Judgment

BOSE J. :

The question in this case is whether an appeal lies to this Court under section 476-B of the Criminal P. C. from an order of a Division Bench of High Court directing the filing of complaint for perjury.

2. Two persons, Govindan and Damodaran, filed petitions under S. 491, Criminal P. C. for release claiming that they had been illegally detained by two Sub-Inspectors of Police who are the appellants before us. Govindan said he was being detained by one Sub-Inspector and Damodaran said he was being detained by the other. Both the Sub-Inspectors said that the petitioners were not in their custody. The first Sub-Inspector, who was concerned with Govindan, said that Govindan had never been arrested by him and had not been in his custody at any time.

The other denied that Damodaran was in his custody. He admitted that he had arrested him at one time but Said that he had been released long before the petition. Each swore an affidavit in support of his return. In view of this conflict between the two sets of statements the High Court directed the District Judge to make an enquiry.

3. Considerable evidence was recorded and documents were field and the District Judge reported that in his opinion the statements made by the two Sub-Inspectors were correct. The High Court disagreed and, after an elaborate examination of the evidence, reached the conclusion that the petitioners were telling the truth and not the Sub-Inspectors. The petitioners were however regularly arrested after their petitions and before the High Courts s order; one was released on bail and the other was remanded to jail custody by an order of a Magistrate. Accordingly their petitions became infructuous and se were dismissed.

4. After this, the petitioners applied to the High Court under S. 475, Criminal P. C., and asked that the Sub-Inspectors be prosecuted for perjury under section 193, I. P. C. The applications were granted and the Deputy Registrar of the High Court was directed to make the necessary complaints.

5. The Sub-Inspectors thereupon asked for leave to appeal to this Court. Leave was refused on the ground that no appeal lies, but leave was granted under Art. 132 as an interpretation of Arts. 134(1) and 372 of the Constitution was involved. The Sub-Inspectors have appealed here against that order as also against the order under S. 476. In addition, as an added precaution they have field a petition for special leave to appeal under Art. 136(1).

6. The first question we have to decide is whether there is a right of appeal. That turns on the true meaning of S. 476-B, Criminal P. C. read with S. 195 (3). The relevant portion of the former reads thus :

"Any person ... against whom ... a complaint has been made" (under section 476) "may appeal to the within the meaning of section 195 (3)......"

The latter section reads......

"For the purposes of this section, 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......"

The rest of the section does not concern us.

7. Two things are evident, First that a right of appeal has been expressly conferred by S. 476-B provided there is a higher forum to which an appeal can be made; and second, that 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 S. 195(3). 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" We, have accordingly next to examine the content of the fiction.

8. The section says that the Court making the order under S. 476 shall be deemed to be subordinate to the Court.

(a) to which appeals ordinarily lie

(b) from the appealable decrees or sentences of such former court.

9. Now the former Court in this case is a Division Bench of the High