BANAMALI BHADRA Vs. JADUNATH PRADHAN

JUDGEMENT

(1.) THIS revision is directed against an order of the Additional Subordinate Judge, Balasore, setting aside the order of the Additional Munsif, in directing prosecution of the opposite party under Sections 465, 467 and 471, Indian Penal Code. The circumstances that gave rise to this revision may be briefly stated as follows:

(2.) THE opposite party filed a suit (0.S. No. 231 of 1961 -III) against the Petitioner in the Court of the Additional Munsif, Balasore, for recovery of a sum of Rs. 500 - alleged to, have been advanced by him on the basis of a pronote executed by the Petitioner. The Petitioner denied the execution, of the pronote. Thereafter the document was sent to one finger -print expert who opined that the finger -print borne on that document is not, that of the Defendant Petitioner. At the instance of the Plaintiff the document was again sent to the Governments finger print expert who also gave the same opinion. The Plaintiffs, however, failed to appear when the suit was called and the suit as accordingly dismissed for default. Thereafter the Petitioner filed a petition under Section 476, Code of Criminal Procedure before the trial Court to file a complaint against the Plaintiff under Sections 465, 476 and 471, Indian Penal Code. The learned Munsif by his order dated 17 -1 -1964 in Miscellaneous Case No. 1063 directed a complaint to be made against the opposite' party before the Sub -divisional Magistrate (Judicial) Balasore, under Sections 465, 467 and 471. Against this order dated 2 -3 -1964. of the Munsif, the, Plaintiff carried an appeal before the District Judge under Section 476 -B. On 27 -7 -1964 the District Judge transferred this appeal to the Additional Subordinate Judge, Balasore, who by his order dated 23 -12 -1964, set aside the order of the learned Munsif and allowed the appeal of the Plaintiff. It is against this appellate order of the Subordinate Judge this application has been filed.

(3.) SECTION 22(1) of the Bengal, Agra and Assam Civil Courts' Act (Act' XII 1887) provides that a District Judge may transfer to any Subordinate Judge under his administrative capacity any appeal that ordinarily lies and is pending before him from the decree or orders of the Munsif. It has however been held by a number of authorities that a Munsif making a complaint under Section 476, Code of Criminal Procedure is not passing an order within the meaning of Section 22 of Act 12 of 887 and as such the District Judge has no jurisdiction to transfer the appeal in the Court of the Subordinate Judge who also has no jurisdiction to hear the appeal. See Shib Prasad v. Prahallad Singh : A.I.R. 1935 All. 696. In Dulari Keori v. Fauzdari Khan : A.I.R. 1933 Pat. 179 the same view was also taken. It was held that the Court of the District Judge is the only Court to which the Munsif is subordinate within the meaning of Section 195(3) so that an appeal under Section 477 -B can be heard by the District Judge himself and he has no power to transfer an appeal of this nature to the Sub ordinate Judge for hearing. This was also the view taken in Rama Gharan v. Tirupalla Singh, I.L.R. Cal. 774. No decision was cited on behalf of the opposite party contrary to this position. This in my opinion represents the correct kind of Law.