M S SHERIFF Vs. M GOVINDAN

JUDGEMENT

(1.) These two applications were filed under Arts, 132(1) and 134(1)(c) of the Constitution of India for leave to appeal to the Supreme Court against the orders of this Court in Cr. M. P. Nos. 1703 and 1705 of 1950 directing the prosecution of the present applicants under Section 193, Penal Code. There were two applications Cr. M. P. Nos. 2461 and 2462 of 1949 filed under Section 491, Cr. P. C., requesting this Court to issue directions in the nature of habeas corpus for the release of the petitioners therein. The complaint by those petitioners Govindan and Damodarasami was that they were kept in illegal custody in Rule 2 and Rule 1 police stations of Coimbatore by the Sub- Inspectors of Police of the respective stations and that they should be released. In those applications, the Sub-Inspectors who are the present applicants for leave to appeal to the Supreme Court filed affidavits denying the custody of those persons. There was an elaborate enquiry into the question whether or not Govindan and Damodaraswami were in the custody of the Sub-Inspectors of Police and in our judgment dated 28-4-1950, we found, after detailed examination of the evidence adduced on both sides, that the allegations in the counter affidavits filed by the Sub-Inspectors of Police were false and that Govindan and Damodaraswami were both in their custody on the material date. The petitions, however, were dismissed for other reasons. Govindan and Damodaraswami thereafter moved this Court to direct the prosecution of the Sub-Inspectors of Police for an offence under s. 193, Penal Code. Those petitions were heard by us after notice to the Sub-Inspectors of Police to show cause why a prosecution should not be launched and by our order dated 9-31951 we directed the prosecution of the Sub-Inspectors of Police under Section 193, Penal Code. These applications for leave are against the Order directing the prosecution of the Sub-Inspectors of Police. Though in the applications now filed Articles 182 and 134 of the Constitution of India were relied on, the arguments before us were confined to Article 134(1)(c) of the Constitution of India and Section 476B, Cr. P. C.

(2.) Mr. Ethiraj, learned counsel for the applicants raised a very novel and interesting question the decision of which depends upon the proper construction of Section 476B, Cr. P. C. and the arguments before us turned mostly on the construction of that section. The contention shortly stated is that under Section 476B the applicants are entitled as a matter of right to appeal to the Supreme Court without the leave of this Court under Article 134(1)(c) of the Constitution because this Court is subordinate to the Supreme Court within the meaning of Section 195 (3), Cr. P. C. That sub-section is as follows :

(3.) The argument is that in view of Article 134 of the Constitution the Supreme Court must be treated as a Court to which appeals ordinarily lie from the appealable sentences of this Court and therefore this Court must be deemed to be subordinate to the Supreme Court. Under Article 134(1) of the Constitution, an appeal lies to the Supreme Court