1967 Supreme(Pat) 24

PATNA HIGH COURT
Narasimham, R.K.Choudhary, U.N.Sinha, S.P.Singh and A.B.N.Sinha JJ.
Mt.Rampati Kuer
Versus
Jadunandan Thakur
Civil Revision No. 757 of 1965 ;
Decided On : MARCH 23, 1967

An appeal from an order of an inferior Civil Court filed before the District Judge under Sec. 476-B, Cr.P.C., cannot be validly transferred to the Additional District Judge for disposal, but the Additional District Judge can directly entertain the appeal if the function of receiving appeals has been assigned to him under Sub-section (3) of Sec.21 of the Civil Courts Act, 1887.

Headnote:

CRIMINAL PROCEDURE CODE - Sec. 476-B - Appeal against order under - Lies to the Court to which the original Civil Court is subordinate - Additional District Judge has no jurisdiction to hear such appeal unless the function of receiving appeals is assigned to him under Sec. 21 (3) of the Bengal, Agra and Assam Civil Courts Act, 1887 - Appeal filed before the District Judge under Sec. 476-B, Cr.P.C., cannot be validly transferred to the Additional District Judge for disposal - Appeal under Sec. 476-B, Cr.P.C., arises only after a complaint has been made by the inferior Civil Court, nevertheless, if the appeal is filed when the order for making such a complaint is made, the admission of such an appeal will be a mere curable irregularity.

Fact of the Case:

Jadunandan Thakur filed a money suit against Musammat Rampati Kuer and others alleging that Musammat Rampati Kuer had executed a hand-note for Rs. 661 in his favour on the 4th May, 1958. The hand-note was filed along with the plaint in that money suit. The petitioners, however, alleged that the hand-note was a forgery. The revenue stamp affixed to the hand-note was proved to have been issued by the Government on the 1st October, 1958, several months after the date of the alleged execution of the hand-note, and this was perhaps one of the conclusive pieces of evidence to prove the forgery. The hand-note was alleged to have been scribed by Ramkhela-wan Thakur (Opposite Party No. 2), who signed the handnote also on behalf of the defendant Rampati Kuer. It was alleged that the plaintiff having come to know that the forgery was detected got a petition filed by his brother Ramshis Thakur (Opposite Party No. 3) on the 11th August, 1960, before the learned Munsif, stating that the claim under the handnote had been paid off and that the suit may be dismissed. The suit was accordingly dismissed, but a proceeding under Sec. 476, Cr. P. C. (Miscellaneous Case No. 92 ot 1960) was started on the application of the petitioners against the plaintiff, the scribe and the brother of the plaintiff for offences under Sections 465, 467 and 478 of the Indian Penal Code. The learned Munsif by his order dated the 7th July, 1961, directed the drawing up of a complaint against Jadunandan Thakur (Opposite Party No. 1) for an offence under Sec. 471 of the Indian Penal Code and against the alleged scribe Ram-khelawari Thakur (Opposite Party No. 2) for offences under Ss. 465 and 467 of the Indian Penal Code.

Finding of the Court:

1. An appeal from an order of an inferior Civil Court filed before the District Judge under Sec. 476-B, Cr.P.C., cannot be validly transferred to the Additional District Judge for disposal, but the Additional District Judge can directly entertain the appeal if the function of receiving appeals has been assigned to him under Sub-section (3) of Sec.21 of the Civil Courts Act, 1887. 2. Though an appeal under Sec. 476-B, Cr.P.C., arises only after a complaint has been made by the inferior Civil Court, nevertheless, if the appeal is filed when the order for making such a complaint is made, the admission of such an appeal will be a mere curable irregularity.

Issues: 1. Whether an appeal from an order of an inferior Civil Court filed before the District Judge under Sec. 476-B, Cr.P.C., can be validly transferred to the Additional District Judge for disposal? 2. Whether an appeal under Sec. 476-B, Cr.P.C., arises only after a complaint has been made by the inferior Civil Court?

Ratio Decidendi: 1. An appeal from an order of an inferior Civil Court filed before the District Judge under Sec. 476-B, Cr.P.C., cannot be validly transferred to the Additional District Judge for disposal, but the Additional District Judge can directly entertain the appeal if the function of receiving appeals has been assigned to him under Sub-section (3) of Sec.21 of the Civil Courts Act, 1887. 2. Though an appeal under Sec. 476-B, Cr.P.C., arises only after a complaint has been made by the inferior Civil Court, nevertheless, if the appeal is filed when the order for making such a complaint is made, the admission of such an appeal will be a mere curable irregularity.

Final Decision: The orders passed by the Third Additional Sessions Judge, Muzaffarpur, on the 18th January 1962, in Criminal Appeals Nos. 129 and 169 of 1961 be quashed and the Sessions Judge, Muzaffarpur, be directed to rehear the appeals and dispose of the same in accordance with law.