HAKIM RAI Vs. STATE

JUDGEMENT

(1.) THE Sub-Judge 2nd Class Kapurthala has filed a complaint against Hakim Rai petitioner under Ss. 193 and 471, I. P. C. Against that complaint and incidentally the order whereby it was decided to prosecute him, the petitioner, as permitted by section 476, Criminal P. C. , took an appeal to the District Judge, Kapurthala, who rejected the same on 9-7-1955. Hakim Rai has now come up in revision under section 439, Criminal P. C. , against which a preliminary objection is raised by the assistant Advocate General that against an order made by the District Judge, whose Court is a Civil Court, a revision can, if at all, lie under Section 115, C. P. C. and not under Section 439, Criminal P. C. His contention is that although the sub-Judge had in deciding the application of the opponent of Hakim Rai that he (Hakim rai) be prosecuted for perjury and forgery, to resort to the procedure laid down in section 476, Criminal P. C. , he was not for that reason converted into a Criminal court. According to the learned Assistant Advocate General the Sub-Judge continued to be a Civil Court against whose act of filing the complaint an appeal lay to the District Judge and not to a Sessions Judge. (See Section 476-B, Criminal p. C.)Shri Onkar Dass has stressed that it is the kind of the Court initiating proceedings under Section 476, Criminal P. C. , that would determine the revisional jurisdiction of the High Court and not the way or procedure following which he has disposed of certain proceedings. He has cited --'deonandan Singh v. Ramlakhan Singh', AIR 1948 Pat 225 (FB) (A); -- 'emperor v. Har Prasad Das', ILR 40 Cal 477 (PB) (B); -' emperor v. Venkanna', 17 Cri LJ 515: (AIR 1017 Mad 971) (FB) (C); --'abdul Haq v. Sheo Ram', 28 Cri LJ 296: (AIR 1927 All 324) (D); --'bholanath v. Achheram', air 1937 Nag 91 (E) and -- 'purna Chandra Dutta v. Sheikh Dhalu', AIR 1930 Cal 731 (2) (P ). On the other hand, Shri Anant Ram has cited certain authorities taking the opposite view that as ths Civil Court in such cases moves and holds enquiry under the provisions of an enactment regulating procedure in Criminal cases, it should be the Criminal Law under which action against a person is taken that should decide the revisional jurisdiction of the High Court. In the cases on Which he relies, viz. ,- 'hari Ram v. Emperor", AIR 1929 Lah 676 (G); --Dhanpat Rai v. Balak Ram', air 1931 Lah 761 (FB) (H); -- 'emperor v. Bhatu Sadu', AIR 1938 Bom 225 (PB) (I); --'valiram v. Govindram', AJR 1941 Sind 217 (J); --'abdul Hussein v. Mohamed Ibrahim', AIR 1937 Rang 526 (K); and --'d. S. Raju Gupta In re', AIR 1939 Mad 473 (L), it has been held that in such cases the High Court when moved in revision is moved under Section 439, Criminal P. C. There is no ruling of this Court on the point and the pronouncements of the High courts in India are in conflict. The question raised is of great importance and is likely to arise in other cases. I would, therefore, refer it to a Full Bench of this court. The question to be decided would be- "where a Civil Court of original jurisdiction has taken proceedings against a person under Section 476, Criminal P. C. , and filed a complaint against him and an appeal against that complaint has been dismissed by the Court to which such original Court was subordinate, as contemplated by Section 476-B. Criminal P. C. , would a revision against the order of the appellate Court be a revision in a Civil case under Section 115, Civil p. C. , or a revision on the Criminal side under Section 439, Criminal P. C. "? judgment falshaw, J. The question which has been referred to the Full Bench by my learned brother kesho Ram Passey J. , at the time then he was Chief Justice in Pepsu High Court, is

(2.) THE case has arisen out of the fact that Hakim Ral petitioner was ordered to be prosecuted under Section 193, Indian Penal Code, by a Sub-judge of Kapurthala and his appeal against that order has been dismissed by the District Judge at kapurthala.

(3.) THE relevant provisions of law relating to these matters are as follows. Subsection (1) of Section 195 of the Criminal Procedure Code, reads-