) of Section 340, Cr. P.C, such aggrieved person may appeal to the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195, and the superior Court may thereupon, after notice to the parties concerned, direct withdrawal of the complaint or, as the case may be, making of the complaint, which a former Court might have made Under Section 340 and if it makes such complaint, provisions of that section shall apply accordingly.
11. In exercising administratively jurisdiction criminal and civil, the Court may be the same, but for the purposes of appeal or revision, if an order is passed Under Section 195(4) by a Civil Court, appeal shall lie to the District Judge or Additional District Judge, as the case may be, and if the former Court is a Criminal Court, appeal shall lie to the Sessions Judge or Additional Sessions Judge, as the case may be. Hence, the learned Civil Judge rightly entertained the doubt and drew the reference with the points for opinion of this Court which are answered accordingly.
12. Therefore, the Additional Sessions Judge, who exercised the jurisdiction as a Criminal Appellate Court or Revisional Court and the Civil Judge was not exercising criminal jurisdiction had no jurisdiction to entertain the appeal and the revision and to hear and decide the same by any order directing the Civil Court for deciding the case afresh. The order of the Additional Sessions Judge was without jurisdiction and was a nullity, as the Additional Sessions Judge was not competent to hear, entertain and dispose of the appeal and the revision.
13. In view of the fact that the order of the Additional Sessions Judge has been held to be a nullity, in compliance with the Civil Court's order complaint deserves to be prepared and filed and the accused persons deserve to be tried. But it is unfortunate that though the reference was made as long back as in the year 1980, it came up for hearing after a period of about 10 years. In such circumstances, in view of the decision of this Court in Laxminarayan v. Ramkanvabai, 1984 MPWN 344, the Referring Court shall consider whether it would now be expedient and in the interest of justice to prepare and institute a complaint.
14. Let the records be sent back immediately to the concerned Court for proceeding in the light of the opinion on the points of doubt referred to.