Jagannath Paul Vs Debi Rani Nandi

Mukul Gopal Mukherji, J.@mdashBy an order dated February 22, 1989, this matter was referred to the Special Bench by the Hon''ble the Chief Justice for finally settling two controversy as to whether an appeal made to the District Judge u/s 341 of the Code of Criminal Procedure might be transferred by him to an Asstt. District Judge for disposal and whether the Asstt. District Judge is competent to hear such an appeal.

2. Before we consider the question straightway, it would be relevant for us to consider the background of the case. Alleging, inter alia, that the opposite party had made deliberate false statement in her verified petition for amendment of the plaint, the Petitioners who are the Defendants in the suit for eviction moved an application before the learned Munsif who was in seisin of the case for lodging a complaint against the opposite party for having committed an offence u/s 193, Indian Penal Code, and for that purpose, to make an enquiry u/s 340 of the Code of Criminal Procedure. The learned Munsif rejected the application. The Petitioners, thereafter, took an appeal to the learned District Judge u/s 341, Code of Criminal Procedure. The learned District Judge, instead of hearing the appeal himself, transferred it to the learned Asstt. District Judge, Arambagh, who dismissed the same on contest. Thereafter, the Petitioners moved this Revisional application invoking the provisions of Article 227 of the Constitution of India as well as Section 482, Code of Criminal Procedure, impugning the judgment and order of the learned Asstt. District Judge. Both the parties agreed that an appeal u/s 341, Code of Criminal Procedure, lies before the learned District Judge. However, the controversy centers round the question as to whether the District Judge is duty-bound to hear such an appeal himself or he has power u/s 2(1) of the Bengal, Agra and Assam Civil Courts Act (hereinafter referred to for the purpose of brevity as the ''Act'') and u/s 21(l)(a) of the CPC to transfer the appeal to an Asstt. District Judge for disposal. The other ancillary question that obviously arises in this context is whether an Asstt. District Judge is also competent to hear an appeal u/s 341 of the Code of Criminal Procedure.

3. It was urged on behalf of the Petitioners that an appeal u/s 341. Code of Criminal Procedure, must have to be heard by the learned District Judge himself to whom such an appeal lies and he could not effect any transfer of such an appeal to an Asstt. District Judge or to an Addl. District Judge for disposal by taking recourse to either Section 22(1) of the Act or Section 24(1)(a), Code of Criminal Procedure. Apart from making a detailed analysis of Section 341 and Sub-section (4) of Section 195, of the Code of Criminal Procedure Mr. Balai Chandra Ray, the learned Advocate appearing for the Petitioners, placed two Division Bench judgments of this Court in Ramcharan Chandra v. Taripullah Sk. 16 C.W.N. 645 : ILR 39 Cal. 774 and Hari Mondal v. Keshab Ch. Mana 16 C.N.N. 903 : ILR 40 Cal. 37 In Ramcharan''s case, a Munsif dismissed a suit on bond and the decree was upheld by the appellate Court and application for sanction to prosecute against the Plaintiff for offence under Sections 463 and 471 of the Indian Penal Code was refused by the Munsif. From this order an appeal was preferred evidently to the District Judge, but this appeal was heard ultimately by the Subordinate Judge who reversed the order of the Munsif and granted sanction. The Plaintiff obtained a Rule for setting aside the order of the learned Subordinate Judge. It was contended, inter alia, on behalf of the Petitioners that the Subordinate Judge had no jurisdiction to make an order that he purportedly made. A Division Bench of this Court comprising of the Hon''ble D. Chatterjee J. and Hon''ble N.R. Chatterji J. explaining the law enunciated that Section 195. Clause (6) of the Code of Criminal Procedure provided, inter alia, that

any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate.

Clause (7) provided, inter alia, that,

every Court shall be deemed subordinate only to the Court to which appeals from the former Court ordinarily lie.

Chapter III of the Civil Courts Act contains, Section 21 of which Clause (2) provided, inter alia, that,

save as aforesaid, an appeal from a decree or order of a Munsif shall lie to the District Judge.

However, no appeal lay to the Subordinate Judge and he was, therefore, not the authority which could grant or revoke a sanction refused or granted by the Munsif. It was indeed true that u/s 24, Clause (a) of the CPC the District Judge could transfer any suit, appeal or proceeding pending before him to any Subordinate Court competent to try it; but the Subordinate Judge was not competent to try this appeal as he was not the authority to which the appeal lay. Accordingly, the order of the Subordinate Judge was found to be incompetent. The Hon''ble N.R. Chatterjea J., who agreed with Hon''ble D. Chatterjee J., further elucidated the proposition of law to the effect that there was no suggestion in the case that there was any special order as made by the High Court under Sub-section (4) of Section 21 of the Bengal, Agra and Assam Civil Courts Act that the appeal Court had preferred it to the particular Subordinate Judge who passed the order in appeal in the present case and u/s 22(1) a District Judge no doubt may transfer to any Subordinate Judge under his administrative control any appeal pending before him from the decrees or orders of the Munsif. When an appeal transferred u/s 22(1) is withdraw by the District Judge, he may either dispose of it himself or transfer it to a Court under his administrative control competent to dispose of it. The question of competency to dispose of an appeal does not arise, when the appeal was transferred in the first instance to a Subordinate Judge u/s 21(1), and it seemed therefore, that a Subordinate Judge was competent to dispose of an appeal pending before the District Judge and transferred by him to the former. However, u/s 195(6) of the Code of Criminal Procedure, power of revoking or granting any sanction given or refused, was given to the authority to which the authority giving or refusing it was subordinate and Sub-section (7) provided that from the purpose of this section every Court should be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily did lie. There was no doubt that the District Judge was the only Court to which appeals from an order of a Munsif ordinarily did lie. For the purpose of Section 195, Code of Criminal Procedure, therefore, a Munsif was not subordinate to a Subordinate Judge. A Subordinate Judge could dispose of any appeal transferred to him by the District Judge u/s 21(1) of the Civil Courts Act, but the power of revoking or granting sanction was given only to the Court to which an appeal lies. Thus the said power could not be exercised by a Subordinate Judge to whom an appeal did not lie from the order of the Munsif, but who can only dispose of an appeal transferred to him by the District Judge. In Hari Mondal''s case (Supra) an application for compromise was filed on behalf of the decree-holder in execution of a decree obtained by him against the judgment-debtor in a mortgage suit and the execution case was ordered by the Munsif to be compromised on full satisfaction. Subsequently, the decree-holder filed a petition under Sections 224 and 623, Code of Civil Procedure, 1882, to set aside the order of dismissal on the ground that the application for compromise was not filed by him or on his behalf and he alleged that the said application was forged. On the case having been heard by the learned Munsif, it was found that the application for compromise was really a forgery and, accordingly, an order was passed by the learned Munsif setting aside the order of dismissal of the execution case. Thereafter, the decree-holder applied for and obtained a sanction from the learned Munsif to prosecute Hari Mondal, one of the judgment-debtors, under Sections 192, 196, 463 and 471, Indian Penal Code. Against the order of the Munsif, two appeals were filed by Hari Mondal and some other judgment-debtors to the learned District Judge who transferred the said appeal to the file of the Subordinate Judge for disposal.

4. The appeals were dismissed and, thereafter, Hari Mondal and others obtained a rule against the order granting sanction to prosecute them, and a Division Bench of this Court held that the District Judge could not transfer those appeals to the Subordinate Judge for disposal. The Division Bench presided over by Sir Asutosh Mookerjee held that Sub-section (6) provided that any sanction given or refused in the section may be revoked or granted by any authority to which the authority giving or refusing it, is subordinate. Sub-section (7) provided that for the propose of this section every Court shall be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie. u/s 21, Sub-section (2) of the Bengal Civil Courts Act, 1887 (Ben. 12 of 1887), an appeal from the order of the Munsif lies to the District Judge. Consequently, the District Judge is the authority competent in Sub-section (6) of Section 195, Code of Criminal Procedure, to revoke or grant a sanction which has been given or refused by the Munsif. According to the opinion of their Lordships of the Division Bench, the District Judge was not competent u/s 22(1) of the Bengal Civil Courts Act, 1887, to transfer the appeal presented before him for disposal by a Subordinate Judge. That section provided that a District Judge may transfer to any Subordinate Judge under his administrative control in any, appeal pending before him from the decree or order of a Munsif. An application under Sub-section (6) of Section 195, Code of Criminal Procedure, was not an appeal within the meaning of Sub-section (1) of Section 22 of the Bengal Civil Courts Act, 1887. It not having been suggested to their Lordships that any order has been made by the High Court in Sub-section (4) of Section 21 of Bengal Civil Courts Act so as to constitute the Subordinate Judge''s Court as the appellate authority over the Munsif, the order as made by the Subordinate Judge, as passed in this case, was found to be without jurisdiction.

5. Mr. Sett, the learned Advocate for the opposite party, has however cited two later Division Bench judgments before us which seemed to have taken a contrary view on the identical point. In Lal Md. and Ors. v. D.I.G., C.I.D. Bengal 34 C.W.N. 80 : 31 Cr.L.J. 921 the learned Munsif rejected the petition of the opposite party for sanction to prosecute the Petitioner u/s 476, Code of Criminal Procedure (Old) on charges under Sections 120B, 109, 209 and 471, Indian Penal Code. Against the order of the learned Munsif an appeal was preferred by the opposite party to the learned District Judge and the learned District Judge ultimately transferred it to the Addl. District Judge to deal with it. The learned Addl. District Judge allowed the appeal by Ms judgment dated January 12, 1929, and this order was challenged by the Petitioner before the High Court in revision on the ground that the Addl. District Judge had no authority to make the complaint u/s 176B of the Code. The Division Bench overruled the contention holding that though appeal lay to the learned District Judge u/s 8 of the the Civil Courts Act, 1887, an Addl. District Judge was empowered to discharge all the functions of the District Judge which may be assigned to him. It was further held that Section 24(1)(a) of the CPC gave unfettered jurisdiction to the learned District Judge to transfer an appeal or any proceeding pending before him to any competent Court Sub-ordinate to it, In that view of the matter, Rule was discharged by the Division Bench. In Chandra Kumar Home and Others Vs. Gopi Nath Kar, the Munsif refused sanction to launch prosecution. Thereupon an appeal was preferred to the learned District Judge against the order of the Munsif and the District Judge transferred the appeal to the Subordinate Judge for disposal. The learned Subordinate Judge reversed the order of the Munsif and made a complaint to the learned Sub-Divisional Magistrate against the Petitioner u/s 192, Indian Penal Code. The Petitioner then moved this Court in revision and obtained a Rule. It was contended on behalf of the Petitioner that the Subordinate Judge had no jurisdiction to hear the appeal inasmuch as under the provisions of Section 476 , of the Code of Criminal Procedure (Old), an appeal was to be made to the Court to which the Court which refused to make the complaint is subordinate within the meaning of Section 195(3), Code of Criminal Procedure. The Division Bench, however, overruled the point by holding that u/s 22 of the Act, the District Judge may transfer to any Subordinate Judge under his administrative control, any appeal from the decrees or orders of Munsif pending before him and the Subordinate Judge was competent to hear such appeals. The Division Bench also overruled the contention that the order refusing sanction for prosecution is not a final order as contemplated u/s 22 of the Act. A Full Bench of Patna High Court in Mt. Rampati Kuer and Others Vs. Jadunandan Thakur and Others, had also to deal with the question of an appeal being filed before the District Judge which stood validly transferred to the learned Addl. District Judge. It held that it was by virtue of Section 8(2) of the Bengal, Agra and Assam Civil Courts Act that the District Judge could transfer suits and. appeals to the Addl. District Judge; but Section 476B of the Code of Criminal Procedure expressly provided that the appeal against the order of the original Civil Court u/s 476, Code of Criminal Procedure, shall lie to the Court to which that Court is subordinate as described in Section 195(3) of the Code of Criminal Procedure. The Court of the District Judge alone is superior Court over the Munsif and Subordinate Judge within his jurisdiction, but there was no provision contained in Section 476B, Code of Criminal Procedure, for transfer by that Court to another Court, since it expressly said that the right of appeal is conferred only on that superior Court to which the original Civil Court subordinate. Therefore, it could be said that with some justification that the superior Court has no jurisdiction to transfer an appeal u/s 176B to an Addl. District Judge. However; u/s 21(3) of the Bengal, Agra and Assam Civil Courts Act, the Addl. District Judge can be assigned function of receiving appeals and, on such assignment, appeals may be preferred directly to the Addl. District Judge. But so long as the function receiving appeals has not been assigned to an Addl. District Judge, he could not be said to be a ''superior Court'' to which appeal ordinarily lies from the decrees and orders of the lower Civil Courts. Hence, unless the function of receiving the appeals are assigned to the Addl. District Judge u/s 21(3) of the Bengal, Agra and Assam Civil Courts Act, appeals will not directly lie to him and he will not be the appellate Court for the purpose of Section 476B , Code of Criminal Procedure, and the District Judge cannot transfer appeals to him for disposal. Patna High Court in this context approved an earlier decision of its own in Inderdeo Ojha Vs. Emperor, . The Supreme Court had also to deal with almost an identical question in Kuldip Singh Vs. The State of Punjab and Another, . The Supreme Court in this case while analysing the provisions of Sections 476A and 195(3) though in the peculiar facts and circumstances of the said case there a senior Subordinate Judge apparently exercised certain powers over another Subordinate Judge in making a complaint while exercising either powers as an original Court or as an appellate authority u/s 476B, Code of Criminal Procedure. The Supreme Court had to deal elaborately with the question as to what was meant as a Court subordinate within the meaning of Section 195(3), Code of Criminal Procedure. The offences were originally committed in the Court of a Subordinate Judge of First Class jurisdiction. An application was filed in the Court of its successor, but before he could deal with the same he was transferred and, thereafter, no Subordinate Judge of First class jurisdiction was appointed in its place. Ultimately, a Subordinate Judge of Fourth Class power was sent in that area. He ultimately declined and made a report to the learned District Judge that he had no jurisdiction to deal with the matter to a senior Subordinate Judge and that officer made the complaint. The, aggrieved party filed an appeal against the said order to the Addl. District Judge who held that the senior Subordinate Judge had no jurisdiction to make the complaint because he was not the successor of the Subordinate Judge of First Class jurisdiction before whom the offence was committed, matter went to the High Court in Revision and the High Court held that senior Subordinate Judge had jurisdiction and that the materials disclosed a prima facie case and, accordingly, he set aside the learned Addl. District Judge''s order and restored the order of the senior Subordinate Judge making the complaint. The matter having come to the Supreme Court, the Supreme Court found that the senior Subordinate Judge did not appear to be vested either with administrative or judicial control over any other Subordinate Court except in so far as it was a Court of appeal in respect of certain speficific classes of cases. Patna High Court notification had a peculiarity of its own and it could not be taken as relevant in the context to have a thorough discussion on the respective jurisdiction of the different Subordinate Judges vested with different degrees of powers. Section 476, Code of Criminal Procedure, authorised appropriate Court, after recording a finding that it is expedient in the interest of justice, to make a complaint in writing and forward it to the Magistrate of First Class having jurisdiction. That was so done in the case of Kuldip Singh v. State of Punjab (Supra). The other question that the Supreme Court had to decide was to whether the Court of senior Subordinate Judge was the Court to which original court of the Subordinate Judge was subordinate within the meaning of Section 195(3), Code of Criminal Procedure. The Supreme Court held in this context 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 is subordinate, for what might be termed, most general puroposes, but only the Court to which it is subordinate within the meaning of Section 195(3). The Supreme Court was aware as to the conflicting decisions amongst different High Courts regarding the proviso mostly centering round the word ''ordinarily''. One view was that ordinarily means, ''in the majority of cases''. The Supreme Court rightly rejected that interpretation since that would be rendering otiose the provision of Section 195(3), Code of Criminal Procedure. 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 chose between inferior and superior Courts cannot arise. That would make 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. These cases may arise in which the majority of appeals should go to the higher of the two given Tribunals and in any case the interpretation has the disadvantage that the Court may be compelled to call for and go into a mass statistic to ascertain which of the two Courts is to entertain majority of appeals over a given period of time as well as to determine what is the appropriate period of time. The Supreme Court also considered the other view in paras. 14 and 15 of the judgment. The word could mean and imply that the higher Court is the one to which there is an unrestricted right of appeal and so cannot apply when any restriction intervenes. As such, when the right of appeal is limited to a particular class of cases or is hedged in by contention conferred as to which was the view taken in M.S. Sheriff Vs. The State of Madras and Others, . The Supreme Court posed the question in this manner that the first thing they are to look for is that whether any decrees, orders or sentence of the original Court are appealable at all. If they are not and the Court is a civil Court, then u/s 195(3), Code of Criminal Procedure, the appeal against an order making or refusing to make a complaint will be to the principal Court of Ordinary Original Civil Jurisdiction. If, however, appeals from decrees or orders lie to different Courts, then we have to find out as to which of them they ordinarily lie to and select the one of the lowest Courts amomg them. In determining the Court or Courts to which appeal will ordinarily lie, we have to see which Court or Courts entertain appeals from the class of cases or to which Tribunal in the ordinary way, apart from specific notification or laws that leave the matter out of the general clause. Applying the rule in this context, the Supreme Court held that the appeal to the senior Subordinate Judge cannot be termed ''oridinary'' because the special Appellate Jurisdiction conferred by a Punjab High Court Notification is not ordinary jurisdiction of the senior Subordiante Judge, but an additional power which can only be exercised in certain limited class of cases. It was not a power common to all Subordinate Judges or even to all senior Subordinate Judges. Consequently, that Court is not one of the appellate Tribunals, contemplated by Section 195(3), Code of Criminal Procedure, and its proviso, but the appeals do ordinarily lie either to the District Court or the High Court and as the District Court was not the lower of these two Tribunals, that must be regarded as appellate authority for the purpose of Section 476B, Code of Criminal Procedure. Accordingly, the Supreme Court held that when the original Court did not make a complaint under, Section 476, Code of Criminal Procedure, or reject the application, then the only other Court competent to exercise this powers is the Court to which appeals from the original Court ''oridinarily lie''. That Court in the said decision was found to be the Court of the learned District Judge and not the Court of the Addl. District Judge. Therefore, the order of the learned Addl. District Judge was without jurisdiction. Therefore, the assumption of jurisdiction of the Addl. District Judge attracted interference by the High Court. As regards the other question that was argued in that case as to whether the High Court itself had the power, while setting aside the order of the Addl. Sessions Judge to make a complaint, the Supreme Court found that the High Court was not superior Court within the meaning of Section 195(3), Code of Criminal Procedure, and not even an original Court and it had no jurisdiction also to make a complaint of its own in the facts and circumstances of the said case. Therefore, all that the High Court could and should have done was to send the case to the District Judge''s Court for disposal according to law and, accordingly, the matter was remitted back to the Court of the District Judge which was given liberty to exercise its own discretion in the matter so as to deal with the complaint. We are conscious about the contention raised by Mr. Sett that Section 195(6) Code of Criminal Procedure (Old), as it existed prior to 1923, was obliterated from the Statute by way of Amendment in 1923. Section 195(7) of old code was also incorporated with certain slight variation ins. 341 of the present Code, Section 195(6) of the Old Code, as it existed prior to 1923, was brought in as Section 476B by virtue of 1923 Amendment Act with certain modification and even Section 195(7) came in as Section 476B with certain variation. Mr. Sett, argued that power to grant sanction was altogether different from the power to transfer an appeal. At the time when the two decisions of the Calcutta High Court in Ram Charan Chandra''s case (Supra) and Hari Mondal''s case (Supra) were delivered, there was no provision for appeal in the Statute at the relevant time. Section 195(6) provides that any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate. Sub-section (7) reiterates that every Court shall be deemed subordinate only to the" Court to which appeals from the former Court ordinarily lie. In 1973 Code of Criminal Procedure, Sub-section (5) was also deleted. Section 341 of the present Code does not lay down any procedure for hearing an appeal, but only confers a right of appeal. Section 476B also similarly confers a right of appeal. The venue of preferring an appeal was prescribed by making a distinction that in respect of civil matters, an appeal will lie to the District Court and in respect of criminal matters to the Sessions Judge and the intention of the Legislature is not that cither the CPC or the Code of Criminal Procedure will apply as the case may be. As regards procedure of hearing appeals, according to Mr. Sett. ratio of the two pre-1923 Amendment decisions is that no power, of transfer was ever held by the District Judge; but then, power to grant or refuse sanction was only on the District Judge by virtue of Section 195(7), where the emphasis was on the word ''only'', which is absent now in the present Section 195(4), Code of Criminal Procedure, does not create any special Jurisdiction as regards procedure of hearing appeals, but only creates a forum of appeal. If Legislature in its wisdom ought to have thought of curtailment of such special powers as contemplated in Bengal, Agra and Assam Civil Courts Act, there should have been a subsequent legislative enactment, but since that was not so done, it would prove that the Legislature had intention otherwise.

6. Mr. Ajit Kumar Roy, appearing as aimcus curiae, submitted that the nature of the ''lis'' is to be determined first and in this connection he referred to the decision of the Supreme Court in Kuldip Singh''s case (Supra) in para. 21 of the said judgment. Mr. Roy further submitted that to that extent decision of the Patna Full Bench in Msst. Rampati Quer v. Jadunandan (Supra) where their Lordships relied on Md. Sherif v. State of Madras (Supra) was rendered per incuriam inasmuch as in Kuldip Singh''s case their Lordships of the Supreme Court were clearly of the view that in the said decision in Md. sherif v. State of Madras the point was neither considered nor decided. Once the nature of the lis stands determined, it would transpire that the District Judge is to entertain the appeal and the appeal also ordinarily lies to the District Judge. The expression ''District Judge'' has been dealt with in the Bengal, Agra and Assam Civil Courts Act, 1887, and provisions thereof make it amply clear that if and when the District Judge hears the appeal as an appellate authority, he has all the powers conferred on him by the said Act. He placed Section 22 of the Bengal, Agra and Assam Civil Courts Act, 1887, to emphasise the said point. His further submission was that an appeal is a creature of statute and, the provisions for hearing the appeal must also be governed by the statute itself conferring the said power.

7. Mr. Roy further submitted that where two decisions of equal strength arc before a Court, the Court can legitimately follow the decision which is more logical and in that context he referred to Bholanath Karmakar and Ors. v. Madan Mohan Kar-makar and Ors. 1988 (1) C.L.T. 11 C. 1(S.B.) which is a Special Bench decision of this Court.

8. Mr. Priyanath Ghosh, learned Advocate for the State, submitted before us that regard being had to the expedience and workability, we have to make such an interpretation which must conform to a reasonable interpretation. The power of learned District Judge to transfer the case to the Asstt. District Judge or to the Addl. District Judge is to be taken as an implied one. There not having been any fetter imposed by the statute prohibiting such a transfer, we should make an interpretation accordingly. Mr. Ghosh also relied upon the decision in Kuldip Singh v. State of Punjab (Supra) with particular reference to paras. 36, 37, 38 and 39 of the judgment and submitted before us the distinguishing feature of the Punjab Courts Act in comparison with the Bengal. Agra and Assam Civil Courts Act, 1887. Mr. Ghosh further submitted that there was no controversy at all raised by any of the parties that the forum of preferring an appeal should be any Court otherwise than the District Judge''s Court, but then the District Judge is always, free to make an administrative distribution of work u/s 24(a) of CPC so that an appeal from an order of the Court of a Munsif could be sent to the Asstt. District Judge for disposal in accordance with law, as was done in the facts and circumstances of the present case, and even the District Judge was free to transfer the case to an Addl. District Judge, since both the Addl. District and the Asstt. Districts Judge were deemed to be subordinate to the District Judge.

9. Mr. Balai Ch. Ray, learned Advocate appearing on behalf of the Petitioner, however, submitted that the ''superior Court'' and the subordinate Court are expressions used in juxtaposition to each other. Mr. Ray submitted that u/s 195(4) of the Code of Criminal Procedure, power was conferred on such an appallate Court as an authority to which the original Court was subordinate. Section 195(4)(a) of the present Code almost equates the provisions of Section 195(7) of the Old Code. Section 341 read with Section 195(4) of the present Code provides for the same forum so far as was provided by Section 197(6) and (7) of the Old Code prior to 1923. Mr. Ray contended further that words "the Court to which such Court shall be deemed to be subordinate" is also written in the present Code in Section 195(4)(a). Mr. Ray took us through Section 195 of the post-1923 Code and also placed before us old Section 195(6) and (7) for our ready reference:

Section 195(6). Any sanction given or refused under this section may be revoked or granted by amy authority to which the authority giving or refusing it is subordinate, and no sanction shall remain in force for more than six months from the date on which it was given, provided that the High Court may, for good cause shown, extend the time.

(7) For the purpose of this section every Court shall be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie, that is to say,

(a) where such 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;

(b) where such appeals lie to a Civil and also to Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case in connection with which the offence is alleged to have been committed;

(c) where no appeal lies, such Court shall be deemed to be subordiante to the principal Court of Original Jurisdiction within the local limits of whose jurisdiction such first mentioned Court is situate.

10. It must, however, be remembered that under the Old Code prior to 1923 there was no provision for appeal and that is the precise reason why Section 195(7) applied. However, u/s 476A and B of the Code of 1898 as it stood after 1923 amendment, the provisions of old Section 195(6) and (7) were retained in their essence though such Sub-sections were in fact deleted. Mr. Ray contended that the entire idea behind the legislative amendment was to give a substantive right of appeal as was provided in post-1923 Code in distinction to the power of ''Superior Court'' to grant or revoke sanction. Under the old Section 476 of pre-1923 Code there was a procedure delineated about holding of a preliminary enquiry and to confer on the Magistrate such powers to proceed in accordance with law, even to transfer the case if so authorised u/s 192 to some other competent Magistrate. The present Section 340 somewhat represents Section 476(2) of the Old Code and Section 476 of pre-1923 Code. According to Mr. Ray there was indeed difference of language used in the different Codes, but the ''Superior Court'' remained all the same. Mr. Ray citing the decision reported in Surendra Nath Maiti v. Sushil Kumar Chakraborty 35 C.W.N. 775 contended further that Section 476 of post-1923 Code of Criminal Procedure did not seem to be exhaustive and are supplementary to Chapter XXXI of 1898 - Code. Mr. Ray further drew our attention to Section 3 of the CPC about hiearchy of Civil Courts. With reference to the decision in Lal Mohd''s case (3) before us, Mr. Ray contended that the said reported decision suffers from two errors. It could not have differend from another Division Bench in Ram Charan Chandra''s case (Supra) to hold that an appeal did lie from such an order and at any rate it could not delineate that it thought that it was expedient in the interests of justice that a large number of Courts should not be deprived from hearing such appeals. Mr. Ray then directed our attention to the fact that if the appeal has to be disposed of by a ''Superior Court'' the subordinate Judge or an Asstt. District Judge is not a superior Court over the Munsif and for subordination the. real test is to be applied in conformity with the provision of Section 341. In Pochai Matteh v. Emperor ILR 40 Cal. 239. District Judge was found not competent to transfer such a case to a Subordinate Judge because Section 195 did not confer a right of appeal to him under pre-1923 Code. Mr. Ray, further contended that Section 476(A) and (B) of post-1923 Code have not specifically deleted the spirit behind the provisions of pre-1923 Code especially Section 195(6) and (7) and the Superior Court was only the District Judge''s Court and not the Subordiante Judge''s Court. Mr. Ray, however, uiltimately gave up his initial argument that the learned District Judge was a persona designata. Mr. Ray further contended that in view of the pronouncement in Rampati Quer v. Jadunandan (Supra), there was no scope of further agitation of the question as to whether the District Judge is to transfer an appeal to the Subordinate Judge or to the Addl. District Judge. Further, we find that in the decision in Kuldip Singh''s cuse (Supra) (paras. 10 and 11), the question is ho more res integra. The work ''subordination'' was given a special meaning. Only the ''Courts'' mentioned in Section 195(l)(b) and (c) could remove the bar and make the complaint. Mr. Ray laying stress of paras. 7 and 12 of the reported judgment contended that the District Judge is alone the Superior Court.

11. We find that the language used in Section 476B of 1898 Code as it stood after 1923 amendment and in Section 341 of the present Code remain more or less the same. The subordination of Courts is to be adjudged by the yardstick given by Sub-section (4) to Section 195. To hear appeal is the determinant of superiority of a Court. In determining the Court to which an appeal will lie, one has to see which Courts entertain appeals from that of the Tribunal in the ordinary way apart from special notifications or laws that left the matter out of the general class. See Kuldip Singh v. Stale of Punjab (Supra). The words of the statute both in 1898 Code and 1973 Code remain more or less indentical. As was pointed out in M.S. Sherif v. State of Madras (Supra). The word ''subordinate'' 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 given in the statute, a fiction that has been imposed by the use of expression ''deemed'',

12. There is no controversy at all on the question that an appeal lies to the District Judge''s Court on the learned Munsif refusing to make a complaint under Sub-section (1) or Sub-section (2) of Section 340 because the Munsif Court is subordinate within the meaning of Sub-section (4) of Section 195 to the District Judge''s Court but then as is really meant and construed in Section 341. it is the ''superior Court'' only which may thereupon, after notice to the parties concerned, direct the making of a complaint which the Munsif Court might have made u/s 340 and, if it makes such a complaint, the provision of that section shall apply accordingly. The same is the case where the learned Munsif made a complaint and the aggrieved party is to prefer an appeal against the said order and it is again the superior Court, i.e. the District Judge''s Court, which could direct the withdrawal of the complaint. We have taken into consideration the decision of the Patna High Court in In dradeo Ojha v. Emperor (Supra) and also the Division Bench of the Calcutta High Court in Ram Chandra v. Taripulla (Supra) for the proposition that the Munsif is not subordinate to a subordinate Judge and that the Court of the District Judge was the only Court to which an appeal could properly lie from an order of the Munsif refusing to grant sanction to prosecute a party to a litigation in that Court. This decision was followed by a single Judge of the Patna, High Court in Dulari Koeri Vs. Fauzdar Khan and Another, in which case it was held that the Court of the District Judge is the only Court to which the Court of Munsif is subordinate within the meaning of Section 195(3) of 1898 Code so that the appeal u/s 476B be heard only by the District Judge himself and that consequently the District Judge had no power to transfer an appeal of that nature to the subordinate Judge for hearing. What was held in Indradeo Ojha v. Emperor (Supra) that the words of Section 195 Code of Criminal Procedure have got to be strictly construed which was reiterated by another Patna decision in Thakur Prasad and Another Vs. Emperor, , In Indradeo Ojha v. Emperor it was further held that the Addl. District Judge was not competent to hear the appeal from the orders of the subordinate Judge refusing to file a complaint. Giving a considered apperciation of the two Supreme Court decisions in M.S. Sherif v. State of Madras (Supra) and Kuldip Singh v. State of Punjab (Supra) which have both been considered in the Patna Full Bench decision in Rampati Quer v. Judunandan Thakur (Supra) we are of the considered view that the appeal filed before the District Judge could not be transferred to the Subordinate Judge or the Asstt. District Judge since the superior Court had no jurisdiction to transfer an appeal u/s 476B of 1898 Code and for the matter of that Section 341 of the present Code, to a Subordinate Judge or an Asstt. District Judge. We are conscious of the position that u/s 21(3) of the Bengal, Agra and Assam Civil Courts Act, the Addl. District Judge could be assigned the functions of the receiving appeals and on such assignment the appeals may be preferred directly to him, but so long as the function on receiving appeals has not been assigned to the Addl. District Judge, as per the Patna Full Bench view, he could not be said to be superior Court to which appeals ordinarily lie from the decrees and the orders of the lower Civil Courts. However, we need not dilate on the provisions of Section 8 of the Civil Courts Act for a final pronouncement as to the powers of the District Judge to transfer such appeal to the Addl. District Judge, but then we are unanimous on the point that in so far as the Munsif is concerned, the Subordinate Judge or the Asstt. District Judge is not the ''superior Court'' within the meaning of Section 341 of the present Code and an appeal u/s 341 could not be transferred for the purpose of hearing and for making of a complaint or for granting of the sanction or even for withdrawal of the complaint, as the case may be, to subordinate Judge or the Asstt. District Judge. We are, further, of the opinion that the dissention amongst the different judgments of our own Court can thus be reconciled to this effect by disapproving the view taken by our two Division Bench judgments in Chandra Kumar v. Gopinath Kar (Supra) and Lal Mohd v. D.I.G, C.I.D. (Supra) by observing that in the present context of the language in the 1973 Code, they are no more good law.

13. Accordingly, we set aside the judgment as passed by the learned subordinate Judge i.e. the Asstt. District Judge, and we direct the District Judge to hear out the appeal on merits as expeditiously as possible.

Amal Kumar Chatterjee, J.

14. I agree.

Manabendra Nath Roy, J.

15. I agree.