Full Judgment Text
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PETITIONER:
M. S. SHERIFF
Vs.
RESPONDENT:
THE STATE OF MADRAS AND OTHERS.
DATE OF JUDGMENT:
18/03/1954
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
MAHAJAN, MEHAR CHAND (CJ)
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
HASAN, GHULAM
CITATION:
1954 AIR 397 1954 SCR 1229
CITATOR INFO :
RF 1956 SC 391 (22)
D 1961 SC 181 (5)
ACT:
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.
HEADNOTE:
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 perjury.
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.
JUDGMENT:
CRMINAL APPELLATE JURISDICTION: Case No. 281 of 1951.
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,
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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.
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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 an enquiry.
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
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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-Inspeetors 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
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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.
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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 lie
"ordinarily".
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 ordinarily lie.
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
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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
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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
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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 order.
The petition for special leave is dismissed.
Appeal dismissed.
Petition for special leave dismissed,
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