PETITIONER: NARAIN DAS Vs. RESPONDENT: THE STATE OF UTTAR PRADESH DATE OF JUDGMENT: 14/09/1960 BENCH: ACT: Appeal-Forum--Single Judge of High Court exercising civil jurisdiction refusing to file complaint-Appeal, if lies to Supreme Court-Code of Criminal Procedure, 1898 (V of 1898), ss. 195 and 476-B. HEADNOTE: During the pendency of a civil writ petition in the Allahabad High Court, one N moved an application under s. 476, Code of criminal Procedure, for making a complaint under s. 93, Indian Penal Code, against T. A single judge who was seized of the case rejected the application. Thereupon N presented an appeal against the order of rejection of his application before the Supreme Court under S. 476-B, Code of Criminal Procedure. Held, that the appeal did not lie to the Supreme Court but that it lay to the Appellate Bench of the High Court. The decrees of a single judge of the High Court exercising civil jurisdiction were ordinarily appealable to the High Court under cl. 1o of the Letters Patent of the Allahabad High Court read with cl. 13 of the U. P. High Courts (Amalgamation) Order, 1948, and as such the Court constituted by the single judge was a court subordinate to the Appellate Bench of the High Court within the meaning of s. 195(3) of the Code. M. S. Sheriff v. The State of Madras, [1954] S.C.R. 1144, distinguished. 677 JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: In the matter of
maintainability of appeal in the Supreme Court of India.
Mohan Lal Agarwala, for the petitioner.
G. C. Mathur and C. P. Lal, for the respondent No. 1.
1960. September 14. The Judgment of the Court was
delivered by
RAGHUBAR DAYAL J.-Narain Das filed a civil writ petition
under Art. 226 of the Constitution in the High Court of
Judicature at Allahabad. He subsequently moved an
application under s. 476 of the Code of Criminal Procedure
(hereinafter called the Code) for making a complaint under
s. 193, Indian Penal Code, against Phanish Tripathi alleging
that a certain statement in an affidavit filed by the latter
was false. The learned Judge who heard this application,
holding that the appellant had not succeeded in showing that
any portion of the affidavit of Tripathi filed on May 14,
1959, was false, dismissed the same. It is against this
order of the learned Judge of the High Court that Narain Das
has filed this memorandum of appeal under s. 476B of the
Code. The Registry has submitted the memorandum of appeal
with a report for determining the question whether the
appeal is competent in this Court.
Section 476 of the Code is to be found in Ch. XXXV which is
headed ‘Proceedings in case of certain Offences Affecting
the Administration of Justice’. Section 476 empowers any
Civil, Revenue or Criminal Court, when it is of the opinion
that it is expedient in the interests of justice that an
inquiry should be made into any offence referred to in s.
195(1) (b) or (c) which appears to have been committed in or
in relation to a proceeding before it, to file a complaint,
after such inquiry as it thinks necessary, before a
Magistrate of Class having jurisdiction. It is clear
therefore that where an offence referred to in s. 195(1) (b)
or (c) is committed in or in relation to a proceeding in a
Civil Court, an inquiry under s. 476 and. the action taken
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on that inquiry by the Civil Court, are in relation to that
proceeding itself.
Any person aggrieved by an order of a Court under s. 476. of
‘the Code may appeal in view of s. 476B to the Court to
which the former Court is subordinate within the, meaning of
s. 195(3), which provides that for the purposes of the
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. The decrees of a
single Judge of the High Court exercising civil jurisdiction
are ordinarily appealable to the High Court under el. 10 of
the Letters Patent of the Allahabad High Court read with el.
13 of the United Provinces High Courts (Amalgamation) Order,
1948. It is true that the decision of a single Judge of the
High Court is as much a decision of the High Court as the
decision of the appellate Bench hearing appeals against his
decrees. But the Court constituted, by the single Judge is
a Court subordinate to the appellate Bench of the High Court
in view of the artificial judicial subordination created by
the provisions of s. 195(3) to the effect’ ‘ a Court shall
be deemed to be subordinate to the Court to which appeals
ordinarily lie from the appeal. able decrees…’. In the
case of a Civil Court which passes appealable decrees, that
Court is deemed to be subordinate to the Court to which
appeals ordinarily lie from its decrees. In’ the case of a
Civil Court from whose decrees no appeal ordinarily lies,
that Court is deemed subordinate to the principal Court
having ordinary original civil jurisdiction within the local
limits of whose jurisdiction the former Court is situate,
even though normally such a Court will not be subordinate to
the principal Court having ordinary original civil
jurisdiction within whose local limits it is situate.
It was urged by the learned Advocate for Narain Das that the
order of the learned single Judge under
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s.476 did not amount to a decree and that therefore the
provisions of s. 195(3) were not applicable. It is not
necessary for us to express an opinion on the question
whether the order of the learned single Judge under s. 476
is appealable under cl. 10 of the Letters Patent or not. A
right of appeal against that order is given by- the
provisions of s. 476 B. The forum of appeal is also
determined by the provisions of s. 476B read with s. 195(3),
and the only relevant consideration to determine the proper
forum for an appeal against such an order of the single
Judge is as to which Court the appeals against appealable
decrees of the single Judge ordinarily lie. Such appeals
lie to the High Court under cl. 10 of the Letters Patent of
the Allahabad High Court, and therefore this appeal lies to’
the High Court.
Learned counsel for the appellant relied on the decision of
this Court in M. S. Sheriff v. The State of Madras (1) in
support of his contention that an appeal under s. 476B lay
to this Court from the decision of a single Judge of a High
Court refusing to file a complaint under s. 476 of the Code.
That case is distinguishable as the question considered in
that case was whether an appeal lay to this Court under s.
476B of the Code from an order of a Division Bench of a High
Court. It did not deal with the question whether an appeal
lay to this Court under s. 476B of the Code from an order of
a single Judge of the High Court. No appeal lies to the
High Court against the decision of a Division Bench of the
High Court and therefore an appeal under s. 476B from an
order of the Division Bench of the High Court must lie to
this Court.
The fact that an appeal lies to this Court from the order of
a single Judge of the High Court where the High Court
certifies, under Art. 132 of the Constitution, that the case
involves a substantial question of law as to the
interpretation of the Constitution, is of no assistance to
the appellant’s contention ‘that this appeal is competent in
this Court. It cannot be said that an appeal ordinarily
lies to this Court from the
(1) [1954] S.C.R. 1144.
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judgment of a single Judge of a High Court because such an
appeal lies with a certificate granted under Art. 132.
We therefore hold that the present appeal does not lie to
this Court and that it lies to the High Court of Judicature
at Allahabad. We therefore direct that the memorandum of
appeal be returned for presentation. to the proper Court.
Appeal incompetent.