(THAKUR) BILAS SINGH Vs. EMPEROR

JUDGEMENT

(1.) This appeal was filed in the Court of the District Judge of Bareilly from an order of the election commissioners purporting to act as a civil Court under Section 476, Criminal P.C. As the learned District Judge happened to be one of the Commissioners himself he referred the case to this Court recommending that it should be transferred from his file. Without prejudice to the question whether an appeal lay we directed that the case be transferred to the High Court.

(2.) A preliminary objection has been taken on behalf of the respondent that if the commissioners had no jurisdiction to proceed under Section 476, Criminal P.C. no appeal lay from their order at all. We thick that the preliminary objection cannot prevail. The commissioners have professedly acted as a Civil Court and assumed jurisdiction under Section 476, Criminal P.C. As an appeal is expressly provided from an order passed by a civil Court under Section 476, Criminal P.C., the present appeal does lie even though the commissioners might have acted without jurisdiction. This principle was laid down as early as 1891 in the case of Jwala Prasad V/s. Salig Ram (1891) 13 All. 575. That this has been the uniform practice of this Court is shown by the judgment in the case of Walayat Husain V/s. Ramlal (1914) 12 A.L.J 1113. A Bench of this Court, of which one of us was a member, has recently held in the case of Nasir Khan V/s. Itwari A.I.R. 1924 All. 144, that the right of appeal doee not depend on what a Court ought to have done but on what it actually did. In the cases of Ranjit Misser V/s. Ramudar Singh (1912) 16 C.L.J. 77 and Kalipada Karmakar V/s. Shekhar Basini Dasya (1916) 24 C.L.J. 235, Mukherji, J., laid down that where jurisdiction was usurped by a Court in passing an order against which an appeal would lie if it had been passed with jurisdiction, an appeal against the order could not be defeated on the ground that the order was made without jurisdiction. These cases have been recently followed in the case of Bandiram Mooherjee V/s. Purna Chandra Roy (1918) 45 Cal. 926. There is therefore imple authority for holding that because in appeal would have lain if the Commissioners bad acted with jurisdiction, an appeal lies when they have purported to act as such even though in reality without jurisdiction.

(3.) Section 476-B, Criminal P.C., provides that an appeal shall lie from an order passed by a civil Court under Section 476 to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3), and this last named section provides that in the case of a civil Court from whose decrees no appeal ordinarily lies, the Court shall be deemed to be subordinate to the principal Court having ordinary civil jurisdiction within the local limits of whose jurisdiction such civil Court is situate. It follows that if the Election Commissioners were such civil Court the appeal from their order passed under Section 476, Criminal P.C., should lie to the District Judge of Bareilly.