HAKIM RAI Vs. STATE

JUDGEMENT

(1.) The Sub-Judge 2nd Class, Kapurthala has filed a complaint against Hakim Rai petitioner under Sections 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 Procedure Code took an appeal to the District Judge Kapurthala, who rejected the same on 9th July, 1955. Hakim Rai has now come up in revision under Section 439 Criminal Procedure Code 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, Civil Procedure Code and not under Section 439 Criminal Procedure Code 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 Procedure Code 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 Procedure Code ) Shri Onkar Dass has stressed that it is the kind of the Court initiating proceedings under Section 476 Criminal Procedure Code 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,1948 AIR(Pat) 225 (FB). Emperor V. Har Prasad Dass, 1913 40 ILR(Cal) 477 (FB), Emperor V. Karri Venkanna Patrudu, 17 Cr. L.J. 515 (FB), Abdul Haq V. Sheo Ram, 28 Cr. L.J. 296. Bholanath Balbhadra Sahai V. Achheram Puran Kurmi, 1937 AIR(Nag) 91 and Purna Chandra Dutta V. Sheikh Dhalu, 1930 AIR(Cal) 72102. On the other hand, Shri Anant Ram has cited certain authorities taking the view that as the Civil Court in such cases moves and holds opposite 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, 1929 AIR(Lah) 676 Dhanpat Rai V. Balak Ram, 1931 AIR(Lah) 761 (FB), Emperor V. Bhatu Sadu Mali, 1938 AIR(Bom) 225 (FB), Dr. Valiram Lilaram V. Govindram Jethanand,1946 AIR(Sind) 217 Abdul Hussein Alibhai V. Mohamed Ibrahim, 1937 AIR(Rang) 526 and In re D. S. Raju Gupta, 1939 AIR(Mad) 472 it has been held that in such cases the High Court when moved in revision is moved under Section 439 Criminal Procedure Code 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 -

(2.) For the Petitioner :-

(3.) The question which has been referred to the Full Bench by my learned brother Kesho Ram Passey, J. at the time when he was Chief Justice in Pepsu High Court, is -