Kuldip Singh Vs. The State of Punjab
& ANR  INSC 13 (15 February 1956)
Complaint by Court-Complaint by Senior
Subordinate Judge of offences committed in a proceeding before the Subordinate
Judge of the first class-Validity-Competency of the Additional Judge to
entertain appeal-Power of High Court in revision-Code of Criminal Procedure
(Act V of 1898), ss. 195 (3), 476, 476-A, 476-B, 439-The Punjab Courts Act (VI
of 1918), ss. 18,21-Code of Civil Procedure (Act V of .1908), s. 115.
The question as to which Court is competent
to make a com- plaint under s. 476-A read with s. 195(3) of the Code of
Criminal Procedure where none was made by the Court in which the offence was
committed or its successor Court, will depend on the nature of the proceeding
in which the offence was committed, whether civil, criminal or revenue, and on
the hierarchy of superior Courts to which an appeal from such proceeding will
ordinarily lie as contemplated by s.
195(3) of the Code, apart from such exceptions
as may be made in respect of any particular matters by any special
notifications or laws. Where, however, appeals ordinarily lie to different
courts, the one of the lowest grade will be the Court competent to make the
Wadero Abdul Bahman v. Sadhuram, ( 32
Cr. L. J. 1012] and M. S. Sheriff v. Govindan (A.I.R. 1951 Mad. 1060, 1061),
Under the Punjab Courts Act of 1918 and the
hierarchy of civil Courts established thereby, appeals from the Courts of the
various subordinate Judges who constitute distinct Courts do not ordinarily lie
to the Senior Subordinate Judge but to the District Judge and the Court of the
Additional Judge is not a Court of coordinate jurisdiction with that of the
District Judge. The Act neither mentions nor recognises an Additional District
Judge as a Court of that hierarchy.
Consequently, in a case where offences under
ss. 193 and 471 of the Indian Penal Code were alleged to have been committed in
a civil proceeding in the Court of a Subordinate Judge of the first class,
exercising jurisdiction under the Punjab Courts Act of 1918, and neither he nor
his successor made a complaint or rejected the application for the making of
it, the Senior Subordinate Judge had no jurisdiction to entertain the matter
and make the complaint either as a Court of appeal under s. 476-B or of Its own
authority under s. 476-A of the Code of Criminal Procedure and the Additional
17 126 Judge, by wrongly describing himself as an Additional District Judge,
could not assume a jurisdiction which he did not possess under those sections.
The High Court has power to revise orders of
subordinate Courts made without jurisdiction both under s. 439 of the Code of
Criminal Procedure and under s. 115 of the Code of Civil Procedure, therefore,
it was not necessary to decide under Art. 136 of the Constitution which of
these two sections applied in the present case, but the High Court erred in
upholding the complaint made by the Senior Subordinate Judge because that court
had no jurisdiction to make the complaint.
The High Court is not a Court to which the
Subordinate Judge of the first class is subordinate within the meaning of s.
196(3) of the Code of Criminal Procedure and
could not, therefore, make the complaint of its own authority and should have
remitted the application to the District Judge for disposal according to law.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 34 of 1955.
Appeal by special leave from the judgment and
order dated the 7th June 1954 of the Punjab High Court at Simla in Criminal
Revision No. 985 of 1953 arising out of the judgment and order dated the 9th
May 1953 of the Court of the Additional District Judge, Ambala.
Ramalal Anand and I. S. Sawhney, for the
Gopal Singh and P. G. Gokhale, for respondent
Jindra Lal and Gopal Singh, for respondent
1956. February 15. The Judgment of the Court
was delivered by BOSE J.-This appeal was argued at great length because of the
wide divergence of judicial opinion that centers round sections 195 and 476 of
the Criminal Procedure Code. The question is about the validity of a complaint
made against the appellant for perjury and for using a forged document as
genuine in the following circumstances.
The second respondent Amar Singh filed a civil
127 suit against the appellant for recovery of a large sum of money on the
basis of a mortgage in the Court of Mr. E. F. Barlow, a Subordinate Judge of
the First class. The appellant filed a receipt which purported to show that Rs.
35 000 had been paid towards satisfaction of the mortgage (whether in full
satisfaction or part is not clear), and in the witness box he swore that he had
paid the money and was given the receipt. Mr. Barlow held that the receipt did
not appear to be a genuine document and that the appellant's evidence was not
true. Accordingly he passed a preliminary decree against the appellant for the
full amount of the claim on 15-3-1950 and a final decree followed on 15-7-1950.
There was an appeal to the High Court but
that was dismissed on 9-5-1951. The High Court also held that the receipt was a
very auspicious document and that the appellant's evidence was not reliable.
The plaintiff then made an application in the
Court of Mr. W. Augustine, who is said to have succeeded Mr. Barlow as a
Subordinate Judge of the first class, asking that a complaint be filed against
the, appellant under sections 193 and 471 of the Indian Penal Code. But before
it could be beard Mr. Augustine was transferred and it seems that no
Subordinate Judge of the first class was appointed in his place; instead, Mr.
K. K. Gujral, a Subordinate Judge of the fourth class, was sent to this area
and be seems to have been asked to decide the matter. But as he was only a
Subordinate Judge of the fourth class be made a report to the District Judge
that he had no jurisdiction because the offences had been committed in the
Court of a Subordinate Judge of the first class. The District Judge thereupon
transferred the matter to the Senior Subordinate Judge, Mr. Pitam Singh, and
that officer made the complaint that is now under consideration.
The appellant filed an appeal against Mr.
Pitam Singh's order to the Additional District Judge, Mr. J. N. Kapur.
This learned Judge held that the Senior
Subordinate Judge (Mr. Pitam Singh) had no jurisdiction to make the complaint
because he was 128 not Mr. Barlow's successor. He also held, on the merits,
that there was no prima facie case.
The matter went to the High Court in revision
and the learned High Court Judge who beard the matter held that the Senior
Subordinate Judge had jurisdiction and that the material disclosed a prima
facie case. Accordingly, he set aside the Additional District Judge's order and
restored the order of the Senior Subordinate Judge making the complaint.
This raises three questions. The first
concerns the jurisdiction of the Senior Subordinate Judge Mr. Pitam Singh to
entertain the application and make the complaint. The second is whether the
Additional District Judge had jurisdiction to entertain an appeal against Mr.
Pitam Singh's order; and the third is whether the High Court had power to
reverse the Additional District Judge's order in revision. We will first deal
with Mr. Pitam Singh's jurisdiction to make the complaint. This question is
governed by the Criminal Procedure Code and by the Punjab Courts Act, 1918. We
will examine the Criminal Procedure Code first.
The offences said to have been committed are
ones under sections 471 and 193 of the Indian Penal Code, namely, using as
genuine a forged document knowing it to be forged and perjury. Section 195(1)
(b) and (c) of the Criminal Procedure Code prohibit any Court from taking
cognizance of either of these two offences except on the complaint in writing
of the Court concerned "or of some other Court to which such Court is
The offences were committed in the Court of
Mr. E.F. Barlow, a Subordinate Judge of the first class. It seems to have been
accepted that Mr. Gujral was not Mr. Barlow's successor because be was only a
Subordinate Judge of the fourth class, but whether he was the successor or not,
he neither made the complaint nor rejected the application. He declined to do
either because he said be had no jurisdiction; so also neither Mr. Barlow nor
Mr. Augustine made a complaint or rejected the application. That carries 129 us
on to section 476-A of the Criminal Procedure Code.
Section 476-A states that when the Court in
which the offence is said to have been committed neither makes a complaint nor
rejects an application for the making of a complaint, "the Court to which
such former Court is subordinate within the meaning of section 195, sub-section
(3)" may take action under section 476.
Section 476 authorises the appropriate Court,
after recording a finding that it is expedient in the interests of justice,
etc., to, among other things, make a complaint in writing and forward it to a
Magistrate of the first class having jurisdiction. That was done by Mr. Pitam
Singh. So the only question we have to decide on this part of the case is whether
the Court of the Senior Subordinate Judge over which Mr. Pitam Singh presided
was the Court to which the Court of Mr. Barlow was subordinate within the
meaning of section 195(3 ).
Now it is to be noticed that subordination
has been given a special meaning in this section. It is not any superior Court
that has jurisdiction, nor yet the Court to which the "former Court"
is subordinate for, what might be termed, most general purposes, but only the
Court to which it is subordinate within the meaning of section 195(3).
Section 195(3) states that- "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" and then follows this proviso- "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 130 (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".
These provisions have given rise to much
conflict in the High Courts. The controversy has centered round the word
"ordinarily". One class of case, of which Wadero Abdul Rahman v.
Sadhuram(1) is a sample, holds that "ordinarily" means "in the
majority of cases" and that it has no reference to the particular case in
hand. We do not think that is right because that gives no meaning to the
proviso to sub-clause (3). If appeals lie to a particular Court, e.g., the
District Court, in the majority of cases and to another Court say the High
Court, only in a few cases, then the inferior tribunal is a fixed quantity and
so the need to choose between the inferior and the superior Court cannot arise.
That makes sub-clause (a) to the proviso otiose;
also, it does not necessarily follow that the
appeal in the majority of cases will always lie to the inferior Court.
Cases may occur in which the majority of
appeals would go to the higher of two given tribunals; and in any case this
interpretation has the disadvantage that a Court may be compelled to call for
and go into a mass of statistics to ascertain which of two Courts entertains
the majority of appeals over a given period of time, as well as to determine
what is the appropriate period of time.
Another view considers that the word means
that the higher Court is the one to which there is an unrestricted right of
appeal and so cannot apply when any restriction intervenes such as when the
right of appeal is limited to a particular class of cases or is hedged in by
conditions. This was the view taken in M. S. Sheriff v. Govindan (2).
Other views are also possible but we do not
intend to explore them. In our opinion, the matter is to be viewed thus. The
first question to be asked is whether any decrees, orders or sentences of the
original Court (1) [1930) 32 Cr. L.J. 1012. (2) A.I.R. I 1951 Mad. 1060, 1061,
131 are appealable at all. If they are not, and the Court is a Civil Court,
then,, under section 195(3), the appeal against the order making or refusing to
make a complaint will be to the principal Court of ordinary original civil
If, however, appeals from its various decrees
and orders lie to different Courts, then we have to see to which of them they
"ordinarily" lie and select the one of lowest grade from among them.
In determining the Court or Courts to which
an appeal will ordinarily lie, we have to see which Court or Courts entertain
appeals from that class of tribunal in the ordinary way apart from special
notifications or laws that lift the matter out of the general class. Our
meaning will be clearer when we turn to the case in hand and examine the Punjab
Courts Act of 1918.
Apart from the Courts of Small Causes and
Courts established under other enactments, the Punjab Courts Act, 1918 makes
provision for three classes of Civil Courts, namely- (1) the Court of the
District Judge, (2) the Court of the Additional Judge, and (3) the Court of the
At the moment we are concerned with the
Section 22 enables the State Government to
fix the number of Subordinate Judges after consultation with the High Court.
The local limit of jurisdiction of each of
these Judges is the district in which he is appointed unless the High Court
defines a different limit (section 27). The pecuniary limits are set out in
"The jurisdiction to be exercised in
civil suits as regards the value by any person appointed to be a Subordinate
Judge shall be determined by the High Court either by including him in a class
or otherwise as it thinks fit".
These are what might be termed the ordinary
powers and jurisdiction of these Courts. But sections 29 and 30 authorise the
High Court to confer certain additional powers and jurisdiction on them. We
will deal with that later.
132 Next, we turn to the provisions for
appeal. They are governed by section 39. In the absence of any other enactment
for the time being in force, when the value of the suit does not exceed five
thousand rupees the appeal lies to the District Judge, and in every other suit,
to the High Court. But by sub-section (3) the High Court is empowered to direct
by notification "that appeals lying to the District Court from all or any
of the decrees or orders passed in an original suit by any Subordinate Judge
shall be preferred to such other 'Subordinate Judge as may be mentioned in the
notification" and when that is done "such other Subordinate Judge
shall be deemed to be a District Court for the purposes of all appeals so
The High Court availed itself of this
provision and provided that appeals lying to the District Courts from decrees
or orders passed by any Subordinate Judge in two classes of case which are
specified "shall be preferred to the Senior Subordinate Judge of the first
class exercising jurisdiction within such Civil District".
There are thus three forums of appeal from
the Court of the Subordinate Judge depending on the nature of the suit and its
value. The question is whether in each of these three classes of case the
appeal can be said to lie "ordinarily" to one or other of these
appellate tribunals. Applying the rule we have set out above, the appeal to the
Senior Subordinate Judge cannot be termed "ordinary" because the
special appellate jurisdiction conferred by the Notification is not the
ordinary jurisdiction of the Senior Subordinate Judge but an additional power
which can only be exercised in a certain limited class of case. It is not a
power common to all Subordinate Judges nor even to all Senior Subordinate
Judges. Therefore, it cannot be said that appeals from the Courts of the
various Subordinate Judges "ordinarily" lie to the Senior Subordinate
Judge. Consequently, that Court is not one of the appellate tribunals
contemplated 133 by section 195(3) of the Criminal Procedure Code and its
proviso. But appeals do "ordinarily" lie either to the District Court
or the High Court; and as the District Court is the lower of these two
tribunals that must be regarded as the appellate authority for the purposes of
section 476-B of the Criminal Procedure Code.
Now it is to be observed that this is a
purely objective analysis is and is not subjective to any particular suit.In
the present suit, the value of the suit was over Rs. 5,000, so the appeal would
have lain to the High Court, but we are not concerned with that because section
195(3) does not say that the appellate authority within the meaning of that section
shall be the Court to which the appeal in the particular case under
consideration would ordinarily lie but generally "the Court to which
appeals ordinarily lie from the appealable decrees or sentences of such former
It would, however, be wrong to say that the
nature of the proceedings in the case must be wholly ignored because sub-
clause (b) to the proviso to sub-section (3) states that "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". Therefore, to that limited extent the nature of the
proceedings must be taken into account, but once the genus of the proceedings
is determined, namely whether civil, criminal or revenue, the heirarchy of the
superior Courts for these purposes will be determined, first by the rules that
apply in their special cases and next by the rule in section 195(3) which we
have just expounded and explained.
M. S. Sheriff v. The State of Madras and
Others,(1) was quoted but the present point was neither considered nor decided
The next question is whether the Court of the
Senior Subordinate Judge is the same Court as Mr. Barlow's Court, namely the
Court of the Subordinate (1)  S. C. R. 1144,1147.
18 134 Judge of the first class. That depends
on whether there is only one Court of the Subordinate Judge in each district,
presided over by a number of Judges, or whether each Court is a separate Court
in itself. That turns on the provisions of the Punjab Courts Act.
We make it clear that our decision on this
point is confined to the Punjab Act. We understand that similar Acts in other
States are differently worded so that what we decide for the Punjab may not
bold good elsewhere. We say this because rulings were cited before us from
other parts of India which take differing views. We do not intend to refer to
them because it would not be right to examine the language of Acts that are not
directly before us.
Accordingly, we confine ourselves to the
Punjab Act (Act VI of 1918).
Section 18 of the Punjab Courts Act states
that there shall be the following classes of Courts, namely
(3) the Court of the Subordinate Judge".
Section 22 provides that "the State
Government may........ fix the number of Subordinate Judges to be
Section 26, which has already been quoted,
fixes the pecuniary limits of their jurisdiction. Then comes section 27
defining the local limits of their jurisdiction:
"(1) The local limits of the
jurisdiction of a Subordinate Judge shall be such as the High Court may define.
(2) When the High Court posts a Subordinate
Judge to a district, the local limits of the district shall, in the absence of
any direction to the contrary, be deemed to be the local limits of his
From there we go to the Notification. It is
High Court Notification No. 4 dated 3-1-1923. It makes four classes of
Subordinate Judges with effect from 5-1-1923 "in respect of the jurisdiction
to be exercised by them in original suits, namely:- Class I-Subordinate Judges
exercising jurisdiction without limit as to the value of the cases;
Class II-Subordinate Judges exercising
jurisdiction in cases of which the value does not exceed Rs. 5.000;
Class III-Subordinate Judges exercising
jurisdiction in cases of which the value does not exceed Rs. 2,000;
Class IV-Subordinate Judges exercising
jurisdiction in cases of which the value does not exceed Rs. 1,000.
When a Subordinate Judge is appointed to any
of the classes constituted by this Notification, he shall exercise the
jurisdiction here in before defined for the class to which he is appointed
within the local limits of the civil district to which he may be posted from
time to time".
This gives rise to three points of view.
According to one, there is only one Court of the Subordinate Judge for each
district and every other Subordinate Judge is an additional Judge to that
Court. This is based on the language of section 18, and the High Court
Notification is, under that view, interpreted as dividing the Judges of that
one Court into four categories but not as creating independent Courts. Section
26 is there read as empowering the High Court to include each Subordinate Judge
individually on appointment into a given class within the one Court and not to
turn him into a separate Court.
According to the second view, there are four
classes of Subordinate Judge's Courts in the Punjab because of the High Court
Notification. The argument here runs that section 18 must be read with section
26, and as the High Court is empowered to divide Subordinate Judges in a
district into classes it must mean that each class forms an independent Court,
for according to this point of view, it would be anomalous to have Judges of
the one Court invested with differing pecuniary jurisdictions because that is
always regarded as inherent to the Court. The position created by the Act, it
is said, is not the same as the one that arises when work is -administratively distributed
among Additional Judges of the same 136 Court because the jurisdiction and
powers of the Judges are unaffected by such distribution and there remains the
one Court with one inherent and territorial jurisdiction despite the
The third view is that each Subordinate Judge
is a separate and independent Court in himself and it is pointed out that
section 27 invests each Judge personally with a territorial jurisdiction and
not the Court, and so also section 26.
Under section 33 the power of control (apart
from the High Court) over all civil Courts within the local limits of a
District Judge's jurisdiction is with him, and section 34 empowers the District
Judge to distribute any civil business "cognizable by .... the Courts
under his control.... among such Courts in such manner as he thinks fit".
The Senior Subordinate Judge does not therefore appear to be vested with either
administrative or judicial control over any other Subordinate Judge except in
so far as he is a Court of appeal in certain specified classes of case.
In our opinion, the Senior Subordinate Judge
who made the complaint had no jurisdiction to make it, either as the original
Court which tried the suit, or as the appellate authority under section 476-B
of the Criminal Procedure Code. It is not enough that he also had first class
powers because be was not the same Court. That is not to say that a successor
could not have been appointed to Mr. Barlow so as to establish continuity in
the Court over which he presided. It is possible that one could have been
appointed and indeed it seems to have been assumed that Mr. Augustine was his
successor. But as Mr. Augustine did not take up this matter we need not decide
that point. What we think is clear is that Mr. Pitam Singh was not a successor,
especially as appeals lay to him from certain decisions of the Subordinate
Judges in his district. It would be unusual to provide an appeal from one Judge
of a Court to another single Judge of the same Court. It would be even more
anomalous to have an appeal from the decision of a judge lie to his successor
in office. Even 137 in the High Courts, where there are Letters Patent appeals,
the appeal is always heard by a Division Bench of at least two Judges; nor can
this be treated as a case where a Court with inherent jurisdiction decides the
matter as an original tribunal though, owing to territorial or other similar
classification not affecting inherent jurisdiction, the case should have gone
to some other tribunal of co-ordinate or lesser authority. Section 193(1) of
the Criminal Procedure Code imposes a definite bar which cannot be ignored or
waived any more than the prohibitions under sections 132 and 197 and, just as
the sanctions provided for in those sections cannot be given by any authority
save the ones specified, so here, only the Courts mentioned in section 195 (1)
(b) and (c) can remove the bar and make the complaint.
This also appears to accord with the Punjab
practice. The Rules and Orders of the Punjab High Court reproduce a Notification
of the High Court dated 16-5-1935 as amended on 23-2-1940, at page 3 of Chapter
20-B of Volume I, where it is said in paragraph 2- "It is further directed
the Court of such Senior Subordinate Judge of the first class shall be deemed
to be a District Court, etc." This appears to regard each Senior
Subordinate Judge as a Court in himself and not merely as the presiding officer
of the Court of the Subordinate Judge.
Section 39(3) of the Punjab Courts Act is
It states that- "the High Court may by
notification direct that appeals lying to the District Court from all or any of
the decrees or orders passed in an original suit by any Subordinate Judge shall
be preferred to such other Subordinate Judge as may be mentioned in the
notification, and the appeals shall thereupon be preferred accordingly, and the
Court of such other Subordinate Judge shall 'De deemed to be a District Court,
" Now this permits an appeal from one
Subordinate Judge to another and the words the "Court of such other Subordinate
Judge" indicate that the Subordinate Judge to whom the appeal is preferred
is a separate and distinct Court.
The position thus reduces itself to this. The
original Court made no complaint; section 476-A of the Criminal Procedure Code
was therefore attracted and the jurisdiction to make the complaint was
transferred to the Court to which Mr. Barlow's Court was subordinate within the
meaning of section 195. That Court, as we have seen, was the Court of the
Now, when the matter was reported to the
District Judge by Mr. K. K. Gujral, the District Judge dealt with it. He had
authority under section 476-A either to make the complaint himself or to reject
the application. He did neither.
Instead, he sent it to Mr. Pitam Singh who
had no jurisdiction. Of course, the District Judge could have sent it to the
original Court or to the successor Judge of that Court if there was one, but he
sent it to a Court without jurisdiction, so his order was ineffective and the
subsequent order of Mr. Pitam Singh was without jurisdiction. That still left
the District Court free to act under section 476-A when the matter came back to
it again. This time it came by way of appeal from Mr. Pitam Singh's order but
that made no difference because the substance of the matter was this: the
original Court had not taken any action, therefore it was incumbent on the
District Judge to make an appropriate order either under section 476- A or by
sending it for disposal to the only other Court that had jurisdiction, namely
the original Court. But the District Judge did not deal with it. The
application went instead to the Additional District Judge and what we now have
to see is whether the Additional District Judge had the requisite power and
authority. That depends on whether the Additional District Judge was a Judge of
the District Court or whether he formed a separate Court of his own like the
various Subordinate Judges; and that in turn depends on the language of the
Punjab Courts Act.
As we have already pointed out, section 18 of
that Act states that, in addition to Courts of Small Causes 139 and Courts
established under other enactments, "there shall be the following classes
of Civil Courts, namely:-- (1) The Court of the District Judge;
(2) The Court of the Additional Judge; and
(3) The Court of the Subordinate Judge".
The Court of the Additional Judge is
therefore constituted a distinct class of Court, and it is to be observed that
the Act speaks of the Court of the Additional Judge and not of the Additional
District Judge as is the case with certain other Acts in other parts of India.
This language is also to be compared with articles 214 and 216 of the
Constitution which constitute and define the constitution of the High Courts in
``214(1). There shall be a High Court for
"216 . Every High Court shall consist of
a Chief Justice and such other Judges as the President may from time to time
deem it necessary to appoint".
The Punjab Courts Act nowhere speaks of an
Additional District Judge or of an Additional Judge to the District Court;
also, the Additional Judge is not a Judge of co- ordinate judicial authority
with the District Judge.
Section 21 (I) states that- "When the
business pending before any District Judge requires the aid of an Additional
Judge or Judges for its speedy disposal, the State Government may appoint such
Additional Judges as may be necessary".
But these Judges cannot discharge all the
judicial functions of the District Judge. Their jurisdiction is a limited one
and is limited to the discharge of such functions as may be entrusted to them
by the District Judge. Section 21(2) states that "An Additional Judge so
appointed shall discharge any of the functions of a District Judge' which the
District Judge may assign to him".
It is true that sub-section (2) goes on to
say that "in the discharge of those functions he shall exercise the same
powers as the District Judge" but these powers are limited to the cases
with which 140 he is entitled to deal. Thus, if his functions are confined to
the hearing of appeals he cannot exercise original jurisdiction and vice versa.
But if he is invested with the functions of an appellate tribunal at the
District Court level, then he can exercise all the powers of the District Judge
in dealing with appeals which the District Judge is competent to entertain.
This is a very different thing from the administrative distribution of work
among the Judges of a sin-ale Court entitled to divide itself into sections and
sit as division Courts. When the Chief Justice of a High Court or the District
Judge of a District Court makes an administrative allotment of work among the
Judges of his Court, their jurisdiction and powers are not affected, and if
work allotted to one Judge goes to another by mistake his jurisdiction to
entertain the matter and deal with it is not affected. But that is not the
scheme of the Punjab Courts Act and the mere fact that Mr. J. N. Kapur called
himself the Additional District Judge and purported to act as such cannot
affect the matter of his jurisdiction. As the Punjab Courts Act does not
contemplate the appointment of Additional Judges to the District Court, none
can be appointed. The Court contemplated is the Court of the Additional Judge
which is in the nature of a special tribunal set up for a special purpose and
invested with the powers of a District Judge when dealing with the matters
specially entrusted to its jurisdiction. We hold therefore that the Court of
the Additional Judge is not- a division Court of the Court of the District
Judge but a separate and distinct Court of its own.
Now, as we have seen, when the original Court
does not make a complaint under section 476 of the Criminal Procedure Code or
reject the application, then the only other Court competent to exercise these
powers is the Court to which appeals from the original Court "ordinarily
lie". That Court, in the present case, was the Court of the District Judge
and not the Court of the Additional Judge Mr. J. N. Kapur. Therefore, Mr. J. N.
Kapur's order was also without jurisdiction.
141 Mr. Kapur's order went up to the High
Court in revision, and the next question we have to determine is whether the
High Court had jurisdiction to entertain the revision and the extent of its
powers. Keshardeo Chamria v. Radha Kissen Chamria and Other8(1) and many cases
from the High Courts were cited which show that there is much difference of
opinion about this but we are fortunately not called upon to decide that
question because this is not a case where a Court with jurisdiction has acted
under section 476 of the Criminal Procedure Code of its own motion or has acted
as a Court of appeal under section 476-B. As we have shown, the Court of the
Senior Subordinate Judge Mr. Pitam Singh had no jurisdiction to entertain this
matter either as a Court of appeal under section 476-B or of its own authority
under section 476-A. The Additional Judge Mr. J. N. Kapur, who has called
himself an Additional District Judge, also had no jurisdiction under either
section. But he seised himself of the case and has rejected the application for
the making of a complaint. He therefore assumed a jurisdiction which he did not
possess and that at once attracted the revisional jurisdiction of the High
Now it does not matter in this case whether
that jurisdiction lies under section 439 of the Criminal Procedure Code or
under section 115 of the Civil Procedure Code because under either of these two
sections the High Court is entitled to set aside an order of a Court
subordinate to it which has assumed a jurisdiction that it does not possess.
Therefore, in so far as the High Court set aside the order of Mr. J. N. Kapur
it was right. But where it went wrong was in upholding the complaint made by
the Senior Subordinate Judge. As we have shown, that Court had no jurisdiction
to make the complaint .
The next question is whether the High Court
could itself have made the complaint in this particular case because if it
could have done so then we would not have used our extraordinary powers of
appeal under article 136 to set right what would in those circum- (1) 
S.C.R. 136, 150 to 152.
19 142 stances have been a mere procedural
irregularity. But as our opinion is that the High Court had no jurisdiction to
act under section 476 in this case, we are bound to interfere. As we have
shown, section 195 contains an express prohibition against taking cognizance of
the kind of complaint we have here unless the bar is lifted either by the
original Court or the Court to which it is subordinate within the meaning of
section 195(3). Those are the only Courts invested with jurisdiction to lift
the ban and make the complaint. Had this been a case in which the High' Court
was the superior Court within the meaning of section 195(3) the matter would
have been different, but as the original Court was neither the original Court
nor the Court to which the original Court was subordinate, according to the
special definition in section 195(3), it had no jurisdiction to make the
complaint of its own authority.
Therefore, all that the High Court could, and
should, have done was to send the case to the District Judge for disposal
according to law. We will, therefore,, now do what the High Court should have
We were asked not to allow the proceedings to
spend any longer but we are not prepared to do that in this case. If the view
taken by Mr. Pitam Singh and the High Court is right, then a serious offence of
a kind that is unfortunately becoming increasingly common, and which is
difficult to bring home to an offender, has been committed against the
administration of justice, and if the District Court is satisfied, as were Mr.
Pitam Singh and the High Court, that a prima facie case has been made out and
that it is expedient in the interests of justice that a complaint should be
filed, then it is but right that the matter should be tried in the criminal
Courts. We will not say anything more lest it prejudice the appellant. The
District Judge will of course be free to exercise his own discretion. The
application for the making of a complaint will accordingly be remitted to the
District Judge who will now deal with it.