Kirpa Ram Jagan Nath Vs. Thakar Hans Raj - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 2, goods clerk, railway station, simla, and bishan das sou of ishar das, school master in village ohakkar and dismissed the complaint on 3rd june 1948 on the ground that there was no explanation as to why the complainant had delayed the filing of the complaint when he knew that the voucher had been forged and that an attempt bad been made to charge from him more sum than due. on examining any record under section 435 or otherwise, the high court or the sessions judge may dirfct the district magistrate by himself or by any of the magistrates subordinate to him to make, and the district magistrate may himself make or direct any subordinate magistrate to make, further inquiry into any complaint which bas been dismissed under section 203, or sub-section (3) of section 204, or into the case of any person accused of an offence who has been discharged :provided that no court shall make any direction under this section for inquiry into the case of any person who has been discharged, unless such person has bad an opportunity of bhowing ease why bush direction should not be made. there is a certain well named chah kotwalla in abadi deh of village hai not, and belongs to the complainants, who are embracers in the well. on the eastern side of ahata chah of this well there is an open space eleven karams wide extending up to a small lane which is sis hat ams in width and across which there is a baithah of the accused. held that the magistrate had failed to exercise a sound discretion in pro.orderharnam singh, j.1. thakar hans raj instituted a criminal complaint against kirpa eam and jagan nath under sections 468 and 471, penal code, on the allegations that the complainant had sent to the accused firm 895 bags of first claes potatoes weighing 890 maunds which were sold by the accused at a fairly high rate but that they have allowed him a low rate and the accused had received from the complainant bs. 2,000 as demurrage oharge whereas they had not paid a single pie on that account to the railway department. the complaint further states that the accused had debited the complainant a sum of re. 3,000 on account of cash payment made to him while in fast no such payment was made to him. the gravamen of the charge is that the accused had fabricated false documents to support false claims.2. the additional district magistrate, simla, examined hans kaj complainant, harbhagwan p.w. 2, goods clerk, railway station, simla, and bishan das sou of ishar das, school master in village ohakkar and dismissed the complaint on 3rd june 1948 on the ground that there was no explanation as to why the complainant had delayed the filing of the complaint when he knew that the voucher had been forged and that an attempt bad been made to charge from him more sum than due. he further held that the dispute between the parties related to the rendition of accounts and was of a purely civil nature.3. the complainant applied to the court of the sessions judge, ambala, under section 436, criminal p.c., for the revision of the order passed by sardar hardial singh, magistrate 1st class, simla, on 3rd june 1948 and the learned sessions judge, ambala, on 12th june 1948, without issuing any notice to the accused allowed the petition for revision and sent the case back to the district magistrate for entrusting the case to any other magistrate of competent jurisdiction for further enquiry into the matter. kirpa bam and jagan hath have come to this-court for the revision of the order passed by the-learned sessions judge, ambala, on 12th june1 1948.4. before proceeding further, i may mention1 at this stage that subsequent to the order of the learned sessions judge referred to above, the additional district magistrate, simla, has examined amar nath, p.w. 4 and daulat eam, p, w. 5 and on a review of the entire evidence he has come to the conclusion that there was a prima, facie case under sections 468 and 471, penal code and that-being his view he has issued process compelling: the attendance of kirpa eam and jagan nathin court.5. counsel contends that the dispute between-the parties was purely of a civil nature and that the complainant should not be allowed to utilize the machinery of criminal courts to establish his title to property. he next contends that after the delay that had occurred in this case an order for further enquiry into the matter was not a proper order. he urges that the learned sessions judge was not competent to dispose of the revision petition without any notice to kirpa earn and jagan natb.6. before disposing of the contentions on merits, the preliminary objection that the learned sessions judge was not competent to dispose of the revision petition without notice to kirpa earn and jagan nath may be examined. the relevant law is contained in s, 436, criminal p.c. which reads:on examining any record under section 435 or otherwise, the high court or the sessions judge may dirfct the district magistrate by himself or by any of the magistrates subordinate to him to make, and the district magistrate may himself make or direct any subordinate magistrate to make, further inquiry into any complaint which bas been dismissed under section 203, or sub-section (3) of section 204, or into the case of any person accused of an offence who has been discharged :provided that no court shall make any direction under this section for inquiry into the case of any person who has been discharged, unless such person has bad an opportunity of bhowing ease why bush direction should not be made.the proviso to section 436, criminal p.c. was added for the first time in 1923 and before the introduction of the proviso in 1923, it was not obligatory to give notice before an order was made under this section. it was, however, had generally that, in accordance with the principle of law embodied in the maxim audi alteratn partem, it was desirable in cases of discharge to give notice to the person concerned before an order was made against him for further enquiry. in the case of a summary dismissal of a com-plaint under section 203, the general trend of opinion was that notice need not be given inasmuch as the accused was not a party to the proceedings in the original court. under the present section as amended in 1923, by the addition of the proviso; it is imperative that before further enquiry is ordered in the case of a person who has been discharged, an opportunity should be given to the accused to show cause why further enquiry should not be ordered. the proviso, however, does not apply to the dismissal of a complaint under section 203. as a matter of fact it will be very undesirable to issue notice to the accused person in such oases. the accused person has no locus standi in inquiries under chap. xvi, criminal p.c. and the prinoiple is equally applicable where the order in such an enquiry is under revision. that being so, i find that the order of the learned sessions judge dated 12th june 1918 is not vitiated by any illegality.7. counsel cites ishar das and ors. v. emperor a. i.r. (14) 1927 lah. us :(28cr.l.j. 159) and contends that hasty resort to criminal courts to invoke aid against persons inflicting civil injuries should not be encouraged.8. the facts of that case as found by the magistrate were:there is a certain well named chah kotwalla in abadi deh of village hai not, and belongs to the complainants, who are embracers in the well. on the eastern side of ahata chah of this well there is an open space eleven karams wide extending up to a small lane which is sis hat ams in width and across which there is a baithah of the accused. the open alpaca had been in possession of no particular party and was commonly used by both. situated as it is between the chah' and baithak either of the partied are anxious to talie its exclusive possession and so the complainants taking an opportunity prepared a wall on the western side of the above referred lane to avoid all sorts of interference from the side of the accused. the complainants erected the wall in a short interval themselves and without the assistance of any mason, etc., probably to avoid trouble from the accused. they naturally, on learning this fact resented it, desired to demolish the wall, and aotuaily did remove some bricks from its top. the complainants then resisted it and brought the complaint.on those facts sbadi lal c. j. observed:it is a very sound principle that parties should not be encouraged to resort to criminal courts in cases in which the point at issue between them is one which can more appropriately be decided by a civil court.9. from the facts set out above it is obvious that ishar das v. emperor a.i.r. (14) 1927 lah. 145 :(28 cr.l.j. 158), has no application to 'the facts of this case.10. as stated above, counsel next contends that when the complaint is filed after a considerable delay the magistrate fails to exercise a sound discretion in proceeding with the com-plaint and that the proceedings in such oases should be quashed, he cites gulu tirith v. chatunmal menghomal, 8 i.c. 203 : 4 s. l. e. 68. the facts of that case were- that after the examination of the complainant and of one witness, the complainant withdrew his remaining witnesses, and allowed his complaint to be dismissed under section 253, criminal p.c. after the lapse of five months, the complainant again filed a renewed complaint on the same facts. the magistrate thereupon issued process against the accused. upon those faots hay ward j. c. and crough a. j. c. held that the magistrate had failed to exercise a sound discretion in pro. ceeding with the complaint and that the proceedings should be quashed. this case again is no authority for the proposition advanoed before me that the complaint of hans raj should be quashed because there was delay in the filing of the original complaint.11. no other point has been argued before me. the learned sessions judge acting under section 436, criminal p.c., has exercised a discretion vested in him by law and it is not open to me to interfere with the exercise of that discretion unless i come to the conclusion that the order passed under section 436, is perverse.12. finding, a3l do, that the dismissal of the complaint under section 203, criminal p. g, was not sustainable i hold that there is no force in this petition which fails and dismissed.

Judgment:
ORDER

Harnam Singh, J.

1. Thakar Hans Raj instituted a criminal complaint against Kirpa Eam and Jagan Nath Under Sections 468 and 471, Penal Code, on the allegations that the complainant had sent to the accused firm 895 bags of first claes potatoes weighing 890 maunds which were sold by the accused at a fairly high rate but that they have allowed him a low rate and the accused had received from the complainant Bs. 2,000 as demurrage oharge whereas they had not paid a single pie on that account to the railway department. The complaint further states that the accused had debited the complainant a sum of Re. 3,000 on account of cash payment made to him while in fast no such payment was made to him. The gravamen of the charge is that the accused had fabricated false documents to support false claims.

2. The Additional District Magistrate, Simla, examined Hans Kaj complainant, Harbhagwan p.w. 2, goods clerk, Railway Station, Simla, and Bishan Das sou of Ishar Das, school master in village Ohakkar and dismissed the complaint on 3rd June 1948 on the ground that there was no explanation as to why the complainant had delayed the filing of the complaint when he knew that the voucher had been forged and that an attempt bad been made to charge from him more sum than due. He further held that the dispute between the parties related to the rendition of accounts and was of a purely civil nature.

3. The complainant applied to the Court of the Sessions judge, Ambala, Under Section 436, Criminal P.C., for the revision of the order passed by Sardar Hardial Singh, Magistrate 1st Class, Simla, on 3rd June 1948 and the learned Sessions Judge, Ambala, on 12th June 1948, without issuing any notice to the accused allowed the petition for revision and sent the case back to the District Magistrate for entrusting the case to any other Magistrate of competent jurisdiction for further enquiry into the matter. Kirpa Bam and Jagan Hath have come to this-Court for the revision of the order passed by the-learned Sessions Judge, Ambala, on 12th June1 1948.

4. Before proceeding further, I may mention1 at this stage that subsequent to the order of the learned Sessions Judge referred to above, the Additional District Magistrate, Simla, has examined Amar Nath, P.W. 4 and Daulat Eam, P, w. 5 and on a review of the entire evidence he has come to the conclusion that there was a prima, facie case Under Sections 468 and 471, Penal Code and that-being his view he has issued process compelling: the attendance of Kirpa Eam and Jagan Nathin Court.

5. Counsel contends that the dispute between-the parties was purely of a civil nature and that the complainant should not be allowed to utilize the machinery of criminal Courts to establish his title to property. He next contends that after the delay that had occurred in this case an order for further enquiry into the matter was not a proper order. He urges that the learned Sessions Judge was not competent to dispose of the revision petition without any notice to Kirpa Earn and Jagan Natb.

6. Before disposing of the contentions on merits, the preliminary objection that the learned Sessions Judge was not competent to dispose of the revision petition without notice to Kirpa Earn and Jagan Nath may be examined. The relevant law is contained in S, 436, Criminal P.C. which reads:

On examining any record Under Section 435 or otherwise, the High Court or the Sessions Judge may dirfct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which bas been dismissed Under Section 203, or Sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged :

Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged, unless such person has bad an opportunity of Bhowing ease why Bush direction should not be made.

The proviso to Section 436, Criminal P.C. was added for the first time in 1923 and before the introduction of the proviso in 1923, it was not obligatory to give notice before an order was made under this section. It was, however, had generally that, in accordance with the principle of law embodied in the maxim audi alteratn partem, it was desirable in cases of discharge to give notice to the person concerned before an order was made against him for further enquiry. In the case of a summary dismissal of a com-plaint Under Section 203, the general trend of opinion was that notice need not be given inasmuch as the accused was not a party to the proceedings in the original Court. Under the present section as amended in 1923, by the addition of the proviso; it is imperative that before further enquiry is ordered in the case of a person who has been discharged, an opportunity should be given to the accused to show cause why further enquiry should not be ordered. The proviso, however, does not apply to the dismissal of a complaint Under Section 203. As a matter of fact it will be very undesirable to issue notice to the accused person in such oases. The accused person has no locus standi in inquiries under Chap. XVI, Criminal P.C. and the prinoiple is equally applicable where the order in such an enquiry is under revision. That being so, I find that the order of the learned Sessions Judge dated 12th June 1918 is not vitiated by any illegality.

7. Counsel cites Ishar Das and Ors. v. Emperor A. I.R. (14) 1927 Lah. US :(28Cr.L.J. 159) and contends that hasty resort to criminal Courts to invoke aid against persons inflicting civil injuries should not be encouraged.

8. The facts of that case as found by the Magistrate were:

There is a certain well named Chah Kotwalla in Abadi Deh of village Hai not, and belongs to the complainants, who are embracers in the well. On the eastern side of Ahata Chah of this well there is an open space eleven karams wide extending up to a small lane which is sis hat ams in width and across which there is a baithah of the accused. The open alpaca had been in possession of no particular party and was commonly used by both. Situated as it is between the Chah' and baithak either of the partied are anxious to talie its exclusive possession And so the complainants taking an opportunity prepared a wall on the western side of the above referred lane to avoid all sorts of interference from the side of the accused. The complainants erected the wall in a short interval themselves and without the assistance of any mason, etc., probably to avoid trouble from the accused. They naturally, on learning this fact resented it, desired to demolish the wall, and aotuaily did remove some bricks from its top. The complainants then resisted it and brought the complaint.

On those facts Sbadi Lal C. J. observed:

It is a very sound principle that parties should not be encouraged to resort to criminal Courts in cases in which the point at issue between them is one which can more appropriately be decided by a civil Court.

9. From the facts set out above it is obvious that Ishar Das v. Emperor A.I.R. (14) 1927 Lah. 145 :(28 Cr.L.J. 158), has no application to 'the facts of this case.

10. As stated above, counsel next contends that when the complaint is filed after a considerable delay the Magistrate fails to exercise a sound discretion in proceeding with the com-plaint and that the proceedings in such oases should be quashed, He cites Gulu Tirith v. Chatunmal Menghomal, 8 I.C. 203 : 4 S. L. E. 68. The facts of that case were- that after the examination of the complainant and of one witness, the complainant withdrew his remaining witnesses, and allowed his complaint to be dismissed Under Section 253, Criminal P.C. After the lapse of five months, the complainant again filed a renewed complaint on the same facts. The Magistrate thereupon issued process against the accused. Upon those faots Hay ward J. C. and Crough A. J. C. held that the Magistrate had failed to exercise a sound discretion in pro. ceeding with the complaint and that the proceedings should be quashed. This case again is no authority for the proposition advanoed before me that the complaint of Hans Raj should be quashed because there was delay in the filing of the original complaint.

11. No other point has been argued before me. The learned Sessions Judge acting Under Section 436, Criminal P.C., has exercised a discretion vested in him by law and it is not open to me to interfere with the exercise of that discretion unless I come to the conclusion that the order passed Under Section 436, is perverse.

12. Finding, a3l do, that the dismissal of the complaint Under Section 203, Criminal P. G, was not sustainable I hold that there is no force in this petition which fails and dismissed.