(1.) THE Sub-Judge 2nd Class Kapurthala has filed a complaint against Hakim Rai petitioner under Ss. 193 and 471, I. P. C. Against that complaint and incidentally the order whereby it was decided to prosecute him, the petitioner, as permitted by section 476, Criminal P. C. , took an appeal to the District Judge, Kapurthala, who rejected the same on 9-7-1955. Hakim Rai has now come up in revision under section 439, Criminal P. C. , against which a preliminary objection is raised by the assistant Advocate General that against an order made by the District Judge, whose Court is a Civil Court, a revision can, if at all, lie under Section 115, C. P. C. and not under Section 439, Criminal P. C. His contention is that although the sub-Judge had in deciding the application of the opponent of Hakim Rai that he (Hakim rai) be prosecuted for perjury and forgery, to resort to the procedure laid down in section 476, Criminal P. C. , he was not for that reason converted into a Criminal court. According to the learned Assistant Advocate General the Sub-Judge continued to be a Civil Court against whose act of filing the complaint an appeal lay to the District Judge and not to a Sessions Judge. (See Section 476-B, Criminal p. C.)Shri Onkar Dass has stressed that it is the kind of the Court initiating proceedings under Section 476, Criminal P. C. , that would determine the revisional jurisdiction of the High Court and not the way or procedure following which he has disposed of certain proceedings. He has cited --'deonandan Singh v. Ramlakhan Singh', AIR 1948 Pat 225 (FB) (A); -- 'emperor v. Har Prasad Das', ILR 40 Cal 477 (PB) (B); -' emperor v. Venkanna', 17 Cri LJ 515: (AIR 1017 Mad 971) (FB) (C); --'abdul Haq v. Sheo Ram', 28 Cri LJ 296: (AIR 1927 All 324) (D); --'bholanath v. Achheram', air 1937 Nag 91 (E) and -- 'purna Chandra Dutta v. Sheikh Dhalu', AIR 1930 Cal 731 (2) (P ). On the other hand, Shri Anant Ram has cited certain authorities taking the opposite view that as ths Civil Court in such cases moves and holds enquiry under the provisions of an enactment regulating procedure in Criminal cases, it should be the Criminal Law under which action against a person is taken that should decide the revisional jurisdiction of the High Court. In the cases on Which he relies, viz. ,- 'hari Ram v. Emperor", AIR 1929 Lah 676 (G); --Dhanpat Rai v. Balak Ram', air 1931 Lah 761 (FB) (H); -- 'emperor v. Bhatu Sadu', AIR 1938 Bom 225 (PB) (I); --'valiram v. Govindram', AJR 1941 Sind 217 (J); --'abdul Hussein v. Mohamed Ibrahim', AIR 1937 Rang 526 (K); and --'d. S. Raju Gupta In re', AIR 1939 Mad 473 (L), it has been held that in such cases the High Court when moved in revision is moved under Section 439, Criminal P. C. There is no ruling of this Court on the point and the pronouncements of the High courts in India are in conflict. The question raised is of great importance and is likely to arise in other cases. I would, therefore, refer it to a Full Bench of this court. The question to be decided would be- "where a Civil Court of original jurisdiction has taken proceedings against a person under Section 476, Criminal P. C. , and filed a complaint against him and an appeal against that complaint has been dismissed by the Court to which such original Court was subordinate, as contemplated by Section 476-B. Criminal P. C. , would a revision against the order of the appellate Court be a revision in a Civil case under Section 115, Civil p. C. , or a revision on the Criminal side under Section 439, Criminal P. C. "? judgment falshaw, J. The question which has been referred to the Full Bench by my learned brother kesho Ram Passey J. , at the time then he was Chief Justice in Pepsu High Court, is
"where a civil Court of original jurisdiction has taken proceedings against a person under Section 476, Criminal P. C. , and filed a complaint against him and an appeal against that complaint has been dismissed by the court to which such original Court was subordinate, as contemplated by section 476-E, Criminal P. C. , would a revision against the order of the appellate Court be a revision in a civil case under Section 115, Criminal p. C. , or a revision on the criminal side under Section 439, Criminal P. C. ?"
(2.) THE case has arisen out of the fact that Hakim Ral petitioner was ordered to be prosecuted under Section 193, Indian Penal Code, by a Sub-judge of Kapurthala and his appeal against that order has been dismissed by the District Judge at kapurthala.
(3.) THE relevant provisions of law relating to these matters are as follows. Subsection (1) of Section 195 of the Criminal Procedure Code, reads-
"no Court shall take cognizance- (a ). . . . . (b) of any offence punishable under any of the following sections of the same Code (i. e. . Indian Penal Code), namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c ). . . . . " Sub-section (3) reads-"for the purposes of this section, 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 whose 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 situate. Provided that- (a) Where appeals lie to more than one Court, the Appellate court of inferior jurisdiction shall be the Court to which such court shall be deemed to be subordinate, and (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. " Section 476 (1) reads-
"when any civil Revenue or criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in Section 195, Subsection (1), Clause (b) or Clause (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a findng to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a magistrate of the first class having Jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such magistrate, and may bind over any person to appear and give evidence before such Magistrate. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200. . . . . . . . . . " We are not concerned with Section 476a, but Section 476b reads-"any person on whose application any Civil, Revenue or Criminal Court has refused to "make a complaint under Section 476 or Section 476a, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate court might have made under Section 476, and if it makes such complaint the provisions of that section shall apply accordingly. ";