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1999 DIGILAW 738 (PAT)

Anjani Kumar Singh v. State

1999-08-09

R.N.SAHAY

body1999
Judgment R.N.Sahay, J. 1. This appeal purporting to be under Section 341, Cr PC is directed against the order dated 23-6-1984 of the Subordinate Judge, Vaishali, This miscellaneous case was filed under Section 151, CPC for restoration of Misc. Case No. 11/78 filed by the appellants father late Vaishi Singh for inquiry under Section 340, Cr PC against the respondent for prosecution of the respondent for allegedly making interpolation in the records of Partition Suit No. 8 of 1972. The learned Subordinate Judge decreed the suit in terms of compromise entered into by the parties. 2. It is not necessary to state the nature of interpolation allegedly made by the respondent. The simple question for consideration is whether the order of the Subordinate Judge dismissing the restoration petition is just and legal order. According to the Sub-ordinate judge when the application under Section 340, Cr PC is dismissed for default the order is revisable by the superior Court under Sections 399 and 400, Cr PC. 3. In Deonandan Singh V/s. Ramlakhan Singh, reported in AIR (35) 1948 Patna 225, a Full Bench of this Court has held hat when the appellate order passed under Section 476-B by civil or revene Court, the revision application is governed by Section 115, CPC and not by Section 439, Cr PC. A Civil Court acting under Section 476 does not exercise any criminal jurisdiction, so the appellate order would be revisable under Section 115, CPC. 4. This Full Bench decision was overruled in Mt. Rampati Kuer V/s. Jadunandan Thakur, (AIR 1968 Patna 100, a bench of five Honble Judges of this Court has held that an order passed by a Civil Court sitting as appellate Court under Section 476-B (New 340) is revisable under Section 439 (New 401) and not under Section 115, CPC. Full Bench held that the preliminary inquiry under Section 476 (New 340) may lead to the placing on trial of the alleged offender and his subsequent punishment and it must, therefore, held to be a criminal proceeding irrespective of whether the inquiry is conducted by the criminal Court or Civil Court or revenue Court. It was further held that order of Civil Court in respect of an offence under the Penal Code will come within the revisional jurisdiction of the High Court under Section 439 (New 401) and the High Court can interfere under Section 561-A (New 482). It was further held that order of Civil Court in respect of an offence under the Penal Code will come within the revisional jurisdiction of the High Court under Section 439 (New 401) and the High Court can interfere under Section 561-A (New 482). Full Bench also held that a distinction must be made between the order of the Court directing the filing of the complaint and the subsequent action of the Court in filing of the complaint that the right of appeal can be exercised under Section 476-B (New 340), Cr PC by the aggrieved party. 5. The Full Bench never dealt with the question with regard to remedy available to a person when an application under Section 340, Cr PC is dismissed for default. In other words, whether the application can be restored under Section 151, CPC. The learned Subordinate Judge held that the application of restoration under Section 151, CPC is not maintainable relying In Rev. V/s. Gopal Siddeshwar Deshpande, ILR Bombay (Vol. 32) 203. In this case, an application was made by the public prosecutor to the Subordinate Judge for sanction to prosecute for offences committed in his Court. The public prosecutor failed to appear in the Court on the day fixed for hearing. Therefore, the Subordinate Judge dismissed the application as for default. The public prosecutor appeared and made an application to review the order. The Subordinate Judge refused to do so. The Subordinate Judge held that there was no provision in the Cr PC to review his order. The public prosecutor moved the District Judge. The District Judge accorded sanction. 6. The Bombay High Court held that the District Judge had no jurisdiction to accord sanction. The District Judge could review the order of Subordinate Judge dismissing the application for default. The Bombay High Court further held that as there is no provision in the Cr PC which warranted the Subordinate Judge in rejecting or dismissing the application of the public prosecutor because of his failure to appear at the time the application was called on for hearing. The Subordinate Judge was bound to consider the application on its merits, even though the party who made it was not there to help the Court. 7. In Niranjan Lal Mittal V/s. Emperor, [AIR (31) 1944 Allahabad 40, an application filed before CJM for inquiry under Section 476-B was dismissed for default. The Subordinate Judge was bound to consider the application on its merits, even though the party who made it was not there to help the Court. 7. In Niranjan Lal Mittal V/s. Emperor, [AIR (31) 1944 Allahabad 40, an application filed before CJM for inquiry under Section 476-B was dismissed for default. An appeal was filed before the Sessions Judge treating the order of dismissal of default as refusal to file complaint. Plowden, J. held as follows : If the original Court records a finding and makes a complaint or refuses to make a complaint under Section 476, Cr PC, an appeal lies under Section 476-B, a dismissal in default does not amount to a refusal. If there is such a dismissal, the Court concerned under Section 476-A, on application or on its own motion may make a complaint or refuse to make it in which case an appeal lies to the High Court. A dismissal in default under Section 476-A does not amount to a refusal and in the event of such dismisal by a Sessions Court, an application in revision lies to the High Court. An appeal under Section 476-B can only be filed, thererfore, from an order refusing to make a complaint or from an order refusing to make a complaint giving reasons i.e. from an order equivalent to a judgment." 8. In this case also, the Subordinate Judge had no jurisdiction to dismiss the application under Section 340, Cr PC for default. This appeal under Section 341, Cr PC is not maintainable since there is no order directing for filing the complaint, but nevertheless in exercise of power under Section 227, Cr PC. I can examine the leglity of the Subordinate Judge dismissing the petition under Section 340, Cr PC for default. 9. As held by Bombay High Court, the application under Section 340, Cr PC cannot be dismissed for default, the order of Subordinate Judge dismissing the Misc. Case No. 11 of 1978 for default is set aside and he is directed to decide Misc Case on merits. 10. With this above observation, this appeal is disposed of.