LAWS(PVC)-1944-11-95

INDERDEO OJHA Vs. EMPEROR

Decided On November 01, 1944
INDERDEO OJHA Appellant
V/S
EMPEROR Respondents

JUDGEMENT

(1.) This is an application against the concurrent orders of the Courts below convicting the petitioner under Secs.193 and 199, Indian Penal Code, and sentencing him to six months rigorous imprisonment and a finp of Rs. 30 and in default of payment of the fine to further rigorous imprisonment for one month. The prosecution ease, shortly stated, is that in a proceeding for execution of a decree a notice under Order 21, Rule 22, Civil P. C, had to be served on one of the judgment-debtors, named Rame-shwar Marwari who was one of a large number of defendant judgment-debtors in a mortgage action. The petitioner swore an affidavit in support of the service said to have been effected on Rameshwar Marwari on 18 June 1941. In that matter the petitioner is said to have acted as the identifier. The prosecution alleged that at the material time Rameshwar Marwari was on pilgrimage at Badrinath in Garhwal Rstate. Later, Rameshwar Marwari appeared in Court, and alleged that the service report against him and the affidavit in support of the service sworn to by the petitioner, were false, inasmuch as he was not present at the place at which the notices appear to have been served. The executing Court held a preliminary enquiry, and, in the course of the enquiry, the petitioner showed cause against his proposed prosecution. He alleged that he did not personally know Rameshwar Marwari, that there were a number of persons of the same name, and that he identified a Rameshwar Marwari on enquiry made from other persons named.

(2.) The Subordinate Judge, in whose Court the execution proceedings were pending, accepted the explanation offered by the petitioner, and refused to make a complaint against him. Against his orders refusing to file the complaint, Rameshwar Marwari went up in appeal. The appeal was filed in the Court of the District Judge of Muzaffarpur who directed it to be heard by the Additional District Judge. After hearing the parties, the Additional District Judge directed that the complaint be filed against the petitioner. Accordingly, the petitioner was placed on his trial and convicted and sentenced by the Courts below as stated above. Against the orders of his conviction and sentence by the Courts below, the petitioner moved this Court in its revisional jurisdiction, and obtained the rule. The matter was first heard by a single Judge of this Court before whom the point was raised apparently for the first time that the complaint lodged against the petitioner, resulting in his conviction, had not been made by the competent authority within the meaning of Section 195 (3), Criminal P. C, inasmuch as the Court of the Subordinate Judge is not subordinate to the Court of the Additional District Judge. Reli-ance was placed upon the decision of Varma J., sitting singly in Harnandan Gir V/s. Bawan Singh A. I. R. 1941 Pat. 592 . In that case Varma J., laid it down that the Court to which a Subordinate Judge is subordinate within the meaning of Section 195 (3), Criminal P. C, is the Court of the District Judge and not the Court of the Additional District Judge, the reason being that appeals from the orders or decrees of Subordinate Judge "ordinarily lie" to the Court of the District Judge, and not to the Court of the Additional District Judge, and that consequently an Additional District Judge was not competent to file a complaint. As the single Judge of this Court before whom this case was first placed for hearing was of the opinion that this was a matter of some general importance, he directed that it should be heard by a larger bench. Hence, this matter has been heard at some length by us, and the parties given full opportunity, even by adjournment during the course of the hearing, to place all the relevant authorities and provisions of the law bearing on the point.

(3.) In this case, the facts are not at all in dispute. The Subordinate Judge, who was in seisin of the execution proceedings, and in whose Court the alleged false affidavit was filed by the decree-holder as sworn to by the petitioner, refused to file a complaint for the petitioner's prosecution for the alleged offences under Secs.193 and 199, Indian Penal Code. The appeal against the order of the Subordinate Judge refusing to file the complaint was preferred in the Court of the District Judge. For the sake of speedy disposal, the District Judge transferred this appeal to be heard by the Additional District Judge who, ultimately, directed that a complaint be filed against the petitioner, and, upon a complaint so filed, the petitioner has been convicted and sentenced by the Courts below. Mr. S. N. Sahay appearing in support of the petition has contended, in the first instance, that this was not a case in which there should have been a conviction on the peculiar facts of the present case. Admittedly, there were a number of persons bearing the same name and living in the town of Muzaffarpur. Hence, it may be that the petitioner identified the wrong person and swore an affidavit believing that he had identified the right person. There was, it is contended, enough room for a bona fide mistake. It was also pointed out in support of this contention that there were about 20 judgment-debtors to be served with the processes in the execution proceedings, and, it was not urged by the judgment-debtors that notices on the other persons to be served had not been properly and correctly served. Hence, it was contended that there was no motive for having a false service of processes and a false affidavit in support thereof filed in Court. Secondly, it was contended that, as the complaint had been filed by the Additional District Judge to whom the Subordinate Judge, who dealt with the case in the first instance, was not subordinate within the meaning of Section 195 (3), Criminal P. C, the whole proceedings, leading to the conviction and sentence of the petitioner, were void ab initio. Hence, the only question of law to be considered and decided in this case is whether the complaint filed in this case lead?ing to the prosecution and conviction of the petitioner was filed by the competent authority within the meaning of Section 195, Criminal P. C. As the offence is alleged to have been com?mitted in the course of the execution proceed?ings pending in the Court of the Subordinate Judge of Muzaffarpur, the question in controversy between the parties has to be determined with reference to the relevant provisions of the Criminal P. C. and of the Bengal, Agra and Assam Civil Courts Act, 12 of 1887, which, for the sake of brevity, will be referred to hereinafter as the Civil Courts Act. Section 195, Criminal P. C, provides that no Court shall take cognizance of any offence punishable under Secs.193 and 199, Indian Penal Code (confining our attention to the sections appro?priate to the present case) when such an offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. And Sub-section (3) of Section 195 provides that : For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which ap?peals ordinarily lie from the appealable decree, of such former Court...."