CHANDRA KUMAR HOME Vs. GOPI NATH KAR

JUDGEMENT

(1.) This rule was issued calling upon the District Magistrate of Mymensingh and also upon the opposite party to show cause why an order of the Subordinate Judge under Section 476, Criminal P.C. making a complaint against the petitioner to the Sub-divisional Magistrate under Section 192, Indian Penal Code, and reversing the order of the Munsif should not be set aside on the grounds that the order of the learned Subordinate Judge was illegal and could not be sustained in that the learned Subordinate Judge had no jurisdiction to hear the appeal from the order of the Munsif and make the complaint. The alleged offence arose in connexion with an application in a money execution ease in the Court of the 4 Munsif, Netrokona. There was an alteration made in this application filed before the Munsif and subsequently the opposite party suspected that the decree-holder and the clerk of the pleader, who is the present petitioner, and others had tampered with the application after it was filed. They prayed that the Munsif should make a complaint against these persons. The Munsif held a preliminary enquiry and rejected this application under Section 476 holding that there was no case for prosecution. Thereupon an appeal was made to the District Judge of Mymensingh and it was transferred by him for hearing to the Subordinate Judge, Babu Mayataru Haider. The Subordinate Judge reversed the order of the Munsif and made a complaint to the Sub- divisional Magistrate, Mymensingh against the petitioner under Section 192, Indian Penal Code.

(2.) The principal point urged in connexion with this rule is that the Subordinate Judge had no jurisdiction to hear the appeal under Section 476, Criminal P.C., inasmuch as under the provisions of that section an appeal is to be made to the Court to which the Court which refused to make the complaint is subordinate within the meaning of Section 195 (3). In this case there can be no doubt that the Court of the District Judge is the Court to which the Munsif's Court is subordinate and therefore the appeal was quite rightly made to the District Judge. But it is asserted that the District Judge had no jurisdiction to transfer the appeal for hearing to the Subordinate Judge. The transfer was made under the provisions of Section 22, Civil Courts Act which lays down that a District Judge may transfer to any Subordinate Judge under his administrative control any appeal from the decrees or orders of Munsifs pending before him.

(3.) It is contended that the order of the Munsif refusing to file a complaint is not such an order as referred to in Section 22, Civil Courts Act. In support of this we have been referred to some decisions of the Allahabad High Court in which it was held that Section 24 (1) (a), Civil P. C, or Section 22, Civil Courts Act, does not authorise the transfer to a Subordinate Judge of an appeal from an order of Munsif under Section 476, Criminal P.C. This was held in Manphool V/s. Budhu and also in Shiva Prosad V/s. Prahlad Singh . It was held in the latter case that an indication as to what an order connotes could, to some extent, be gathered from the definition of "order" in Section 2, Sub-section 14, Civil P.C. by way of analogy and the learned Judges held that it was not an order because it did not decide any matter finally against the person against whom the complaint was made nor was there any adjudication of any rights of the parties. "With all due respect to the learned Judges who decided this case, it appears to me that the Court in passing this order did decide as to rights of the parties, for the Munsif decided that they were not entitled to the complaint. There seems to be no reason to limit the meaning of the word "orders" in Section 22, Civil Courts Act so as to exclude an order of this kind. In another decision of the Allahabad High Court, Karimullah V/s. Rameshwar , it was held that a complaint by the Munsif did amount to an order within the meaning of Section 22, Civil Courts Act and the same view was held in this Court in Ram Charan Chanda Talukdar v. Tiruppulla Sheikh (1912) 39 Cal 774, although, as the law then stood, according to the provisions of Section 195(6), a Subordinate Judge could not hear an appeal under Section 476. The same view was also held in Lal Mahammad V/s. Deputy Inspector General of Police . Accordingly, there appears to be no substance in the objection that the order of the Subordinate Judge was without jurisdiction on this ground.