BAJRANG MARWARI Vs. DURGA PRASAD SAO

JUDGEMENT

(1.) The facts out of which this appeal arises are that a rent suit was instituted by Durga Prasad Sao, on 6 November 1935, claiming house rent of a shop from Nathmal, one of the petitioners, and another person and applied to the Munsif on 8 November 1935, for attachment before judgment of moveables in the shop of the defendants. The Munsif ordered notice to issue to the defendants, and it was returned by the peon as having been served on them. Subsequently, however, the Munsif has come to a finding that this process was suppressed. The Munsif accepting the return of service at its face value, ordered the issue of an ad interim attachment before judgment in pursuance of which on 13 November 1935 the plaintiff and a civil Court peon went to the shop of the defendants in Jharia and began removing goods of the defendants. The peon wanted to take the goods away and bring them to the Court at Dhanbad.

(2.) The accused persons, according to the peon's report, abused him and the identifier and snatched away the goods saying "we will not allow you to take away the goods." The peon submitted his return of service on the following morning before the nazir. The plaintiff Durga applied to the Munsif requesting him to order the prosecution of the persons named in the peon's report under Section 183,1.P.C. Mean, while Nathmal, defendant, appeared on the 14 November, and showed a cause against the order for attachment before judgment. On 7th December 1935, the Munsif discharged the interim order of attachment holding that the plaintiff's allegation that the defendants were about to close their shop and abscond was utterly unfounded and malicious. The Munsif after considering the cause shown by Nathmal and others against their prosecution under Section 183, declined to order any proceedings to be taken. Durga Prasad thereupon presented to the District Judge a petition described as an appeal under Section 476-B, Criminal P. C, and entertained by the District Judge as such. I have to point out that no such appeal lay to the District Judge. The section gives an appeal against the refusal of a Subordinate Court to make a complaint under Section 476. Section 476 is the section giving a Court power to make a complaint of an offence referred to in Section 195(1), Clause (b) or (c). These are clauses which require the complaint of a Court for the institution of proceedings for offences under certain sections of the Indian Penal Code, when committed in relation to a proceeding in a Court. But the alleged offence which we are now considering is an offence under Section 183,1. P. C, which is not referred to in Section 476, Criminal P.C. The requisite for a prosecution under Section 183 is laid down in Section 195, Clause (a), Criminal P. C, and is that there should be a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate, that is to say, the peon was under the Code competent to file a complaint, failing which it could have been filed by a public servant to whom the peon is subordinate.

(3.) So the first question that arises is whether the peon was subordinate to the Munsif. Such a question was considered in Thakur Prasad V/s. Emperor AIR 1936 Pat 74. Macpherson, J., held that the process-serving staff were not under the rules then in force subordinate to the individual Courts issuing process for service by them. I may mention that the position has since been altered by an amendment of Rule 24, at p. 16, Vol. I of the High Court's General Rules and Circular Orders (Civil), but at the time of the proceedings that we are dealing with, this amendment had not been made and the state of the law was, as pointed out by Macpherson, J. in the decision cited. Therefore, in the first place, the application to the Munsif was one that he had no jurisdiction to entertain. In the second place, the appeal to the District Judge was one that he had no jurisdiction to entertain from there. An appeal has been presented to this Court purporting to be an appeal under Section 476-B, and I feel doubt whether any appeal lies to this Court under that section. There is, however, sufficient revisional jurisdiction to empower this Court to set aside an order passed without Jurisdiction in cases in which such interference is called for; and I do so. It is urged for the Crown and as against the interference of this Court that the District Judge being a public servant to whom the peon is subordinate had an independent power of his own under Section 195 (1)(a) of the Code to make a complaint, and that if a District Judge makes a complaint under that provision, the order is an administrative one. That may be; but the District Judge in the present case purports to act as a Court. He says: This Court will make a complaint under Section 476-B, Criminal P. C, which the subordinate Court might have made under Section 476.