RAMDIN LAL Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted under Section 193, I.P.C., in respect of an offence said to have been committed in respect of false evidence said to have been given in the course of a deposition which he gave before a Second Class Magistrate, Mr. S.M. Rab. After the proceedings in which that deposition had been given had terminated, the accused in that case, one Mithu, moved for an order under Section 476, Criminal P.C., for the institution of proceedings and for the presentation of a complaint against the petitioner. By this time the officer who tried the previous case had been transferred and Mr. Khan referred the matter to the Sub-Divisional Officer or the District Magistrate to determine under Section 559, Criminal P.C., if necessary, who was to be considered the successor of Mr. Rab. A petition was also presented by Mithu to the Additional District Magistrate who took up the matter on this petition and purporting to act under Section 476-A, Criminal P.C., drew up a proceeding and framed a complaint under Section 193, I.P.C., on which the petitioner was tried and convicted as above. The regularity of these proceedings is challenged on the ground that the Additional District Magistrate had no jurisdiction to take any proceeding under Section 476-A, or to institute the complaint in respect of the offence committed in the Court of Mr. Rab.

(2.) Under Section 195(b) the essential preliminary to taking cognizance of an offence under Section 193, I.P.C., committed in a proceeding in any Court is that there should be the complaint in writing of such Court or some other Court to which such Court is subordinate. So the question raised is whether the Additional District Magistrate is some other Court to which the Court of the Second Class Magistrate is subordinate. Sub-section 3, Section 195 says that a Court shall be deemed to be subordinate for the purposes of this section to the Court to which appeals ordinarily lie from the sentences of the former Court. So we are to see to whom do appeals ordinarily lie from the Court of the Second Class Magistrate. The answer is in Section 407, Clause (1) of the Code, and the appeal is to the District Magistrate. There is power under Section 407(2) in the District Magistrate to direct that appeals may be heard by any Magistrate of the first class subordinate to to him and duly empowered and there is power to allow appeals to be presented to such a Subordinate Magistrate.

(3.) This does not, however, alter the provision of Section 407, Clause (1), under which it is to the District Magistrate that the appeal lies in the first instance. An Additional District Magistrate by virtue of Section 10, Clause (3), is deemed to be subordinate to the District Magistrate for the purpose of this section. It appears to be the opinion of all the High Courts that where a Sub-Divisional Officer or other Magistrate of the first class is empowered under Section 407(2) to hear or to receive appeals, this will not make him the Court to which the appeals ordinarily lie for the purpose of these sections, and I cannot find any principle on which the case of an Additional District Magistrate can be distinguished from the case of another Magistrate of the first class, subordinate to the District Magistrate. Therefore the complaint was presented by a Court which was not the proper Court having jurisdiction to present it.