SARAT CHANDRA BHATTACHARJEE Vs. HARI CHARAN DE

JUDGEMENT

(1.) This matter comes before us under somewhat peculiar circumstances and having regard to the lapse, of time since the date of the original rule in this case being Civil Revision No. 10 of 192S, namely, 3 May 1929, it is desirable to set out the facts which have given rise to the present application, on 24 September 1929. They are as follows : It appears that petitioner 1 was plaintiff in a certain, suit in the Court of the Munsiff of Karimganj in the District of Sylhet. The three other petitioners were his witnesses in the case. The plaintiff's suit was dismissed by the Munsiff on 5 October 1926. There was an appeal to the District Judge, but it was dismissed. A second appeal thereafter to this Court was summarily rejected under the provisions of Order 41, Rule 11, Civil P.C. What has happened since then, shortly stated, is this. One of the defendants named Gopinath made an application to the Munsiff, who had succeeded the Munsiff who had tried the case in the first instance, for an order against the petitioners under Section 476, Criminal P.C. on the allegation that certain offences mentioned in Section 195, Criminal P.C. had been committed by the plaintiff and his witness. That application was disposed of by the Munsiff on 8 December 1928, the Munsiff holding that there was no case for enquiry and therefore for the lodging of a complaint under Section 476, Criminal P.C. Gopinath did not prefer any appeal against the order of the Munsiff dismissing his application. But it appears that within a week or so-another defendant of the name of Haricharan who, it is alleged, it an uncle of Gopinath, made a substantive application on his own account for an order similar to that which was prayed for by Gopinath against the petitioners. This last mentioned application was disposed of by the Munsiff on 15 March 1929. The Munsiff held that there was a case for enquiry and he thereupon lodged a complaint under Section 476, Criminal P.C. on 27 March 1929. The petitioners thereupon preferred an appeal to the District Judge Mr. Edgley under the provisions of Section 476-B, Criminal P.C. If appears that Mr. Edgley without, sending for the record and without issuing notices to both the parties concerned in this case summarily dismissed the appeal on 12 April 1929. Against that order the petitioners moved this Court and obtained a rule on 3 May 1929, from my learned brother Mr. Justice Pearson sitting with Mr. Justice Mallik. That Bale being Civil Revision No. 10 of 1929 came on for hearing before Mr. Justic Graham and Mr. Justice Lort- Williams on 3 September 1929, and the order that was passed by their Lordships on that date runs as follows: This rule is directed against an order of the District Judge of Sylhet dismissing an appeal summarily under Order 41, Rule 11, Civil P.C. We discharge the rule on the ground that we have no jurisdiction in the matter.

(2.) Thereafter the present petitioners, moved the Vacation Bench (Mitter and S.K. Ghose, JJ.) and obtained a rule on almost the same terms as were stated in the original rule No. 10 of 1929.

(3.) No doubt in Mr. Edgley's order reference is made to Order 41, Rule 11, Civil P.C. But it is quite clear that Mr. Edgley had to dispose of the appeal which was pending before him under the provisions of Section 476-B, Criminal P.C. and under no other section. The reference therefore to Order 41, Rule 11, Civil P.C. was clearly irrelevant in the circumstances. As regards the question whether the learned Judges, Graham, J. and Lort-Williams, J. had jurisdiction to dispose of the rule in the way in which, such rules are ordinarily disposed of by this Court the position appears to have been this. It appears that for a number of years when Sir Lancelot Sanderson was Chief Justice and more especially after the decision of the Full Bench in the case Emperor V/s. Har Prasad (1919) 40 Cal. 477, the Bench taking the criminal, appellate and revisional business of the Court had always been authorized to entertain applications in connexion with orders made by civil Courts under Secs.195 and 476, Criminal P.C. We have made enquires into the matter and we have satisfied ourselves that in the Daily List which was printed, it was specifically stated that the Criminal Bench were to deal with applications in connexion with orders made by Civil Courts under Secs.195 and 476, Criminal P.C. Through some omission or other on the part of the office, this authorisation of the Criminal Bench had not been printed in recent years in the Daily List and, in consequence thereof, doubts arose whether the Criminal Bench had authority from the Chief Justice to deal with such applications. Those doubts are mainly responsible for the form of the order passed by Mr. Justice Graham and Mr. Justice Lort-Williams. Administrative action is being taken by the learned Chief Justice to prevent all such doubts in future. Be that as it may, it is perfectly clear that the order of 3 September 1929, was passed by Graham, and Lort-Williams, JJ. under a misapprehension. That being so, although the rule that was granted by my learned brothers, Pearson, and Mallik, JJ., was discharged on 3 September 1929, we are of opinion that that order would not stand in the way of our disposing of this rule which was granted by the Vacation Bench on its merits. To hold otherwise would amount to a denial of justice. Besides, the present Criminal Bench have been specifically authorised by the learned Chief Justice to dispose of the present Rule on its own merits. That being so, we have felt ourselves completely at liberty to go into the whole matter for ourselves and see whether or not there is any substance in the contention put forward before us by Mr. Hoy on behalf of his clients. It is perfectly clear that Mr. Edgley's order is unsupportable. Mr. Sen on behalf of the opposite party has made a vigorous attempt, as indeed it was his duty to do so, to support that order. But, as stated above, Mr. Edgley has not complied with the provisions of Section 476-B, Criminal P.C., the appeal to him being one which was in the exercise of the petitioners statutory right of appeal from the order passed by the Munsiff under Section 476, Criminal P.C. He has neither issued notices to both the parties concerned in the matter nor has he sent for the record and examined the case for himself and come to an independent finding of his own whether, in the circumstances disclosed, the present petitioners should, be put in jeopardy by a complaint being lodged against them That being so, if not for anything else, Mr. Roy is entitled to ask us to make the rule absolute. We have not been content with merely listening to the technical complaints made by Mr. Roy : but we have gone into the substance of the, thing and we are of opinion that on the merits Mr. Roy's clients have a good case. The Munsiff who gave the sanction at the instance of the defendant Hari Charan did not make any enquiry before he made a complaint against the present petitioners. It is true that tinder the provisions of Section 476, Criminal P.C. a preliminary enquiry is not legally necessary. But it has been laid down ever since the enactment of the present Section 476, Criminal P.C. that although a preliminary enquiry may not be legally necessary, it should in common prudence be held by every Court : before it passes an order under Section 476, Criminal P.C. That, as we understand, is the present case law in this Court. This preliminary enquiry was not held by the Munsiff. Further, it is to be remembered that, the application was made to the Munsiff who, it may be noted again, was the successor of the Munsiff who had originally tried the case, nearly two years and a half after the disposal of the case itself. The Munsiff who made the order complained of had no knowledge of the case, had not seen the witnesses and had to rely on the judgments which had been pronounced by the primary Court and by the Court of appeal below. In addition to all this, there is the circumstance that one application, made by one defendant namely, Gopinath, had already been dismissed. That was a factor which should have been and had to be taken into consideration. But it does not appear from the order of the Munsiff that this was taken into consideration; indeed none of these circumstances were ever taken into consideration by Mr. Edgley who had to dispose of the appeal. In these circumstances, in our opinion, it would not be just and proper that Mr. Roy's clients should be put to further trouble, inconvenience and expense. We think this is one of the cases in which this Court should interfere and put an end to these proceedings. We, therefore, direct that the rule be made absolute, that Mr. Edgley's order be set aside and that the complaint which had been made by the Munsiff at the instance of Hari Charan and all proceedings following thereon be set aside.