NAROTAM DAS AGARWAL Vs. BHAGWAN DAS

JUDGEMENT

(1.) This is an appeal under Section 476-B, Criminal P.C. from an order passed by the learned Civil Judge of Mirzapore refusing to entertain an application made to him under Section 476-A, Criminal P.C. The facts of the case are as follows : The appellant Lala Narotam Das Agarwal brought a suit against Nand Kishore and others in the Court of the Civil Judge at Mirzapore. A date was fixed for the hearing of that suit and it appears that on that date the appellant was also summoned by the defendants as a witness. It is alleged that the appellant came to Court in connexion with the hearing of his suit and while he was sitting in the chamber of his vakil within the Court premises, the respondents Bhagwan Das and Rajit Ram served a warrant of arrest upon him. It appears that Nand Kishore, one of the-defendants in the appellant's suit, had previously obtained a decree against the appellant from the Court of the Munsif of Mirzaporo and had put that decree into execution. It was in execution of that decree that the warrant of arrest had been issued by the Court. The appellant was put under arrest and was immediately after, wards produced before the Munsif of Mirzapore. He at once alleged that his arrest was illegal inasmuch as he had come to prosecute his suit and was sitting in his vakil's chamber within the Court premises. In answer to that allegation the respondents Bhagwan Das and Rajit Ram, the former being the general agent of Nand Kishore and the latter a process-server, asserted that the appellant had been arrested not in the Court premises, but some, where in the city. The Munsif of Mirzapore instituted an inquiry in the course of which he recorded on oath the statements of the two respondents and also of two vakils produced by the appellant. As a result of that inquiry, he thought that the respondents had given false evidence before him, and he therefore issued a notice, in the first instance, to Bhagwan Das to show cause why a complaint for perjury should not be made against him under Section 476, Criminal P.C. After having heard Bhagwan Das in answer to that notice, the Munsif apparently changed his mind, for some reason or other, and did not consider it proper or necessary to make a complaint for perjury as ho intended to do at first. Thereupon the appellant made an application under Section 476-A, Criminal P.C. in the Court of the Civil Judge at Mirzapore praying that a complaint for perjury be made against the respondents. The learned Civil Judge has rejected that application apparently on the ground that he was not competent to entertain it because the appellant had not previously filed an appeal under Section 476-B from the order passed by the Munsif of Mirzapur refusing to take action under Section 476, Criminal P.C. Hence the present appeal. The argument on behalf of the appellant is that the learned Civil Judge was wrong in holding that the appellant had a right of appeal from the order passed by the learned Munsif refusing to take action under Section 476, Criminal P.C. That argument is obviously sound and well founded on the language of Section 476-B, Criminal P.C., which gives the right of appeal. The open, ing words of the Section are: Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under Sec, 476 or Section 476-A or against whom such a complaint has been made, may appeal to the Court....

(2.) From this it is quite clear that a person who has made no application for action being taken under Section 476 has no right of appeal under Section 476-B, Criminal P.C. The learned Counsel for the respondents challenged the accuracy of that proposition and relied upon a decision of this Court in Emperor V/s. Ram Prasad . It was argued upon the basis of that decision that there was a right of appeal in any case, whether an application had or had not been made to the Court under Section 476, Criminal P.C. A perusal of the decision would however make it quite clear that it does not support the contention made by the learned Counsel. It relates only to the case of a person against whom a complaint has been made and not to a person on whose application the Court has refused to make a complaint. The passage which I have already quoted from Section 476-B clearly gives the right of appeal to any person against whom any Court makes a complaint, whether on its own motion or upon an application made by a party. It is therefore beyond all doubt that the appellant could not have gone up in appeal from the order passed by the Munsif of Mirzapore refusing to take any action under Section 476, Criminal P.C. The order of the learned Civil Judge is therefore obviously wrong being based upon an erroneous assumption that the appellant had a right of appeal from the Munsif's order refusing to make a complaint.

(3.) If that were the only point to be considered in the case, the appeal would undoubtedly have succeeded, but there is another difficulty in the way of the appellant, and that is the question whether any appeal can lie to this Court from the order of the learned Civil Judge. The appellant had made an application under Section 476-A to the learned Civil Judge, and that application has been rejected. Under Section 476-B, the appellant has therefore a right of appeal "to the Court to which such former Court is subordinate within the meaning of Section 195(3)." The question therefore is whether the Court of the Civil Judge at Mirzapur can be deemed to be a Court subordinate to this Court within the meaning of Section 195 (3). Now Section 195(3) provides that: A Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court or, in the case of a Civil Court from whoso decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situated.