RAJANI KANTA KAYAL Vs. BISTOO MONI DASSI

JUDGEMENT

(1.) This is an appeal under Section 476B, Criminal P.C. against an order of the second Additional District Judge of 24-parganas complaining or purporting to complain under Section 476 against; the appellants recommending their prosecution under various sections of the Indian Penal Code. The fasts are that an application for the appointment as guardian of two minors was made by the third appellant Surendra Nath Haldar under an authority purported to have been given by the father of the ehildTen appointing Surendra Haldar as the guardian of the minors after the father's death. Subsquently the mother of the minors (the respondent Bistoomoni Dassi) applied to have the order appointing Surendra as the guardian of the minors revoked. In the course of these proceedings an award was filed on behalf of Surendra compromising the case on certain terms. This award was objected to by Bistoomoni and the whole case was then tried by the then Second Additional District Judge, Mr. G.N. Roy, who by his judgment dated the 8 May, 1926, held that the authority conferring the guardianship and the award were both false documents; and the learned Judge revoked Surendra's certificate of guardianship and appointed Bistoomoni guardian of the minors. Against this order an appeal has been preferred to this Court (being M.A. 312 of 1926) and this appeal is pending.

(2.) On the 1 September, 1926 an application was made by the respondent Bistoomoni before Mr. Jameson who succeeded Mr. G.N. Roy as the Second Additional District Judge for an order under Section 476, Criminal P.C. complaining against the appellants under several sections of the Indian Penal Code mentioned therein. On that application an order was passed by Mr. Jameson (to which I will refer later) on the day namely the 1 September 1926. This order was passed exparte. The papers were sent to the Additional District Magistrate of Alipore and summonses were issused against all the appellants, excepting the appellant Kishore Gayen which were served upon them on the 20 October 1926. The appeal to this Court was presented on the 5 January 1927, when it was placed before the Court and admitted. Mr. Roy Chowdhury who represents the Crown has taken a preliminary objection on the ground that the appeal, at any rate of the first four appellants, was filed out of time and is therefore barred under Art. 155 Limitation Act not having bean presented within 60 days of the order appealed against. The appellants are not entitled to any allowance of the time occupied in taking the necessary copies as appears from the dates mentioned on the back of the copy; but it is argued on their behalf that they are entitled under Art. 156 Limitation Act to 90 days from the date of the order. This contention of the appellants 13 clearly wrong The appellants having come to know of the ex-parte order passed against them on the 20 October last the appeal presented by them on the 15 January 1927 is on the face of it time-barred.

(3.) The appellants argue that this is an appeal from the order of a civil Court and should therefore be considered as an appeal in a civil case. This view is erroneous inasmuch as the right to appeal is given by the Criminal P.C. against an order passed under that Code, In Chunder Kumar Sen V/s. Mathuriya Debya A.I.R. 1228, it was held that an appeal under Section 476B, must be presented within the time prescribed by Art. 154 Limitation Act the appeal in that case being to a Court subordinate to a High Court. The same rule of law will apply to an appeal preferred under Section 476B against an order of the lower Court to the High Court the governing article being Art. 155, Limitation Act. In this view the appeal of the first four appellants must therefore be held to be time barred. But there is another circumstance which we cannot lose sight of. The appeal was admitted by our learned brothers Coming and Gregory, JJ. The facts on which the appellants rely for an extension of time if the appeal was held to be out of time, are mentioned in the petition. We are not in a position to say that these facts were not brought to the notice of the learned Judges who admitted the appeal and the might have thought that it was a proper case for concession in favour of the appellants. This view gain some strength from the decision of this Court in the case of Hamid Ali V/s. Madhu Sudan Das A.I.R. 1927. There Chotzner J., was of opinion that an appeal under Section 476 B, Criminal, P.C. must be treated as an ordinary appeal under the Criminal P.C. But Duval, J., was of opinion that such an appeal must be treated as a miscellaneous civil appeal and regulated by Order 41, Civil P.C. This difference of opinion between two learned Judges may afford a reasonable ground for appellants to suppose that the appeal was a civil appeal and they had 90 days time from the date of the order to prefer an appeal to this Court. In this view we propose to hear the appeal of the first four appellants.