E P KUMARAVEL NADAR Vs. TPSHANMUGA NADAR

JUDGEMENT

(1.) Three matters have been placed before this Full Bench and they can be dealt with conveniently in the same judgment as they all involve the same question. The first case arises out of a suit which was tried by the Subordinate Judge of Tinnevelly. The plaintiff contended that a post card which had been put in evidence by the first and second defendants on the allegation that it had been written by the third defendant to the second defendant was a false document. Subsequently the plaintiff filed an application asking the Court to prosecute the three defendants under the provisions of Section 476 of the Criminal P. C. for offences alleged to have been committed under Secs.463, 464, 471, 473 and 476 of the Indian Penal Code. The Court dismissed the application and the Subordinate Judge's decision was upheld by the judgment of the District Judge on appeal. The plaintiff has now asked this Court to revise the order of the District Judge under the provisions of Secs.4Jo and 439 of the Criminal P. C. and to direct the prosecution to take place. In the second case an application was made to the Court of the District Munsif of Tiruvarur by the petitioner, the assignee of a decree, to direct the prosecution of the respondents under Secs.206 and 207 of the Indian Penal Code. The application was granted by the District Munsif, but the respondents appealed to the District Judge of East Tanjore, who reversed the order of the District Munsif. The petitioner asks that the order of the District Munsif be restored by this Court under its powers of revision under Secs.435 and 439 of the Criminal P. C.. The third matter arises out of an application filed by the second defendant in a suit in the Court of the Subordinate Judge of Mayavaram against the respondents. The application was rejected by the Subordinate Judge and on appeal to the District Judge of East Tanjore the decision was upheld. The petitioner asks this Court to direct under the provisions of Section 115 of the Civil P. C. a complaint to be made.

(2.) Rule 57 of the Criminal Rules of Practice and Orders of this Court provides that every application made to a Criminal Court under the provisions of Secs.476, 476-A or 485, of the Criminal P. C. and every appeal filed against an order made under these sections, or filed in a Court of Session against an order of a Court of Small Causes in the mufassal under Section 486 of the Code of Criminal Procedure shall be registered as a Criminal Miscellaneous Petition and a Criminal Appeal respectively. The rule further directs that such applications or appeals when filed in a Civil Court shall be registered as Civil Miscellaneous Petitions and Civil Miscellaneous Appeals respectively and states that the rule applies to revision petitions also. The question which the Court is called upon to decide is whether the petitions now under discussion shall be registered as Criminal or Civil Revision Petitions. |n the recent case of In re D.S. Raju Gupta (1939) 1 M.L.J. 480 : I.L.R. (1939) Mad. 439, Pandrang Row, J., held that the jurisdiction which is exercised by a Civil Court in filing a complaint under Section 476 of the Code of Criminal Procedure is a jurisdiction exercised under that Code and that revision petitions to this Court should be filed on the Criminal Side and not on the Civil Side. The, learned Judge was of the opinion that Rule 37 was ultra vires. The question is one of considerable importance because the revisional powers of this Court under the Criminal P. C. are greater than the powers conferred on it by Section 115 of the Civil P. C.. Under the latter Code the Court can only interfere when a Subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. Under Section 439 of the Criminal P. C. the High Court has power to exercise any of the powers conferred on a Court of Appeal by Secs.423, 426, 427 and 428, and therefore has the power to interfere on a question of fact when in its opinion the finding of a Subordinate Court is against the weight of evidence. The question now under discussion has been the subject of other decisions of this Court and has also been debated in most of the High Courts of India. I shall in. due course refer to the cases which have been quoted to us in argument, but before doing so, it is desirable to refer in some detail to the sections of the Code of Criminal Procedure which have bearing on the question.

(3.) Section 195(1)(b) of the Code as it now stands states that no Court shall take cognizance of any offence punishable under Secs.194, 195, 196, 199, 200, 205 to 211 and 228 of the Indian Penal Code when the offence is alleged to have, been committed in, or in relation to, a proceeding in Court, except on the complaint in writing of the Court or of some other Court to which the Court is subordinate. Sub-section 1(c) contains a similar provision with regard to an offence described in Section 463 or punishable under Secs.471, 475 or 476 of the Indian Penal Code. Before the Criminal P. C. was amended the section did not require the Court to file the complaint. It only required the Court to give its previous sanction to the complaint being filed. Sub-section (3) of Section 195 reads as follows: 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 or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate: Provided that- (a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and (b) Where such appeals lie lo a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.