AMANUL HAQ Vs. GIRDHAR GOPAL

JUDGEMENT

(1.) This is headed as a Criminal Revision but I think, more appropriately, it should have bean filed as a civil revision inasmuch as the order sought to be revised was passed by the District Judge and not by the Sessions Judge, Although here again there is a slight error inasmuch as Mr. Hunter has described himself as Sessions Judge and not an District Judge; but it is the case of both parties that the order sought to be revised and passed by Mr. Hunter in his capacity of a District Judge and not in his capacity of a Sessions Judge. Learned Counsel on behalf of the opposite party however does not object to the nature of the proceedings before me, and I propose to dispose of the present application as a civil revision inasmuch as the point that has been taken by the applicant is that the Court below has no jurisdiction to pass the present order. The facts are that one Girdhar Gopal filed a suit for arrears of rent in the Court of an Assistant Collector of the Second Class. In connection with that suit the Assistant Collector was of the opinion that Girdhar Gopal had been guilty of a criminal offence and therefore he issued notice to him on 8 July 1933, to show cause why a complaint should not be filed against him. After hearing Girdhar Gopal, the Assistant Collector dropped the "proceedings on 26 July 1933. The original suit went in appeal to the Collector who disposed of the appeal on 18 September 1933. An application was then filed under Section 476-A by the defendants of the original suit praying that the Collector might be pleased to make a complaint against Girdhar Gopal. The Collector on 11 December 1933, ordered that a complaint under Section 193, Indian Penal Code, be filed against Girdhar Gopal for filing a false affidavit. It may be mentioned that Mirza Muhammad Husain, while passing the above order described himself as an Additional District Magistrate, although the order could have been passed, and was treated by everybody to have been passed as a Collector. Girdhar Gopal went in appeal under Section 476-B to the District Judge and he observed that he had no hesitation in holding that no good purpose could be served by proceeding with the prosecution. He therefore allowed the appeal of Girdhar Gopal and withdrew; the complaint that had been lodged by the Collector. I have already said that this order must be deemed to have been passed by Mr. Hunter as a District Judge.

(2.) In revision before me which I have treated as a Civil Revision, it has been contended by Mr. Sailanath Mukerji that no appeal lay to the District Judge and the order of Mr. Hunter is ultra vires. I have however come to the conclusion that an appeal under Section 476-B in the present case did lie to the District Judge. Under Section 476-B any person against whom a complaint has been made by a Civil, Revenue or Criminal Court might appeal to the Court to which the Court making the complaint is subordinate within the meaning of Section 195, Sub- section 3 and the superior Court may thereupon direct the withdrawal of the complaint. Under Sub-section 3, Section 195, Criminal P.C., a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decree of such former Court. Section 195, Clause 3, Criminal P.C., was amended in 1923 because of certain difficulties arising under the unamended section which was to the effect that a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie. It was under those circumstances a question of some difficulty when a particular order of a Court was not appealable at all and the parties were sometimes placed in an unenviable position because they had to remain content with an order of the first Court. The legislature therefore advisedly after the amendment said that in order to find out the subordination of Courts you have got to see where appeals ordinarily lie from the appealable decrees of the inferior Court. In the present case the applicants went to the Collector specifically under Section 476-A treating the Collector therefore as a superior or an appellate Court. Under Section 195, Clause 3, I have therefore got to see where appeals ordinarily lie from the appealable decrees of a Collector sitting as an appellate Court under the Tenancy Act. Under Section 243, Agra Tenancy Act, Local Act 3 of 1926, an appeal lies to the District Judge from the appellate decree of a Collector in any suit in which (a) a question of proprietary right has been in issue between the parties claiming such right in the first appellate Court and is in issue in the appeal or (b) a question of jurisdiction has been decided and is in issue in the appeal. An appellate decree of a Collector therefore is appealable to a limited extent, but when it is appealable, the appeal lies to the District Judge and therefore the case comes clearly within the ambit of Section 195, Clause 3, Criminal P.C. It is however contended by the applicants that appeals do not ordinarily lie from the appellate decrees of a Collector to the District Judge because it is only in certain specified cases that such an appeal lies to the District Judge and therefore it is argued that Mr. Hunter had no jurisdiction to hear the appeal that he did hear but as was pointed out by Dalai, J., in Ratan Lal V/s. Hafiz Abdul Hai 1930 All. 407: The determination of the superior Court however is not confined to the decrees which are appealable. What is stated is that a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees.

(3.) If the Collector passes any appealable decree in matters relating to the arrears of rent case, appeals from the Collector's decree would lie to the civil Court, and therefore the Court of the Collector under Section 476-B would be subordinate to the District Judge when a complaint is filed in any suit of this nature whether the actual decree in that particular suit be appealable or not. An appellate decree of the Collector is never appealable to a superior Revenue Court but is appealable to the District Judge alone in certain specified cases.