JAGANNATH PAUL Vs. DEBIRANI NANDI

JUDGEMENT

(1.) BY an order dated February 22. 1989, this matter was referred to the Special Bench by the Hon'ble the Chief justice for finally settling the controversy as to whether an appeal made to the district Judge under Section 341 of the Code of Criminal Procedure might be transferred by him to an Assistant District Judge for disposal and whether the assistant District Judge is competent to hear such an appeal.

(2.) BEFORE we consider the question straight away, it would be relevant for us to consider the background of the case. Alleging inter alia that the opposite party had made a deliberate false statement in her verified petition for amendment of the plaint, the petitioners who are the defendants in the suit to eviction moved an application before the learned Munsif who was in seisin of the case for lodging a complaint against the opposite party for having committed an offence under Section 193 Indian Penal Code and for that purpose, to make an enquiry under Section 340 of the Code of Criminal procedure. The Id. Munsif rejected the application. The petitioners thereafter took an appeal to the learned District Judge under Section 341 of Criminal procedure Code. The Ld. District Judge, instead of hearing the appeal himself, transferred it to the learned Asstt. Distinct Judge, Arambagh, who dismissed the same on contest. Thereafter, the petitioners moved this revisional application invoking the provisions of Article 227 of the Constitution of India as well as the Ld. Assistant District Judge Both the parties agreed that an appeal under Section 341 Criminal Procedure Code lies before the learned district Judge. However, the controversy centres round the question as to whether the District Judge is duty bound to hear such an appeal himself or he has power under Section 22 (1) of the Bengal, Agra and Assam Civil Court act. 1887, (hereinafter referred to for the purpose of brevity as the 'act') and under Section 24 (l) (a) of the Civil Procedure Code to transfer the appeal to an Assistant District Judge for disposal. The other ancillary question that obviously arises in this context is whether an Asstt. District Judge is also competent to hear an appeal under Section 341 of Criminal Procedure Code.

(3.) IT was urged on behalf of the petitioners that an appeal under Section 341 criminal Procedure Code must have to the heard by the learned District Judge himself to whom such an appeal lies and he could not effect any transfer of such an appeal to an Assistant District Judge or to an Additional District judge for disposal by taking recourse to either Section 22 (1) of the Act or section 24 (l) (a) of Criminal Procedure Code. Apart from making a detailed analysis of Section 341 and sub-section (4) of Section 195 Criminal Procedure code. , Mr. Balai Ch. Roy the learned Advocate appearing for the petitioners placed two Divisional Bench Judgments of this court in Ramcharan Chandra vs. Taripullahsk. (16 CWN 645 = ILR. 39 Cal 774) and Hari'mondal vs. Keshab ch. Manna (16 CWN 903 = ILR 40 Cal 87 ). In Ramcharan's case, a Munsif dismissed a suit on bond and the decision was upheld by the appellate court and application for sanction to prosecute against the plaintiff for offence under sections 468 and 471 of the Indian Penal Code was refused by the Munsif. to the former. However, under Section 195 (6) of the Code of Criminal procedure, power of revoking or granting any sanction given or refused, was given to the authority to which the authority giving or refusing it was subordinate and sub-section (7) provided that for the purpose of this section every court should be deemed to be subordinate only to the court to which the appeals from the former court ordinarily did lie. There was no doubt that the district Judge was the only court to which appeals from an order of a transfer ordinarily did lie. For the purpose of Section 195 Criminal Procedure Code, therefore, a Munsif was not subordinate to a Subordinate Judge. A Subordinate Judge could dispose of any appeal transferred by him by the district Judge under Section 21 (1) of the Civil Courts Act, but the power of revoking or granting sanction was given (only to the Court to which an appeal lies. Thus the said power could not be exercised by a Subordinate Judge to whom an appeal did not lie from the order of the Munsif; but who can only dispose of an appeal transferred to him by the District Judge. In Hari Mondal's case, an application for compromise was filed on behalf of the decree-holder in execution of a decree obtained by him against the Judgement-Debtor in a mortgage suit and the execution case was ordered by the Munsif to be compromised on full satisfaction. Subsequently, the decree-holder filed a petition under Sections 224 and 623 Criminal Procedure Code 1882 to set aside the order of dismissal on the ground that the application for compromise for filed by him or on his behalf and he alleged that the said application was forged. On the case having been heard by the learned Munsif, it was found hall the application for compromise was really a forgery and accordingly, an order was passed by the learned Munsif setting aside the order of dismissal of the execution case Thereafter the decree-holder applied for and obtained a sanction from the learned Munsif to prosecute, Hari Mondal, one of the judgment Debtor and Sections 192. 196,463 and 471 Indian Penal Code. Against the order. of the Munsif, two appeals were filed by Hari Mondal and some other judgment - debtors to the Ld. District Judge who transferred the said appeal to the file of the Subordinate Judge for dispesal. The appeals were dismissed and thereafter Hari Mandal and others obtained a rule against the order granting section to prosecute them and a Division Bench of this Court herd that, the district judge could not transfer those appeals to the subordinate Judge for disposal. The Division Bench. presided over by Sir asutosh Mookenee, held that sub-section (6) provided that any sanction given or relused in the section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate Sub-section (7) provided that for the purpose of this section every court shall be deemed to be subordinate only to the court to which appeals from the former court ordinarily lie. Under section 21 sub-section (2) of the Bengal Civil Courts Act, 1887 an appeal from the order of the Munsif lies to the District Judge. Consequently, the District judge is the authority competent to sub-section (6) of Section 195 Criminal procedure Code to revoke or grant a sanction which has been given or refused by the Munsif. According to the opinion of Their Lordships of the Division bench, the District Judge was not competent under Section 22 (1) of the Bengal civil Courts Act, 1887 to transfer the appeal presented before him for disposal by a Subordinate Judge. That section provided that a District Judge may transfer to any subordinate judge under his administrative control any appeal pending before him from the decree or order of a Munsif. An application under sub-section (6) of Section Criminal Procedure Code was not an appeal within the meaning of sub-section (1) of Section 22 of the Bengal Civil Courts Act, 1887. It was however, suggested to Their Lordships that any order has been made by the High court sub-section (4) of Section 21 of Bengal Civil Courts act so as constitute the Subordinate Court as the appellate authority over the Munsif, the order as made by the subordinate Judge as passed in this case was found to be without jurisdiction.