CHATURBHUJ OJHA Vs. KING

JUDGEMENT

(1.) This is an application against an order of Additional District Judge of Muzaffarpur directing the prosecution of the petitioner for an offence under Section 210, Penal Code.

(2.) The facts are that a final decree in a partition suit directed the different sets of defendants to pay separate coats to the petitioner, the amount recoverable from each defendant being specified in the decree. From defendant 1 the decree-holder was entitled to recover Rs. 63-3-9 and proportionate costs but no interest was allowed. The decree-holder applied for execution showing the amount which he claimed against different sets of judgment-debtors but also including a claim for interest. In execution the property of judgment-debtor 1 was pat up to sale and purchased by a stranger for Rs. 300. This judgmentdebtor made a deposit of Rupees 297-15-0 under Order 21, Rule 89. Out of this amount the decree-holder withdrew Rs. 290-15-6 which included Rs. 16 as the costs of the sale proclamation although his total dues against this judgmentdebtor amounted to less than Rs. 100 including proportionate costs. Judgmentdebtor I protested against the decree holder withdrawing so much from the amount that he had deposited, but the objection was contested by the petitioner. The executing Court, however, directed a refund of the money. The petitioner then appealed against the order of executing Court. The appeal was heard by the Additional District Judge and was dismissed by him. The Additional District Judge then called upon the petitioner to show cause why he should not ha prosecuted under Section 210, Penal Code, and after hearing the cause shown his directed his prosecution. It is against that order that this Court has been moved, and it is contended that the Additional District Judge had no jurisdiction to order the petitioner's prosecution. Section 195 (1) (b), Criminal P. C., directs that no Court shall take cognizance of any offence under Section 210 when such offence is alleged to have been committed in or is relation to any proceeding in any Court, except on the complaint in writing of such Court or of some other Conrt to which such Court is subordinate. The offence was committed in relation to a proceeding is the Court of the Munsif who, however, did not act under the section. The question, therefore, is whether the Court of the Additional District Judge is the Court to which the Munsif's Court is subordinate. Sub-section (3) of Section 195 declares that for the purposes of this section a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees of such former Court.

(3.) The question, therefore, resolves itself into this. Is the Court of the Additional District Judge the Court to which appeals ordinarily He from the Court of the Muneif ? Section 3, Civil Courts Act, 1887, declares that there should be four classes of civil Courts, namely, (i) the Court of the District Judge, (2) the Court of the Additional Judge (3) the Court of the Subordinate Judge, and (4) the Court of the Munsif. This section, it will be observed, makes a distinction between the Court of the District Judge and the Court of the Additional Judge. The functions of the Additional District Judge are prescribed by Sub-section (2) of Section 8 which declares that Additional District Judges shall discharge any of the functions of a District Judge which the District Judge may assign to them and in the discharge of those functions, they shall exercise, the same powers as the District Judge. The Court of the Additional District Judge, therefore, is not the Court to which appeals ordinarily lie from the Court of the Munsif. Such appeals ordinarily He to the Court of the District Judge who may however, under Section 8 (2) assign them to the Additional District Judge. But Section 21 (3) provides that where the functions of receiving any appeals which lie to the District Judge under Sub-section (1) or Sub-section (2) (that is to say, appeals from Subordinate Judges and Munsifs) has been aligned to an Additional Judge, the appeals may be preferred to the Additional Judge. If, therefore, the District Judge of Muzaffarpur has assigned to the Additional Judge the function of receiving appeals from the Munsifs, then such appeals will ordinarily lie to the Additional Judge. Whether this has been done in the district of Muzaffarpur does not appear from the record of this case because the petitioner did not raise this point when he was called upon to show cause why the Additional District Judge should not direst his prosecution. Had there been any substance in the point I have no doubt it would have been taken. As it was not taken there is no material on which to come to decision on the record of this case. I decline to entertain it now.