M. S. Sheriff Vs. The State of Madras
& Ors  INSC 30 (18 March 1954)
VIVIAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA,
DAS, SUDHI RANJAN HASAN, GHULAM
CITATION: 1954 AIR 397 1954 SCR 1229
CITATOR INFO :
RF 1956 SC 391 (22) D 1961 SC 181 (5)
Criminal Procedure Code (Act V of 1898), s.
476B-Whether appeal competent to the Supreme Court from an order of Division
Bench of High Court directing the filing of a complaint for perjury.
Held that an appeal is competent to the
Supreme Court under s. 476B of the Code of Criminal Procedure from an order of
a Division Bench of a High Court directing the filing of a complaint for
Also held that the simultaneous prosecution
of civil and criminal proceedings regarding the same matter is likely to
embarrass the accused and so ordinarily, and in the absence of special
circumstances, the criminal proceedings should be given precedence and the
civil proceedings should be stayed pending the termination of the criminal.
CRMINAL APPELLATE JURISDICTION: Case No. 281
Appeal under article 132 of the Constitution
of India from the Judgment and Order dated the 1st August, 1951, of the High Court of Judicature at Madras in Criminal Miscellaneous Petitions Nos.1261
and 1263 of 1951.
K. Rajah Iyer (R. Ganapathy Iyer and M. S. K.
Aiyangar, with him) for the appellant/petitioners, 1145 H.J. Umrigar and S.,
Subramaniam for respondent No. 2.
1954. March 18. The Judgment of the Court was
delivered by BOSE J.-The question in this case is whether an appeal lies to
this court under section 476B of the Criminal Procedure Code from an order of a
Division Bench of a High Court directing the filing of a complaint for perjury.
Two persons, Govindan and Damodaran, filed
petitions under section 491 of the Criminal Procedure Code for release claiming
that they had been illegally detained by two Sub- Inspectors of Police who are
the appellants before us.
Govindan said he was being detained by one
Sub-Inspector and Damodaran said he was being detained by the other. Both the
Sub Inspectors said that the petitioners were not in their custody. The first
Sub-Inspector, who was concerned with Govindan, said that Govindan had never
been arrested by him and had not been in his custody at. any time. The other
denied that Damodaran was in his custody. He admitted that he had arrested him
at one time but said that he had been released long before the petition. Each
swore an affidavit in support of his return. In view of this conflict between
the two_ sets of statements the High Court directed the District Judge to make
Considerable evidence was recorded and
documents were filed and the District Judge reported that in his opinion the
statements made by the two Sub-Inspectors were correct.
The High Court disagreed and, after an
elaborate examination of the evidence, reached the conclusion that the
petitioners were telling the truth and not the Sub- Inspectors. The petitioners
were however regularly arrested after their petitions and before the High
Court's order; one was released on bail and the other was remanded to jail
custody by an order of a Magistrate. Accordingly their petitions became
infructuous and were dismissed.
After this, the petitioners applied to the
High Court under section 476 of the Criminal Procedure Code and 1146 asked that
the Sub-Inspectors be prosecuted for perjury under section 193, Indian Penal
Code. The applications were granted and the Deputy Registrar of the High Court
was directed to make the necessary complaints.
The Sub-Inspectors thereupon asked for leave
to appeal to this court. Leave was refused on the ground that no appeal lies,
but leave was granted under article 132 as an interpretation of articles 134
(1) and 372 of the Constitution was involved. The Sub Inspectors have appealed
here against that order as also against the order under section 476. In
addition, as an added precaution, they have filed a petition for special leave
to appeal under article 136 (1).
The first question we have to decide is
whether there is a right. of appeal. That turns on the true meaning of-section
476B of the Criminal Procedure Code read with section 195 (3). The relevant
portion of the former reads thus :- "Any person against whom a complaint
has been made" [under section 476] "may appeal to the court to which
such former court is subordinate within the meaning of section 195
(3)......" The latter section reads- "For the purpose 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........" The rest of the section does not concern us.
Two things are evident. First, that a right
of appeal has been expressly conferred by section 476B provided there is a
higher forum to which an appeal can be made; and second that the appellate
forum has been designated in an artificial way. The appeal lies to the court to
which the former court is subordinate within the meaning of section 195 (3).
But "sub. ordinate" does not bear its ordinary meaning. It is used as
a term of art and has been given a special meaning by reason of the definition
in section 195 (3): a fiction has been imposed by the use of the word
"deemed"., We have accordingly next to examine the content of the fiction.
1147 The section says that the court making
the order under section 476 shall be deemed to be subordinate to the court (a)
to which appeals ordinarily lie (b) from the appelable decrees or sentences of
such former court.
Now the former court in this case is a
Division Bench of the High Court. The only court to which an appeal ordinarily
lies from the appealable decrees and sentences of a Division Bench of a High
Court is this court. Therefore, a Division Bench of a High court is a court
"subordinate" to this court within the meaning of section 195 (3);
accordingly an appeal lies to this court from an order of a Division Bench
under section 476..
It was contended that there is no ordinary
right of appeal to this court and that such rights as there are those expressly
conferred by the Constitution in a very limited and circumscribed set of
circumstances, therefore, such appeals as lie to this court cannot be said to
We do not agree. Such an argument
concentrates attention on the word "ordinarily" and ignored the words
"appealable decrees or sentences". Before we can apply the definition
we have first to see whether there is a class of decrees or sentences in the
court under consideration which are;at all open to appeal. If there are not,
the matter- ends and there is no right of appeal under section 476.B. If there
are, then we have to see to which court those appeals will
"ordinarily" lie. It is evident that the only court to which the
appealable decrees and sentences of a Division Bench of a High Court can lie is
the Supreme Court. There is no other court to which an appeal can be made. It
follows that is the ordinary course in the case of all appealable decrees and
sentences and that consequently this is the court to which such appeals will
As there is a right of appeal we have next to
consider the matter on its merits and there the only relevant consideration is
whether "it is expedient in the interests of justice" that an enquiry
should be 1148 made and a, complaint filed. That involves a careful balancing
of many factors.
The High Court has scrutinised the. evidence
minutely and has disclosed ample material on which a judicial mind could
reasonably reach the conclusion that there is matter here which requires investigation
in a criminal court and that it is expedient in the interests of justice to
have it enquired into. We have not examined the evidence for ourselves and we
express no opinion on the merits of the respective cases but after a careful
reading of the judgment, of the High Court and the report of the District Judge
we can find no reason for interfering with the High Court's discretion on that
score. We do not intend to say more than this about the merits as we are
anxious not to prejudge or prejudice the case of either side. The learned
Judges of the High Court have also very -rightly observed in their order under
section 476 that they were not expressing any opinion on the guilt or innocence
of the appellants.
We were informed at the hearing that two
further sets of proceedings arising out of the same facts are now, pending
against the appellants. One is two civil suits for damages for wrongful
confinement. The other is two criminal prosecutions under section 344, Indian
Penal Code, for wrongful confinement, one against each Sub-Inspector. It was
said that the simultaneous prosecution of these, matters will embarrass the
accused. But after the hearing of the appeal we received information that the
two criminal prosecutions have been closed with liberty to file fresh
complaints when the papers are ready, as the High Court records were not
available on the application of the accused As these prosecutions are not
pending at the moment, the objection regarding them does not arise but we can
see that the simultaneous prosecution of the present criminal proceedings out
of which this appeal arises and the civil suits will embarrass the accused. We
have therefore to determine which should be stayed.
As between the civil and the criminal
proceedings we are of the opinion that the criminal matters should 1149 be
given precedence? There is some difference of opinion in the High Courts of
India on this point. No hard and fast rule ban. be laid down but we do not
consider that the possibility of conflicting decisions in the civil and
criminal courts is a relevant consideration. The law envisages such an
eventuality when it expressly refrains from making the decision of one court
binding on the other, or even relevant, except for certain limited purposes,
such as sentence or damages. The only relevant consideration here is the
likelihood of embarrassment.
Another factor which weighs with us is that a
civil suit often drags on for years and it is undesirable that a criminal
prosecution should wait till everybody concerned has forgotten all about the
crime. The public interests demand that criminal justice should be swift and
sure; that the guilty should be punished while the events are still fresh in
the public mind and that the innocent should be absolved as early as is
consistent with a fair and impartial trial. Another reason is that it is
undesirable to let things glide till memories have grown too dim to trust.
This,however, is not a hard and fast rule.
Special considerations obtaining in any particular case might make some other
course more expedient and just. For example, the civil case or the other
criminal proceeding may be so hear its end as to make it inexpedient to stay it
in order to give precedence to a prosecution order of under section 476.
But in this case we are of the view that the
civil suits should be stayed till the criminal proceedings have finished.
The result is that the appeal fails and is
dismissed but with no order about costs. Civil Suits Nos. 311 of 1951 to 314 of
1951, in the Court of the Subordinate Judge, Coimbatore, will be stayed till
the conclusion of the prosecution under section 193, Indian Penal Code. As the
plaintiffs there are parties here, there is no difficulty about making such an
The petition for special leave is dismissed.