Narain Das Vs. The State of Uttar
Pradesh  INSC 151 (14 September 1960)
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.
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, 
S.C.R. 1144, distinguished.
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
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 678 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
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 679 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)  S.C.R. 1144.
87 680 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.