1956 Supreme(SC) 12

SUPREME COURT OF INDIA
15th February 1956
BOSE, JAGANNDHA DAS, SINHA, IMAM AND CHANDRASEKHARA AIYAR, JJ.
Kuldip Singh, Appellant
Versus
The State of Punjab and another, Respondents.
Criminal Appeal No. 34 of 1955.
Advocates Appeared
Mr. Ramalal Anand, Sr. Advocate (Mr. I. S. Sawhney, Advocate, with him), for Appellate; Mr. Gopal Singh and Mr. P. G. Gokhale, Advocates, (for No. 1) and Mr. Jindra Lal and Mr. Gopal Singh, Advocates (for No. 2), for Respondents.

Headnote: Punjab Courts Act (1918), Section 39-Criminal Procedure Code (1898), Sections 195(3), 476-A-"Court to which appeals ordinarily lie "-Meaning and scope-Court of Subordinate Judge is not subordinate to Senior Subordinate Judge but to District Judge for purposes of S. 195 (3).

       Punjab High Court Rules and Orders, Vol. I, Chapter 20-B, page 3. The second respondent-A filed a civil suit against the appellant for recovery of a large sum of money on the basis of a mortgage in the court of B, a Subordinate Judge of the First Class. The appellant filed a receipt which purported to show that Rs. 35,000 had been paid towards satisfaction of the mortgage, and in the witness box he swore that he had paid the money and was given the receipt. B held that the receipt did not appear to be a genu ne document and that the appellants evidence was not true. A preliminary decree as well as final decree were passed. On appeal the High Court also held that the receipt was a very suspicious document and that the appellants evidence was not reliable. A then made an application in the Court of W who succeeded B as a Subordinate Judge of the first class, asking that a complaint be filed against the appellant under Ss. 193 and 471, I.P.C. But before it could be heard W was also transferred and no Subordinate Judge of the first class was appointed in this place. A Subordinate Judge of the fourth class was sent to his area and he was asked to decide the matter. He made a report to the District Judge that he had no jurisdiction because the offences had been committed in the Court of a Subordinate Judge of the first class. The District Judge thereupon transferred the matter to the Senior Subordinate Judge P, and that officer made the complaint.

       The appellant filed an appeal against Ps order to the Additional District Judge K. He held that P had no jurisdiction to make the complaint because he was not Bs successor. He also held, on merits, that there was no prima facie case. The matter went to the High Court in revision and it was held that P had jurisdiction and that the material disclosed a prima facie case.

       Held: (1) The offences said to have been committed are ones under Ss. 471 and 193, Penal Code. Section 195 (1) (b) and (c), Cr. P.C. prohibit any court from taking cognizance of either of these two offences except on the complaint in writing of the court concerned "or of some other court to which such court is subordinate." The offences were committed in the court of B and the Subordinate Judge of the fourth class was not his successor. Neither B nor W made a complaint or rejected the application. Section 476-A, Cr. P.C. enjoins that when the court in which the offence is said to have been committed neither makes a complaint nor rejects an application for the making of a complaint, the court to which such former court is subordinate within the meaning of S. 195, sub-section (3) may take action under S. 476.

       (2) Section 195(3) states that "for the purposes of this section, a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appeasable decrees for sentences of such former court, or in the case of a civil court from whose decrees no appeal ordinarily lies to the principal court having ordinary original civil jurisdiction within the local limit of whose jurisdiction such civil court is situate Provided that-

       (a) Where appeals lie to more than one court, the Appellate Court of inferior jurisdiction shall be the court to which such court shall be deemed to be subordinate, and .... "

       It cannot be said that appeals from the court of the various Subordinate Judges "ordinarily" lie to the Senior Subordinate Judge. Consequently, that court is not one of the appellate tribunals contemplated by S. 195 (3), Cr. P.C. and its proviso. But appeals do "ordinarily" lie either to the District Judge or the High Court; and as the District Court is the lower of these two tribunals that must be regarded as the appellate authority for the purpose of S. 476, Cr. P.C.

       (3) The court of the Senior Subordinate Judge was not the same court as Bs court, namely the court of the Subordinate Judge of the first class. The Senior Subordinate Judge is not vested with either administrative or judicial control over any other Subordinate Judge except in so far as he is court of appeal in certain specified classes of cases.

       (4) The original court made no complaint; S. 476-A, Cr. P. C. was therefore attracted and the jurisdiction to make the complaint was transferred to the court to which B was subordinate within the meaning of S. 195. That court was the court of the District Judge. Now, when the matter was reported to the District Judge by the Subordinate Judge fourth class the District Judge had authority under S. 476-A either to make the complaint himself or to reject the application. He did neither. Instead, he sent it to P who had no jurisdiction. Of course, 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 P was without jurisdiction. That still left the District Court free to act under S. 476-A where the matter came back to it again. This time it came by way of appeal from Ps order but that made no difference because the substance of the matter was this: the original court had not taken any action, therefore it was incumbent on the District Judge to make an appropriate order either under S. 476•A or by sending it for disposal to the only other court that had jurisdiction, namely the original court. But the District Judge did not deal with it.

       (5) The application went instead to the Additional District Judge.

       The Additional District Judge had not the requisite power and authority. The Court of the Additional District Judge is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the matters specially entrusted to its jurisdiction. The court of the Additional Judge is not a division court of the Court of the District Judge but a separate and distinct court of its own.

       When the original court does not make a complaint under S. 476, Cr. P.C. or reject the application, then the only other court competent to exercise these powers is the court to which appeals from the original court "ordinarily lie". In the present case this was the court of the District Judge and not the court of the Additional Judge and therefore the order of K was also without jurisdiction. He had no jurisdiction either under S. 476-A or S. 476-B, Cr.P.C. He seised himself of the case and rejected the application for the making of a complaint lie therefore assumed a jurisdiction which he did not possess and that at once attracted the provisional jurisdiction of the High Court. The High Court was, however, wrong in upholding the complaint made by P.

       (6) As the High Court was neither the original Court nor the Court to which the original Court was subordinate, according to the special definition in S. 195 (3), it had no jurisdiction to make the complaint of its own authority. Therefore, all that the High Court could, and should, have done was to send the case to the District Judge for disposal according to law, and this is what the Supreme Court should do now.