Rajiv Shakdher, J.:— This appeal has been referred to a Larger Bench in view of the judgment rendered by a Division bench of this court in the case of Ramesh Jaiswal… v. Semjeet Singh Brar & Ors.… 2012 (131) DRJ 479; wherein the view taken is that, an appeal under clause 10 of the Letters Patent is not available to an aggrieved party to assail an order passed on an application filed under Section 340 of the Code of Criminal Procedure, 19731 (hereinafter referred to as the New Code) as it is an order passed in exercise of criminal jurisdiction. There can be no doubt that if it is so then, on a plain reading of clause 10 read with clause 18 of the Letters Patent no appeal shall lie to the Division Bench. The question therefore is: does a court while taking a decision on application under Section 340 of the New Code, exercise criminal jurisdiction.

2. It is pertinent to note that, prior to the constitution of a Larger Bench, the Division Bench was called upon to examine the maintainability of the appeal. The Division Bench at the relevant point of time comprised of Sanjay Kishan Kaul, J and myself.

2.1 The instant appeal though is preferred under Section 10 of the Delhi High Court Act, 19662 (in short the 1966 Act) against an order dated 26.05.2011, passed by a Single Judge of this court. The Single Judge vide order dated 26.05.2011, dismissed the appellant's application under Section 340 of the New Code. This application was filed by the appellant in CS (OS) 1299/1997.

2.2 The said suit, in substance, was a petition under Section 20 of the Arbitration Act, 1940 (in short 1940 Act), seeking reference of disputes to arbitration. The petition, under section 20 of the 1940 act, was preferred by respondent no. 1, i.e, MS Shoes East Ltd. In the petition, the Delhi Stock Exchange Association Ltd. was arrayed as respondent no. 1 while the appellant herein, was impleaded as respondent no. 120. The petition was preferred against, 233 respondents. We will be shortly adverting to the reasons which propelled respondent no. 1 to array such a large number of respondents, to the said proceedings.

2.3 It is not in dispute that the issues raised in the petition under section 20 of the 1940 act, qua all respondents, were referred for arbitration to a retired judge of this court. Suffice it to say, in so far as the appellant was concerned it arrived at a settlement vide an agreement dated 18.11.2009, with respondent no. 1. Consequently, respondent no. 1 withdrew its claims against the appellant. In terms of the settlement, appellant paid a sum of Rs. 9.50 lacs to respondent no. 1 in full and final settlement of all disputes and/or claims. It is not in dispute that respondent no. 1 had received the said sum of money in terms of the aforementioned agreement and that consequent thereto respondent no. 1 withdrew its claim against the appellant.

3. As to why these disputes arose in the first place and came to be referred to an arbitrator for adjudication; is briefly set out hereinafter, in order to place in perspective, the reason for initiation of the proceedings under Section 340 of the New Code by the appellant.

3.1 Respondent no. 1, which was inter alia in the business of manufacturing and export of footwear, leather shoes, footwear components etc., took a decision to raise capital via a composite public-cum-private issue, aggregating to a sum of Rs. 6.99 crores. To achieve this end, respondent no. 1 decided to float a public issue of 1,75,84,800/- zero unsecured fully convertible debentures of the face value of Rs. 199 each for cash at par which aggregated to a sum of Rs. 349,93,75,200/-. Apparently, this public issue was floated by respondent no. 1 to inter alia finance the construction of a five-star and a four-star hotel.

3.2 Accordingly, respondent no. 1 appointed SBI Capital Market Limited as its lead merchant banker. The appellant which, is in the business of merchant banking, amongst others, offered to underwrite the public issue. Evidently, there were other entities as well, which underwrote the public issue. For this purpose, underwriters executed an agreement dated 10.01.1995 with respondent no. 1. It is these underwriters (totalling to 233) which were arrayed as respondents to the petition filed under Section 20.

3.3 The public issue evidently opened on 14.02.1995 Since the Registrar to the Issue and its lead manager informed respondent no. 1 that, the issue was fully subscribed; a decision was taken to close the issue on 18.02.1995, which incidentally, was the earliest closing date prescribed for the issue. It is the case of respondent no. 1 that because of propaganda by business rivals, there were large scale withdrawals by applicants. Some of the applicants also, according to respondent no. 1, took steps to stop payment of cheques deposited by them alongwith their respective application forms. The net result of this was that, what was a fully subscribed issue, turned into one which fell below the minimum stipulated subscription (equivalent to 90% of the total value of the issue) as indicated in the prospectus. Consequently, respondent no. 1 was directed by SEBI to refund, the application money; the underwriters having declined to support this issue.

3.4 It is because of this reason that not only did respondent no. 1 file a petition under section 20 of the 1940 act, but also preferred a petition under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 before the Monopolies and Restricted Trade Practices Commission (as it was then constituted). Consequently, respondent no. 1 lodged a claim for damages, amounting to Rs. 6,28,63,000/- against the appellant alongwith interest at the rate of 24% per annum with the MRTP Commission.

3.5 The appellant, on its part contested these proceedings inter alia on the ground that the liability of an underwriter devolved on it only if the issue was not fully subscribed. Since the issue was fully subscribed, it could not be held liable for subsequent withdrawals of the applications; a situation which occurred on account of the acts of omission and commission of the CMD and Managing Director of respondent no. 1, Sh. Pavan Sachdeva. An allegation was also made that respondent no. 1 had artificially maintained the price of its shares, to ensure a greater public response.

4. However, on account of a settlement arrived at between the parties, evidently all proceedings between the two warring parties came to an end.

4.1 The appellant, though two years later, initiated proceedings under Section 340 of the New Code. Accordingly, on 24.01.2011, an application was filed on the ground that the underwriting agreement dated 10.01.1995, which was filed in CS(OS) No. 1299/1997 (i.e, the proceedings under section 20 of the 1940 act), was a fabricated, forged and an ante-dated document.

4.2 In order to demonstrate forgery, the appellant sought to rely upon two filings made by respondent no. 1, one before the MRTP Commission and the other before the arbitrator alongwith its statement of claim. The appellant attempted to establish forgery before the learned Single Judge by relying upon the fact that while, the agreement filed with the MRTP Commission did not bear the signature of a representative of respondent no. 1 and bore only the signature and stamp appended on behalf of the appellant, the underwriting agreement filed before the learned arbitrator, had all the blank spaces filled in, which included and bore the signatures of the representatives of both the appellant as well as respondent no. 1.

4.3 The learned Single Judge, though was not, persuaded by these assertions and consequently by order dated 26.05.2011, dismissed the appellant's application.

5. It is in this context that an appeal was preferred to the Division Bench. As indicated earlier, an objection to the maintainability of the appeal was raised by respondent no. 2, i.e, Sh. Pavan Sachdeva. This is recorded by the Division bench in its order dated 21.12.2011 By a subsequent order dated 26.03.2012, Sh. Arun Mohan, learned Senior Counsel, was appointed as amicus curiae in the matter. It was only after, the matter had been referred to a Larger Bench on 05.11.2012 that, by an order dated 08.01.2013, Mr A'S. Chandhiok, learned ASG, was called upon to assist the court.

SUBMISSIONS OF COUNSELS/REPRESENTATIVES

6. With this preface in place, we will advert briefly, to the submissions made by counsels as also by Mr Pavan Sachdeva, respondent no. 2, in the present proceedings.

7. Mr M.L Sharma, learned counsel for the appellant, contended that the appeal was maintainable under Section 10 of the 1966 Act notwithstanding the exclusion of the High Court under Section 341 of the New Code3. It was his contention that since the application under Section 340 of the New Code was passed in a proceeding concluded under section 20 of the 1940 act, whereby an order was passed on 14.03.2007 for referring the disputes to arbitration, the proceedings were in the nature of civil proceedings and would thus be amenable to an appeal.

7.1 Mr. Sharma thus, in effect, made the submission that the view taken by the Division Bench of this Court in Ramesh Jaiswal case, that the proceedings under Section 340 of the New Code were in exercise of criminal jurisdiction was not in line with view taken in several judgments by other courts. In support of submissions, he relied upon the following judgments: Har Prasad Das v. Emperor 1913 (14) Cri. L.J.R 197; Surendra Nath Maity v. Susil Kumar Chakrabarty AIR 1931 Calcutta 604; Kuldip Singh v. State of Punjab AIR 1956 SC 391; K. Karunakaran v. T.V Eachara Warrier, (1978) 1 SCC 18; Pritish v. State of Maharashtra, (2002) 1 SCC 253;

8. Dr. Arun Mohan made the submission that while Section 340 of the New Code did not enable an appeal, in view of the exclusion of the High Court on account of the usage of the expression ‘other than the High Court’ inserted in Section 341 of the New Code, it did not also prohibit an appeal, if it was otherwise available to an aggrieved party. We may note that this submission of Dr. Arun Mohan was a refinement over his earlier submission made in the course of the proceedings before us, when he took the position that no appeal was maintainable under Section 341 of the New Code against an order of a Single Judge of the High Court. As a matter of fact, Dr. Arun Mohan did argue at one stage; albeit before the Division Bench, that the issue was no longer res integra in view of the judgment of the Division Bench of this Court in the case of Ramesh Jaiswal, to which we have made a reference above.

8.1 Dr. Arun Mohan thus, sought to contend that, not to enable an appeal, where a court refuses a request to make complaint or makes a complaint under Section 340 of the New Code is not the same thing as saying that the said provision prohibits an appeal. To illustrate the point Dr. Arun Mohan submitted that there are many orders passed by a court which are not appealable under the provisions of Order 43 Rule 1 of the Code of Civil Procedure, 1973 (in short CPC) as they fall outside the purview of clauses (a) to (w) but, would otherwise be appealable, under Section 10 of the 1966 Act, as long as they fulfilled the characteristic of a judgment. In other words, Section 341 of the New Code would not prohibit an appeal if, it is otherwise maintainable under a statute.

8.2 On the other aspect, whether a decision taken on an application under Section 340 of the New Code was a decision in exercise of its criminal jurisdiction, Dr. Arun Mohan submitted that it was not so, as that stage would arise, only when, a complaint is referred to the Magistrate and he takes cognizance of the same by issuing process to the accused. In other words, it was his submission that, at the stage at which a court takes a decision, to either institute a complaint, or not to institute a complaint; there being no adjudication of guilt or innocence of the accused, it would not fall within the exclusionary part of clause 10 of the Letters Patent; which prohibits appeals, where a court exercises criminal jurisdiction. The submission was thus, that the court, at that juncture will only decide whether it is expedient in the interest of justice to initiate an inquiry against the person qua whom, the application under Section 340 of the New Code is directed. The decision is one relating to the protection of the court's process and not to adjudicate upon the guilt or innocence, so as to attract the exclusion/prohibition adverted to in clause 10 of the Letters Patent. It is only when, the Magistrate takes cognizance under Section 190 of the New Code and issues process, that the criminal jurisdiction gets triggered for the purposes of attracting the exclusion/prohibition contained in clause 10 of the Letters Patent.

8.3 In his capacity as Amicus Curiae, Dr. Arun Mohan drew our attention to the following judgments; including those which took the contrary view: K. Karunakaran's case : Abdul Karim Haji Zaveri v. District Magistrate 2005 Cri. L.J 1651; Chennapa v. Basappa (1984) 1 KLJ 204; Bairang Lal Laxmi Narain Dadli Regd. Partnership firm, Peedwana v. Jeetmal 2000 (2) WLN 319; Dr. Subir Kumar Ghosh v. Prasar Bharti Broadcasting Corporation of India 2006 Cri. L.J 4109; Indian Structural Engineering Company (P) Ltd. v. Pradip Kumar 2009 Cri. L.J 4229; V. Narayana Reddiar v. Rugmini Ammal 2000 (3) KLT 301; Rugmini Ammal v. V. Naravana Reddiar (2007) 12 SCC 611 : AIR 2008 SC 895; P'S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672; Fuerst Day Lawson Limited v. Jindal Exports Limited., (2011) 8 SCC 333; C'S. Agarwal v. State 2011 (125) DRJ 241 (FB);.

9. Mr Chandhiok, learned ASG, on the other hand contended that in view of the expression ‘other than the High Court’ having been inserted in Section 341 of the New Code, no appeal was maintainable from any order passed by a Single Judge of the High Court. In other words, ah intra-court appeal was not available, notwithstanding the nature of jurisdiction exercised by a Single Judge of the High Court, while entertaining an application under Section 340 of the New Code.

9.1 Mr Chandhiok, further submitted that the decision of a court whether or not to institute a complaint under Section 340 of the New Code, was a decision, which the court took in exercise of a criminal jurisdiction and, therefore, by logical corollary no appeal was maintainable either under Section 10 of the 1966 Act or under clause 10 of the Letters Patent. In this context, it was Mr Chandiok's submission that a Single Judge of the High Court was not a court subordinate to the Division Bench of the same court within the meaning of sub section (4) of Section 195 of the New Code4. It was thus Mr Chandiok's contention that, it is for this precise reason that the legislature had included the expression other than the High Court, in Section 341 of the New Code. Therefore, if the Division Bench were to deal with an application under Section 340 of the New Code, the appeal would lie to the Supreme Court under Article 136 of the Constitution.

9.2 On the aspect of as to whether the decision taken on an application whether or not to file a complaint under Section 340 of the New Code was a decision taken in exercise of criminal jurisdiction by a court, Mr Chandiok contended that it was so. It was his submission that any proceedings which were initiated under the criminal procedure code, which resulted in a trial and thereafter a conviction or an acquittal, could only have attributes of a criminal proceeding. Thus, according to Mr Chandhiok, in view of the express exclusion of the High Court from the appeal provision contained in Section 341 of the New Code, no appeal could be maintained irrespective of the jurisdiction under which a Single Judge of this High Court is called upon to deal with an application under Section 340 of the New Code. In support of his submissions Mr Chandhiok relied upon following judgments: In re D'S. Raju Gupta AIR 1939 Madras 472; Emperor v. Bhatu Sadu Mali AIR 1938 Bombay 225 (FB); Mt. Rampati Kuer v. Jadunandan Thakur AIR 1968 Patna 100 (FB); Sri Chand v. State of U.P 2003 Cri.L.J 4094; Jose Kuruvinakunnel v. A.T Jose 1997 Cri.L.J 816; and C'S. Agarwal's case;

9.3 Mr Chandhiok lastly contended that, the criminal procedure code, i.e, the New Code was a complete code and therefore the court could not look to other statutes for enabling an aggrieved party to prefer an appeal. The exclusion of the High Court in Section 341 of the New Code, barred such an examination.

9.4 Mr Pavan Sachdeva chose to adopt the submissions made by Mr Chandhiok.

10. Having heard the learned counsels for the parties, according to us, two issues arise for our consideration:

(i) whether the expression ‘other than the High Court’ appearing in Section 341 of the New Code disable an appeal being preferred under other statutes/provisions of law? and

(ii) whether a decision taken by a court, to either proceed or not to proceed in respect of a complaint filed under Section 340 of the New Code, is a decision, taken in exercise of criminal jurisdiction?

11. Before we proceed further it may be relevant to first notice the pari materia provisions which, obtained in the Code of Criminal Procedure of 1898 (in short the Old Code).

11.1 Sections 476, 476A5 and 476B6 found in the Old Code are pari materia with Section 340 and 341 of the New Code. Section 195 remains almost the same both in the Old and the New Code. The aforementioned provisions in the Old Code are found in chapter XXXV, whereas in the New Code, they are found in chapter XXVI. The heading of both chapters is more or less the same. While under the Old code the heading reads as “Proceedings in case of certain Offences Affecting the Administration of Justice”, the heading in the New Code is “Provisions as to Offences Affecting the Administration of Justice”.

11.2 A comparative analysis of the relevant provisions of the Old Code and the New Code would show that where a complaint is filed either under section 476 of the old code7 or under Section 340 of the New Code, the court concerned is called upon to decide whether in its opinion, it is expedient in the interest of justice that an inquiry should be made into any or all offences referred to in clause (b) of sub-section (1) of Section 195. Importantly, the offences adverted in Section 195(1)(b) had to be those which were committed in or in relation to a proceeding in that court or as the case may be in respect of a document produced or given in evidence in a proceeding in that court. It is left to the discretion of the court whether or not a preliminary inquiry should be held, for this purpose, before it arrives at an opinion whether or not to initiate a complaint under Section 340(1) of the New Code. If the court decides to initiate an inquiry it has several options. In case, a court neither rejects a complaint filed under sub section (1) of section 340 nor makes a complaint, the said power can be exercised by a court superior to that court in which such a complaint lies. The deemed subordination of the concerned court is governed by the provisions of sub section (4) of Section 195 of the New Code. Under sub-section (3), if the court making the complaint is the High Court, the complaint can be signed by the officer who is appointed for the said purpose. In case of a court, other than the High Court, the complaint can be signed by the presiding officer of the court or by such officer of the court as the court may authorize in writing in this behalf. Sub section (4) of section 340 assigns the same meaning to the word ‘court’ as that which obtains in section 195.

11.3 In substance there is no difference in the provisions contained in the New Code and those that obtain in the Old Code. The only material difference which arises is, in the appeal provisions of the two codes. In Section 341 of the New Code the words other than the high court” are inserted which are not contained in Section 476 B of the Old Code.

11.4 Prior to the enactment of the New Code there were two significant judgments delivered by the Supreme Court on the pari materia provisions of the Old Code, i.e, Sections 476 and 476B.

11.5 The first decision was in the case of M'S. Sheriff v. State of Madras AIR 1954 SC 397. In this case the Supreme Court was called upon to decide inter alia as to whether an appeal under Section 476B would lie before it, against the judgment of the Division Bench of the High Court. The Supreme Court concluded, on an interpretation of the section 195(3) of the Old Code (which is pari materia with section 195(4) of the New Code), that it deemed a court to be subordinate to another court if, it was a court to which appeals ordinarily lie from appealable decrees or sentences of such former courts. The Supreme Court concluded that, the court to which an appeal would ordinarily lie from an appealable decree or sentence of a Division Bench of a High Court, would be to itself. Accordingly, it held that an appeal would lie to it from an order of a Division Bench passed under section 476 of the old code.

11.6 The other aspect on which the Supreme Court touched was that while taking a decision in an application filed under section 476 of the old code, the relevant consideration is: whether it is expedient in the interest of justice that an inquiry should be made and a complaint filed. The court after examining the material on record should reach a conclusion that it is a matter which requires investigation by a criminal court and, it is expedient in the interest of justice to have it inquired. See paragraphs 11 and 12 of the judgement in M'S'Sheriffs case.

11.7 The other judgment of the Supreme Court qua the Old Code is, the judgment rendered by it, in the case of Narain Pas v. State of Uttar Pradesh AIR 1961 SC 181. This was a case in which, the petitioner before the Supreme Court had filed a writ petition under Article 226 of the Constitution in the High Court of Allahabad. In that writ petition, an application had been filed under section 476 of the old code, on the ground that, an affidavit filed by one of the parties contained a false averment. The said application was dismissed. Consequently, the petitioner preferred an appeal under Section 476 B of the Old Code. The issue before the Supreme Court was whether the appeal filed before it, was competent. The Supreme Court ruled that the appeal filed before it, was not maintainable, and that, the appeal would lie with the Division Bench of the Allahabad High Court, due to the artificial meaning given to the word subordinate.. The Supreme Court, resultantly, held that the Single Judge of the High Court was a court subordinate to the Appellate Bench of the same High Court. The reasoning of the court is contained in paragraphs 3 and 4 of the said judgment. The same are extracted hereinbelow for the sake of convenience:

“….3. Any person aggrieved by an order of a Court under s. 476 of the Code may appeal in view of Section 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 situated. The decrees of a single Judge of the High Court exercising civil jurisdiction are ordinarily appealable to the High Court under clause 10 of the Letters Patent of the Allahabad High Court read with clause 13 of the United Provinces High Courts (Amalgamation) Order, 1948. It is true that the decision of 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 appealable 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 of a Civil Court 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 situated, 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 situated.

4. It was urged by the learned Advocate for Narain Das that the order of the learned single Judge under 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 clause 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 clause 10 of the Letters Patent of the Allahabad High Court, and therefore this appeal lies to the High Court……

12. The matter was considered by the Law Commission of India in its 41st Report (September, 1969). The Law Commission having regard to the judgment of the Supreme Court in M'S. Sheriff's case came to the conclusion that so far as the High Court was concerned, there was no need for an independent right of an appeal against its decision. The observations of the Law Commission are contained in paragraph 35.8

…..35.8 It has been held by the Supreme Court8 that an appeal lies under section 476B to the Supreme Court from an order of a division bench of the High Court directing a complaint under section 476. In our view, this position should be altered by excluding the High Court from the scope of section 476B. So far as the High Court is concerned, there is no need for an independent right of appeal against its decision to make a complaint….

13. It is in this background that the Law Commission had proposed that in Section 476B the words “other than the High Court” should be inserted. With the New Code being enacted, the said expression found a mention in Section 341 of the New Code.

14. It is, in our view, quite obvious that when, the Law Commission made a recommendation in its 41st Report in this behalf, it had in mind the judgment of the Supreme Court in the case of M'S. Sheriff, What was perhaps not brought to the notice of the Law Commission was the judgment of the Supreme Court in the case of Narain Das. A fair reading of the observations of the Law Commission would show that it was their considered opinion that, since a Division Bench of a High Court, did not have a court superior to it within the same High Court within the meaning of section 195(3) of the Old Code [and now Section 195(4) of the New Code], it was superfluous to provide for an appeal under Section 476B of the Old Code (and now Section 341 of the New Code). This is also evident from the fact that no changes were made in sub-Section (2) of Section 476 of the Old Code, which is equivalent to sub-Section (2) of Section 340. The said provisions both in the Old and New Code allow, a superior court to withdraw an application filed under sub-section (1) of Section 476 of the Old Code, on which the court has neither ordered institution of a complaint nor rejected the application for making such a complaint. It is quite possible that such a situation could arise where an application is filed before a Single Judge and neither a complaint is made nor is the application for making the complaint, rejected. If the single judge is a court subordinate to a Division Bench under subsection (4) to Section 195 of the New Code, the appellate court could withdraw the complaint to itself.

15. Therefore, by virtue of presence of this intrinsic evidence, the argument that the expression “other than the High Court” obtaining in section 341 sought to exclude an intra-court appeal completely, does not appear to be quite correct. What it did seek to exclude was an appeal under Section 341 of the New Code. The legislature was aware that in various High Courts intra-court appeals were available either under a statute or under the Letters Patent.

15.1 The argument of Mr Chandhiok that exclusion of the High Court in Section 341 of the New Code excludes an appeal, is pivoted on the argument that Chapter XXVI of the New Code is a self-contained Code, and therefore, decisions on an application can only be challenged by way of an appeal as provided in Section 341 of the New Code.

15.2 It must be remembered that in so far as this court is concerned, it was constituted under the 1966 Act. Under Section 5 read with Section 10 of the 1966 Act, an appeal is maintainable with a Division Bench of this court against a judgment of a Single Judge of this court while exercising ordinary original civil jurisdiction as conferred by sub section (2) of section 5. Similarly, clause 10 of the Letters Patent, as applicable to this Court, provides that an appeal shall lie to the Division Bench from a judgment of a Single Judge of this court except in circumstances specifically excluded.

15.3 In this behalf, one would also have to take notice of Section 5 of the New Code, which clearly saves all special or local laws which are in force and any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. A conjoint reading of the same would show that the exclusion of High Court from Section 341 of the New Code, does not take away the right of an aggrieved party to file an appeal under any other statute or enactment as the same is saved by virtue of Section 59 of the New Code.

15.4 We are fortified in our view with principle enunciated in the Judgment of the Supreme Court in the case of P'S. Sathappan, wherein the Supreme Court was called upon to consider whether the provision of appeal provided under clause 15 of the Letters Patent of the High Court of Madras was taken away by virtue of sub-clause (2) of section 104 of the Code of Civil Procedure. The majority view, in the said case, was that, the provision of appeal in the Letters Patent could not be excluded by implication. The court took aid of section 4 of cpc, which is pari materia, with Section 5 of the New Code. The court concluded that the appeals filed under clause 15 of the Letters Patent, would be maintainable10. This view of the court was inter alia based on the judgment of an earlier Constitution Bench in the case of Gulab Bhai v. Punia (1966) 2 SCR 102 and, the Privy Council judgment, in the case of Hurrish Chunder Chowdhry v. Kali Sundari Debia (1882-83) 10 Ind. Appl. 4.

16. Thus, in our view, the exclusion of the High Court under Section 341 of the New Code, does not exclude provisions of appeal if otherwise available under other acts, special acts and local laws. section 100a11 of the cpc illustrates this point in no uncertain terms. Section 100A expressly excludes the applicability of the appeal provisions contained in Letters Patent issued qua High Courts in the country.

17. Mr Chandhiok had sought to distinguish the position of law stated in P'S. Sathappan's case by relying upon the judgement of the Supreme Court in the case of Fuerst Day Lawson Ltd. In our view, the judgment by a Division Bench of the Supreme Court quite clearly indicates why the principle enunciated in P'S. Sathappan's case was not applicable in that case. In Fuerst Day Lawson's case, the Supreme Court was called upon to consider as to whether an appeal under the Letters Patent of the High Court would be available, despite the fact that, certain orders passed in the course of arbitration proceedings, were not appealable under section 50 of the arbitration & conciliation act, 1996. The Court, after a detailed analysis, summed up the position in paragraph 89 at page 371 of its judgment, by observing that in so far as the 1940 Act was concerned, the Supreme Court had itself held right uptill P'S. Sathappan's case, that it was a ‘self-contained Code’ and therefore, there was no good reason not to hold, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration, as much as possible, in harmony with the UNCITRAL Model, as a ‘self-contained Code’. Therefore, once it is concluded that the special act is a self-contained Code, the Letters Patent Appeal, would stand excluded. The relevant observations are contained, as indicated above, in paragraph 89 which, for the sake of convenience are extracted hereinafter.

…89. It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P'S. Sathappan) was held to be a self-contained code. Now, if Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it “a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done”. In other words, a Letters Patent Appeal would be excluded by application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded…..

(emphasis supplied)

18. Therefore, the question is: as to whether chapter XXI of the New Code is a self-contained code. To our minds, the very fact that an application for perjury could be made in any court, whether a civil, criminal or even a revenue court each of which would be governed by their own procedural law, would show that it is not a self-contained code. Sub Section (3) of Section 195 of the New Code includes in the term “Court” not only a civil, criminal or revenue court, but also a tribunal constituted by or under a central, provincial or state Act if declared by that Act to be a court for the purpose of the said Section. Under sub section (4) of Section 195, it is indicated, that a court shall be deemed to be subordinate to a court to which appeals ordinarily lie from appealable decrees or sentences of such former courts. In case of a civil court, from whose decrees no appeal ordinarily lie, the appeal would lie to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situate. There can, therefore, be no doubt that for the purpose of arriving at a decision in an application filed under Section 340 of the New Code, the New Code is not a self-contained Code.

18.1 In our opinion, this argument loses sight of a very crucial aspect, which is, that a decision on an application under Section 340 of the New Code, only triggers an inquiry by a criminal Court and that too if, it is deemed expedient in the interest of justice. The court, at that stage, does not decide the guilt or innocence of the party against whom the application is directed. Once, an opinion is formed by a court to lodge a complaint then, the Criminal Procedure Code is set in motion. The procedure of inquiry carried out by the Magistrate would then be governed by the Criminal Procedure Code, i.e, the New Code. Therefore, the challenge to a decision of a court which directs filing of the complaint or rejects a request for filing a complaint is not necessarily governed by the Criminal Procedure Code, unless the court concerned is a court exercising criminal jurisdiction.

18.2 This aspect, as to nature of the decision reached on an application under Section 340 of the New Code, is articulated in the judgment of the Supreme Court in the case of Pritish v. State of Maharashtra. The brief facts obtaining in this case were as follows: The land of the appellants before the Supreme Court was acquired by the State Government of Maharashtra for construction of a canal. The appellants not being satisfied with the compensation granted by the Land Acquisition Officer; filed a reference under Section 18 of the Land Acquisition Act, 1894. The Reference Court granted a substantial enhancement. Couple of years later, some persons who were residing in the same locality brought to the notice of the Reference Court the fact that the appellants had obtained enhancement by producing forged sale deeds before it. The Reference Court, after making inquiries, came to the conclusion that a complaint be filed against them under Section 340 of the New Code. The matter was carried right till the Supreme Court. One of the principal issues raised before the Supreme Court was that, the principles of natural justice had been given a go-by as the Reference Court had proceeded to make an inquiry without giving an opportunity to the appellants of being heard in the matter, and thus, causing grave prejudice to them. The Supreme Court in this context examined the attributes of the decision which is taken by the court when dealing with an application under Section 340 of the New Code. After a detailed deliberation, the Supreme Court came to the conclusion that at the stage of taking a decision on an application under Section 340 of the New Code, the court does not decide the guilt or innocence of a person, the scope of its decision is confined to arriving at a conclusion, which is that, based on the material available before it, whether the matter requires inquiry by a criminal court, and if it does, would it be expedient in the interest of justice to have it inquired into. It thus, rejected the contention of the appellants before it, that the decision to initiate proceedings against them violated principles of natural justice. While reaching this conclusion, the Supreme Court made some crucial observations with regard to the scope of the Section. These observations being relevant are extracted hereinafter:

“…..9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This subsection has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.

10. “Inquiry” is defined in Section 2(g) of the Code as “every inquiry, other than a trial, conducted under this Code by a magistrate or court.” It refers to the pre trial inquiry, and in the present context it means the inquiry to be conducted by the magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the magistrate of first class concerned. As the offences involved are all falling within the purview of “warrant case” [as defined in Section 2(x)] of the Code the magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that section 343 of the code specifies that the magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code.

11. Section 238 of the Code says that the magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the accused. Section 239 enjoins on the magistrate to consider the complaint and the documents sent with it. He may also make such examination of the accused, as he thinks necessary. Then the magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless. If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof section 240 of the code says that if the magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused. Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the magistrate has to proceed to conduct the trial. Until then the inquiry continues before the magistrate.

12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in section 239 of the code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged… ….

…..16. Be it noted that the court at the stage envisaged in section 340 of the code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M'S. Sheriff v. State of Madras AIR 1954 SC 397 a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under section 340 of the code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into…..

19. Let us now deal with the second aspect, which is, whether the decision taken (to proceed or not to proceed with filing of a complaint under Section 340 of the New Code) is a decision taken by the Court in exercise of its criminal jurisdiction. The aforesaid observations of the Supreme Court in Pritish v. State of Mahrashtra case gives a clue that it is not a decision in the exercise of criminal jurisdiction. This view has also been taken by certain High Courts, which would be adverting to hereinbelow.

19.1 We may also point out that there is a contra view held by certain other High Courts. Therefore, we will first advert to the cases, which take the view, though under the Old Code, that exercise of power under section 476 of the old code by a civil or a revenue court would not convert, so to say, the said court into a criminal court, because if that was so the power of the revision under Section 43912 of the Old Code would be available to the High Courts, as then constituted.

20. This was a view taken by a Full Bench of the Calcutta High Court, comprising of five learned Judges (Jenkins C.J and Harrington, Stephen, Asutosh Mookerjee and Holmwood JJ.), in the case of Har Prasad Das. In this case, an order under section 476 of the old code was passed by a Settlement Officer, dealing with proceedings under Chapter X of the Bengal Tenancy Act. This order was sought to be revised by taking recourse to section 439 of the old code. A Bench of the High Court was of the view that the correctness of the order could be examined under Section 115 of the then enacted Civil Procedure Code or Section 15 of the High Court, and not, under section 439 of the old code. In order to appreciate the view taken by the Full Bench, it may be relevant to refer to certain observations made by the Judge referring the question of law. The reference was made by Justice Holmwood. His observations with respect to the same were as follows:

……The question seems to me to depend on the construction of section 439 and as regards that I agree with the view expressed by Stanley, C.J I cannot see how section 439 can be strained to include the proceedings of a Civil or Revenue Court. The Munsif or Revenue Officer by exercising how powers under section 476 does not thereby make himself a Criminal court. A full Bench of this Court has held that proceedings under Chapter XII, Criminal Procedure Code, can only be dealt with under the Charter and not under section 439. It, therefore, establishes the principle laid down by Stanley, C.J, that section 435 to 439 must be read together and cannot be separated. The word ‘any proceeding’ occurs in section 435 exactly as it does in section 439 and the exclusion of Chapter XII and certain other sections in section 435 seems to exclude them equally from the operation of section 439. In the sections as regards contempt of court which immediately follow. Civil and Revenue Courts are given distinct criminal powers. Yet it is enacted that the appeal lies to the Court to which decrees or orders made in such court are ordinarily appealable. Further, it is said that the provisions of Chapter XXXI, that is, the Chapter on appeals, shall apply so far as they are applicable to appeals under section 485 but the law is silent as to revision under Chapter XXXI. Now it is clear that when acting under section 476 the Civil and Revenue Courts are not exercising in any wav such direct criminal powers as they are under section 480 to 484 and it appears, therefore, anomalous that the Criminal Bench of the High Court should have revisional jurisdiction under section 476 from Civil and Revenue Courts which is apparently excluded in the case of convictions for contempt.

The Civil Court has no power to punish under section 476 and merely expresses its judicial opinion as a Civil Court that the offender has rendered himself liable to the jurisdiction of the Criminal Court. That judicial opinion is liable to revision by the High Court in its revisional powers under section 115, Civil Procedure Code, and as Sir John Stanley says under that alone. There is, however, this decided conflict of opinion in all the Courts and Banerji, J., points out that the same conflict has occurred in Bombay: Queen Empress v. Rachappa 13 B. 109 and In Re Balgangadhar Tilak 26 B. 785.

But we are only concerned with the decisions of this court and the questions, therefore, which we refer to the Full Bench are:

(1) Was the case of Kali Prasad Chatterjee v. Bhupan Mohini Dasi rightly decided? Or

(2) Was the case of Emperor v. Gopal Barik rightly decided?

(3) Has the High Court revisional powers under section 439, Criminal Procedure Code, in the case of orders passed by Civil and Revenue Courts under section 476?

(4) Can the High Court, in the exercise of its Criminal jurisdiction, look into such orders under section 15 of the Charter, or is section 115 Civil Procedure Code, the only section under which such orders can be revised?

(5) If the latter, can the Bench exercising criminal jurisdiction deal with such matters under section 115, Civil Procedure Code?….

(emphasis supplied)

20.1 The Full Bench answered the question as follows:

……‘Sub-section 1 of section 476 provides that when any Civil. Criminal or Revenue Court is of opinion that there is ground for inquiring into any offence referred to in section 195 and committed before it or brought under its notice in the course of a judicial proceeding, such Court, after making any preliminary inquiry that may be necessary, may send the case for inquiry or trial to the nearest Magistrate of the first class, and may send the accused in custody or take sufficient security for his appearance. Before such Magistrate: and may bind over any person to appear and given evidence on such inquiry or trial. On behalf of the petitioner, it has been contended, that when action is taken by a Civil Court under section 476 the proceeding before it is a proceeding within the meaning of the first sub-section either of section 435 or of section 439 of the Criminal Procedure Code. This argument, in each of its two branches, is, in our opinion, unsound. subsection 1 of section 435 authorises this Court to call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its jurisdiction. When a Civil Court subordinate to this Court, takes action under Section 476. it cannot plainly be deemed an inferior Criminal Court within the meaning of sub-section 1 of section 435. That section consequently has no application. Nor does section 439 touch the matter. It is clear that sections 435-439 must be read together, as pointed out by Wilson, J. In Hari Dass Sanyals v. Saritulla. Section 439 must, therefore, be read along with and subject to the provisions of section 435. It follows that when an order has been made by a Civil Court under section 476 of the Criminal Procedure Code, it cannot be revised by this Court under section 439. It is equally plain that the order may be revised by this Court under section 115 of the Civil Procedure Code on any of the ground mentioned therein, or may be examined under section 15 of the High Courts Act.

When action is taken by a Criminal Court subordinate to this court, under section 476 of the Criminal Procedure Code, the proceeding before it is obviously a proceeding before an inferior Criminal Court within the meaning of section 435. and the order made therein is. conseouently. liable to revision under section 439.

When action is taken by a Revenue court under section 476. the proceeding before it is for the reason already assigned, not a proceeding before an inferior Criminal Court within the meaning of section 435. The order made therein is accordingly not open to revision under section 439 read with section 435. But the order is open to revision under section 115 of the Civil Procedure Code on any of the grounds mentioned therein, or under section 15 of the High Courts Act. 24 and 25 vict. c. 104: the order is made by a Revenue Authority as a Court in the course of a judicial proceeding before it; with reference to such judicial proceeding, the Revenue Court is a court subordinate to this Court within the meaning of section 115 of the Civil Procedure Code, and is a Court subject to the appellate jurisdiction of this court within the meaning of section 15 of 24 and 25 Vict, c. 104.

In view of the exposition of the law, the questions submitted to this bench must be answered as follows:

1. The case of Kali Prasad Chatterjee v. Bhupan Mohini Dasi was correctly decided, in so far as it held that an order under section 476 of the Criminal Procedure Code made by a Civil Court (in that case, the Court of a Munsif) cannot be revised by this Court under section 439.

2. The case of Emperor v. Gopal Barik was correctly decided, in so far as it held that an order under section 476 of the Criminal Procedure Code made by a Criminal Court (in that case, the Court of a Sub-Divisional Magistrate) can be revised under section 439.

3. In the case of an order passed under section 476 by a civil or a Revenue Court, section 439 has no application.

4. In the case of an order passed by a civil or a Revenue Court under section 476, the High Court can exercise the powers vested in it by section 115 of the Civil Procedure Code or Section 15 of the High Courts Act.

5. When an order under section 476 made by a Civil or a Revenue Court is sought to be revised by this Court, the Bench exercising criminal jurisdiction cannot, as such, deal with the matter, but the Judges composing that Bench may do so, if authorised by the Chief Justice under section 14 of the High Courts Act.

In the case before us. the order in question was made by a Settlement officer dealing with proceedings under Chapter X of the Bengal Tenancy Act. His order is. consequently, not open to revision under section 439 of the Criminal Procedure Code, but mav be examined under section 115 of the Civil Procedure Code or Section 15 of the High Courts Act. With this intimation of the opinion of the Court, the case is returned to the Referring bench in order that it may be dealt with according to law.,

(emphasis supplied)

20.2 This view was adopted in the case of Surendra Nath. The issue arose for consideration before the High Court of Calcutta in the context of the allegation that documents filed in the title suit were forged. The Munsiff s court had rejected the application of the defendants under section 476 of the old code on the ground that it was belated and that the suit having already been withdrawn, it was filed perhaps, for some ulterior motives. The matter was taken up in appeal to the District Judge, who while holding that it was not an ordinary civil matter, took the view that the Munsiff should have not allowed the case to be disposed of in a summary manner and ought to have made a complaint or at any rate ought to have held an inquiry. This is how the matter reached the High Court in a revision filed under section 115 of the Civil Procedure Code, as it then obtained. Lort Williams, J, speaking for the Division Bench, made the following observations, in so far as they are relevant for our purposes:

“… ….The matter comes before us in revision under Section 115, Civil P.C, It has been decided in the case of Emperor v. Har Prasad Das [1913] 40 Cal. 477 (Full Bench) that when an order under Section 476, Criminal P.C is passed by a civil or revenue Court Section 439, Criminal P.C has no application but that the High Court can exercise its revisional power under Section 115, Civil P.C By an order made by the Chief Justice this Criminal Bench has been authorized to deal with such matters. Our powers under Section 115, Civil P.C are strictly limited to those mentioned therein. Substantially we cannot interfere unless the Subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction so vested in it or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

3. The first question raised before us is that upon such an application as this we must be guided by the provisions of the Criminal P.C Section 476 being contained within that Code. In the case of Hamid Ali v. Madhu Sudan Das, AIR 1927 Cal 284 the learned Judges differed upon this question Chotzner, J., being, of opinion that the Criminal Procedure Code applied and Duval, J., being of opinion that the Civil Procedure Code applied. In the case of Nasaruddin Khan v. Emperor, AIR 1927 Cal 98 which was decided by C.C Ghose and Duval, JJ., it was decided that the Civil Procedure Code applied; and in the case of Mahendra Nath Das v. Emperor, AIR 1929 Cal 428, Suhrawardy, J. agreed with the latter view. Personally I also agree with this view and think that all such applications under Sections 476, 476-A and 476-B originating in civil Courts must be dealt with according to the provisions of the Civil Procedure Code. If that Code is applicable it is clear that there is ample power under Order 41 thereof, to enable the District Judge to make the order for further enquiry which he made in this case.

4. One of the arguments raised by the learned advocate for the petitioner was that Sections 476, 476-A and 476-B are intended to be self contained and are concerned with a special procedure which has been incorporated in the body of the Code. That, no doubt, would be a convenient view and would tend to restricted appeals in matters which essentially are for the exercise of discretion by the trial Judge. But in our opinion this cannot be a sound view, because there are a number of steps in procedure such as the proper mode of making applications and of filing appeals, details of which are not to be found in any of these sections and the provisions for which must be looked for in other sections of the Code. If therefore the provisions of the Civil Procedure Code do not apply, we are of opinion that the provisions of the Criminal Procedure Code under Ch. 31, apply to matters arising under Section 476 or Sections 476-A and 476- B except where it is clear from the sections themselves that the provisions are restricted to matters arising solely under that chapter. For example, Section 428 (1) refers only to appeals under Ch. 31 and has no application to matters arising under Section 476. This was decided in Vannia Nainu v. Periasami Naidu, AIR 1928 Mad 391. But in our opinion Section 413 clearly applies and Sub-sections 1 (b) and 1 (c) gave the District Judge ample power to make the order. This view was taken by Suhrawardy and Costello, JJ. in, Mahomed Boyatulla v. Emperor: AIR 1931 Cal 3. The learned Judges said:

We think that appeals under Section 476-B are subject to all provisions applicable to criminal appeals as laid down in Section 419 and the following sections or the Criminal P.C

5. In our opinion it is obvious that Section 476-B is not intended to be exhaustive, but provides powers supplementary to those which are given under Ch. 31. Otherwise for example the appellate Court would have no power to dismiss an appeal brought under that section. Moreover Section 404 shows that the provisions of Ch. 31 with certain exceptions specified in the section itself, apply to the whole of the Criminal Procedure Code.

6. On the specified question whether the learned Judge had power to remand the case, the judgment of Suhrawardy, J. in Mahendra's case (supra) is an authority to the extent that he was satisfied that such power of remand existed certainly under the Civil Procedure Code, This being the position we are of opinion that we cannot interfere with the order which the learned District Judge has made, but bearing in mind the fact that this is entirely a matter of discretion, and that the Munsif had all the facts before him when coming to the conclusion to reject the application, we consider, generally speaking, that it is unwise and improper to interfere with such exercise of discretion if it has been judicially exercised… …

(emphasis supplied)

20.3 A similar view has been taken in E.P Kumaravel Nadar v. T.P Shanmuva Nadar AIR 1940 Madras 465 (FB) and Swamiappa Mudaliar v. K.R Ponnammal, AIR 1959 Madras 107 at page 108 paragraph 2.

21. Mr Chandhiok cited two judgments before us, one of the Full Bench of the Patna High Court in Mt. Ramnati Kuer v. Jadunandan Thakur, AIR 1968 Patna 100 (FB) and the other of the Bombay High Court in Emperor v. Bhatu Sadu Mali, AIR 1938 Bom 225 (FB).

21.1 Brief facts which obtained in Mt. Rampati Kuer are as follows: the respondent before the court had filed a money suit against the petitioners alleging that petitioner no. 1 had executed a hand note in his favour. The petitioner, however, claimed that the hand note was a forgery. This charge was based on the revenue stamp affixed on the hand note, which was of a period post the date on which the hand note had been executed. It was the case of the petitioners that the defendant having become aware that the forgery had been detected got a petition filed through his brother, who was also one of the parties in the suit, wherein it was claimed that the hand note had been paid. Accordingly, the suit was dismissed. The petitioners, however, filed an application under section 476 of the old code, whereupon, the Munsiff's court (which is the court in which the original suit was filed) directed institution of complaint against the respondents under various sections of the Indian Penal Code, 1860 (in short IPC). Against one of the respondents, i.e, original plaintiffs, the learned Munsiff held that no prima facie case was made out.

21.2 Since both sides were aggrieved, two cross-appeals were filed with the District and Session Judge. These appeals were however transferred to the court of the Third Additional District & Session Judge; who disposed of the appeals by a common judgment. The Additional District and Session Judge allowed the appeal of respondent nos. 1 and 2 and upheld the order of the Munsiff declining to file a complaint against respondent no. 3. Consequently, a criminal revision petition was filed before the High Court, which in the first instance was listed before the Single Judge, who referred it to the Division Bench. The Division Bench treated the petition as civil revision petition and referred the matter to the Full Bench based on an earlier precedent of the same court that an appeal under Section 476B of the Old Code could not have been transferred by the District Judge to an Additional District Judge.

21.3 It is in this background the matter came to be referred to the Full Bench of three-Judges. The Three-Judges in turn referred the matter to a larger Bench of Five Judges, as a further question arose whether a revision petition against the order of the appellate court under Section 476B of the Old Code, ought to be treated as a civil revision or a criminal revision. In other words, the issue which was required to be answered was: whether the judgment of the court below was revisable under section 439 of the old code or under section 115 of the cpc? The Full Bench of the Patna High noticing the sharp division of views, on the subject, made the following observations:

“…..7. As regards the exercise of revisional jurisdiction there is a very sharp conflict in the views of almost all the High Courts in India. In Emperor v. Har Prasad Das, ILR 40 Cal 477, E.P Kumaravel Nadar v. Shanmuga Nadar AIR 1940 Mad 465 (FB) : AIR 1948 Pat 225 (FB) and Salig Ram v. Ramji Lal, ILR (1906) All 554. Full Benches of those High Courts have held that Section 115. C.P.C, alone would apply and the provisions of the Criminal Procedure Code have no application. On the other hand, a Full Bench of the Bombay High Court in Emperor v. Bhattu Sadu Mali, AIR 1938 Bom 225 (FB) and a Full Bench of the Punjab High Court in AIR 1957 Punj 134, after fully discussing the contrary view, held that the provisions of Section 439, Cr.P.C, would apply and not the provisions of Section 115, C.P.C Such diametrically opposite views expressed by some of the most distinguished Judges of High Courts only show how difficult it is to solve this problem. The only solution seems to be for the Legislature to intervene or for the Supreme Court to give its authoritative pronouncement when the occasion arises. In Kuldip Singh v. State of Punjab, AIR 1956 SC 391, their Lord-Ships, in paragraph 40 at page 399, did not decide this question and left it open.

8. It will be futile to discuss once again the relative merits of the two opposing views which have all been fully discussed in those judgments. I may, however, deal with one aspect of the matter. The Criminal Procedure Code, as its long title indicates, is an Act “to consolidate and amend the law relating to Criminal Procedure”. Sub-section (1) of Section 5 of that Code says that “all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained”, Sub-section (2), however, says that offences under any other law may be tried under the provisions of the Criminal Procedure Code, but Subject to any statutory provision regulating their investigation, inquiry and trial.

The scheme of the section, therefore, is that any offence under the Penal Code must be (1) investigated, (2) inquired into, (3) tried, and (4) otherwise dealt with, only under the provisions of the Criminal Procedure Code and not under any other statutory provision. Investigation and inquiry are both defined in Clauses (1) and (k) of Section 4. Investigation is the proceeding for collecting evidence conducted either by the police or by any person other than a Magistrate. Inquiry, however, includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. It will be noticed that in this definition clause the relevant word used is “Court” and not “Criminal. Court”. Hence an inquiry conducted by a Civil Court will also be an inquiry under Clause (k) of Section 4, even though such a Civil Court will not be one of the classes of Criminal Courts enumerated in Section 6,

The concept of inquiry as distinct from trial involves the idea that it is in the nature of a preliminary proceeding conducted by a Court for deciding whether a person should be placed on trial for an offence. The inquiry under Section 476, Cr.P.C, relates to offences under the Penal Code, even though such an inquiry may be made either by the Civil Court or Revenue Court, as the case may be. Hence, an inquiry under Section 476 by the Civil Court will also be an inquiry as defined in Clause (k) of Section 4 Cr.P.C It will be a criminal proceeding, though the inquiry is conducted by the Civil Court, in view of the express provisions of Section 476, read with Section 5 (1) of the Criminal Procedure Code. As pointed out by the House of Lords in Amand v. Home Secretary and Minister of Defence of Roval Netherlands Government 1943 AC 147, per Viscount Simon, L.C, at p. 156, “if the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a Court claiming jurisdiction to do so, the matter is criminal”. Here the preliminary inquiry under Section 476. Cr.P.C, may lead to the placing on trial or the alleged offender and his subsequent punishment, and it must, therefore, be held to be a criminal proceeding irrespective of whether the inquiry is conducted by the Criminal Court or Civil Court or Revenue Court, as authorised by the section. This decision of the House of Lords was cited with approval in A.W Meads v. Emperor, AIR 1945 FC 21.

9. The words “and otherwise dealt with” occurring in Subsection (1) of Section 5, Cr.P.C, require careful consideration. What is the true import and content of those words? In Delhi Administration v. Ram Singh AIR 1962 SC 63, their Lordships, while construing these words, observed as follows at p. 67:—

“The word ‘otherwise’ points to the fact that the expression ‘dealt with’ is all comprehensive, and that investigation, inquiry and trial were some aspects of ‘dealing with’ the offences.”

Though their Lordships did not exhaustively enumerate what the remaining aspects were, nevertheless by declaring that these words were “all comprehensive” they have clearly indicated that even appeals, revisions and other ancillary matters will also come within the scope of that comprehensive expression. Hence, if Sub-section (1) of Section 5, Cr.P.C, is construed in the light of the aforesaid decision of the Supreme Court, the reasonable inference is that appeals and revisions against inquiries made in respect of offences under the Penal Code should be regulated only by the provisions of the Criminal Procedure Code and not by the provisions of any other statute. This is because the proceeding is essentially criminal in nature, though the Civil Court gets jurisdiction by virtue of the express provisions in the Criminal Procedure Code.

With great respect to the learned Judges who have taken the contrary view, I am inclined to prefer the view taken in AIR 1938 Bom 225 and AIR 1957 Punj 134. In the aforesaid Punjab decision, Falshaw, C.J, has given an additional reason for preferring this view which may be mentioned. He rightly points out that if the contrary view is taken, Article 14 of the Constitution will be infringed. A person accused of having committed forgery before a Criminal Court will have a right to move the High Court under Section 439, Cr.P.C, and to challenge the propriety of the order of the lower Court and also ask for investigation into facts if the High Court considers it advisable. But another person accused of having committed the same offence before a Civil Court will be very much handicapped in seeking the revisional jurisdiction of the High Court under Section 115, C.P.C When there is so much ambiguity on the subject, it seems preferable to follow the view which will be more in conformity with the fundamental rights guaranteed by the Constitution……

(emphasis supplied)

21.4 As would be evident from the extract culled out hereinabove, the Full Bench of the Patna High Court in Mt. Rampati Kuer, approved the view taken by the Bombay High Court in Bhatu Sadu Mali's case. In Bhatu Sadu Mali case, the facts which obtained briefly; are as follows:—

21.5 The plaintiff obtained in 1933, a decree against the defendant; which was followed by darkhast proceedings being taken out in 1936 to execute the decree. In these proceedings, the defendant produced a receipt showing that a larger amount had been paid than what was in fact paid. It was not in dispute that the receipt was a forged document. Accordingly, the subordinate judge who tried the suit, recorded a finding under section 476 of the old code that in the interest of justice the matter ought to be inquired into. Accordingly, a complaint for forgery was lodged against the defendant.

21.6 The defendant preferred an appeal against the said direction to the District and Sessions Court. The District & Session Judge referred the matter to the Assistant Judge. The Assistant Judge came to the view that the complaint against the defendant should not be proceeded with, because the defendant had admitted to the forgery. Thereupon, the District and Session Judge called for the record and disagreed with the view taken by the Assistant Judge and, accordingly, submitted the papers to the High Court recommending that under its revisional powers it should restore the complaint of the subordinate judge.

21.7 The question, which thus arose, before the High Court for consideration was whether the order made by the Assistant Judge under Section 476B of the Old Code, was an order made by a Civil Court, so that High Court's revisional power would be governed by the provisions of section 115 of the cpc or, was an order, made by a criminal court or a court exercising criminal powers, and thus, the power to revise would be Sourced under section 439 of the old code. The observations of the Court13 were relied upon by Mr. Chandhiok.

22. It must be noticed that both in Mt. Rampati Kuer as well as Bhatu Sadu Mali case, the High Court, in revision, was dealing with the orders of the appellate court passed under section 476B of the Old Code which is equivalent to Section 341 of the New Code and not those passed under section 476 of the old code (now Section 340).

23. Similarly, reliance was placed on the judgment of a Single Judge in the case of Jose Kuruvinakunnel. In this case the Munsiffs court, in which the suit was being tried, an application under Section 340 of the New Code was also filed. The Munsiff's court dismissed both the suit as well as application under Section 340 of the New Code. The plaintiffs filed an appeal against the said judgment of the Munsiff's Court with the District Court and a revision in respect of the order dismissing the plaintiff's application under Section 340 of the New Code. Qua the said application a preliminary objection was taken that a revision under Section 115 of CPC would not lie. The learned Single Judge accepted this limb of the argument by holding that proceedings under Section 340 of the New Code though initiated before a civil or a revenue Court are essentially criminal in nature, and therefore, against an order passed under Section 340 or under Section 341 of the New Code, a revision petition under section 115 of the cpc, would not lie. The learned Single Judge dismissed the revision petition, on an additional ground, which was that, both the Munsiff's court and the appellate court in their wisdom had come to the conclusion based on the material placed before them that, it was not expedient in the interest of justice to initiate proceedings under Section 340 of the New Code and hence such findings could not be interfered with, by a court exercising revisionary jurisdiction.

23.1 The Single Judge inter alia relied upon the judgment of the Full Bench of the Patna High Court in Mt. Rampati Kuer.

24. In Sri Chand there is no real discussion on the issue that has been raised in the present matter, before us. There is, however, an observation made that proceedings under Section 340 of the New Code ‘being penal in nature’ the principles of natural justice ought to be applied and a show cause notice should be issued to the accused. This last aspect is, in our view, directly contrary to the judgment of the Supreme Court in the case of Pritish v. State of Mahrashtra. The learned Single Judge has placed a substantial reliance on the judgment of the Andhra Pradesh High Court in the case of Nimmakayala Audi Narravanamma v. State of Andhra Pradesh AIR 1970 AP 119. In this case the Andhra Pradesh High Court was dealing with the Old Code wherein, the court seems to have come to a conclusion that proceedings under section 476 of the old code, are criminal in nature.

25. The Gujarat High Court in the case of Abdul Karim Hazi Zaveri came to the view that the no appeal to the Division Bench would lie under Section 341 of the New Code against the order of the learned Single Judge passed in Section 340; since the words other than a High Court, had been introduced in Section 341 of the New Code. What is pertinent to note that at almost the end of the judgment the learned Judges while holding that an appeal would not lie to them under Section 341 of the New Code, also observed that no appeal would be maintainable under clause 15 of the Letters Patent against an order of a Single Judge of a High-Court, made in exercise of criminal jurisdiction. Clearly there was no detailed discussion on this aspect of the matter, that is, what is the nature of jurisdiction exercised.

26. This brings us to the Division Bench judgment of this court in the case of Ramesh Jaiswal. Briefly, in this case the appellant, (who was the original plaintiff in a suit for specific performance filed by him), was aggrieved by the fact that the Single Judge had dismissed his application filed against respondent no. 1, under Section 340 of the New Code. It is relevant to note, the appeal was preferred before the Division Bench under clause 10 of the Letters Patent, as applicable to this Court. The application under Section 340 of the New Code, came to be filed against respondent no. 1 for the reason that, while in the suit a written statement had been filed claiming that the suit property had been sold to another person, by execution of an agreement to sell, and registered General Power of Attorney in favour of a person; inquiries made by the appellant, with the office of the sub-Registrar, had revealed that no such document had been registered. The Single Judge, had, however, dismissed the application, on the ground that the application adverted to a property other than property qua which, the suit was filed. In the appeal, this aspect was questioned, as it was sought to be demonstrated that the Single Judge had erred, in view of the fact that, the property referred to in the application formed part of the agreement executed between the appellant and respondent no. 1 qua which specific performance was sought. In the appeal, respondent no. 1, raised a preliminary objection qua its maintainability, on the ground that no appeal under clause 10 of the Letters Patent, was available if the court concerned, was exercising criminal jurisdiction. The Division Bench agreed with this contention14.

26.1 The Division Bench agreed with the view taken by the Gujarat High Court in the case of Abdul Karim Hazi Zaveri and that of the Madras High Court in K.V Muniswamy Mudaliar v. Rajaratnam Pillai AIR 1922 Mad 495 (FB). The Division bench, however, disagreed with the view taken by the Division Bench of the Calcutta High Court in the case of Subir Kumar Ghosh.

26.2 We may only point out that, in K.V Muniswamy Mudaliar case, which was decided by the Madras High Court, really dealt with the issue as to whether sanction for proceedings was correctly granted. Briefly, this arose in the background of the following facts15: The petitioner, who occupied the shops of the respondents as a tenant, filed a suit for damages and stay of the ejectment proceedings. In the suit the petitioner set up an agreement to lease. It was the case of the petitioner/plaintiff that the lease was for a period of five years and a certain amount had actually been paid to the respondents. In so far as the amounts paid to the respondents were concerned, a reference was made to a particular entry made in the account book, in the affidavit of documents. The petitioner withdrew the suit when, it reached trial. After the suit terminated, an application was moved by the respondent for sanctioning prosecution in relation to the said extract from the account book. The Court in the course of proceedings, in which, sanction was sought directed production of the said document. It was against the sanction, that an appeal, was filed. Both Justices, Oldfield and Court's Trotter allowed the appeal and revoked the sanction. Briefly, their view was that it was not as if, the petitioner/plaintiff had produced the document and relied upon the same, the facts according to them, revealed that, it was the Judge who ordered the document to be produced, and then, based on a mistaken premise or otherwise that the document was a part of the suit proceedings, accorded sanction for prosecution. From the report of the case, as printed in AIR, it appears that the Advocate-General raised two issues as to the maintainability of the appeal. The first being that, an appeal under Letters Patent would not lie against the decision of the Single Judge as that decision was taken in exercise of criminal jurisdiction, and the second submission made was that, an appeal would lie under Letters Patent only against a judgment., the order sanctioning prosecution was not a judgment. Chief Justice Schwabe after noting the submissions made the following observations:

…On both these points there would be some conflict of authorities; but not having heard the other side on this point, we cannot give any decision upon that. But I think it right to say that my present view is, that the Advocate-General is right on both points that this is a matter in the exercise of criminal jurisdiction and that the order is not a judgment. The third point is that under Section 195 Cr.P.C apart altogether from the Letters patent, there is no right of appeal, the right of appeal being confined to what is given by that section..

26.3 As would be evident, the Full bench of the Madras High Court ultimately only ruled on the effect of section 195 of the old code and expressed no view as a court, on the submissions of the learned Advocate-General qua maintainability of the appeal under Letters Patent, the observations of Chief Justice Schwabe was thus only an obiter. This aspect does not seem to have been noticed by the Division Bench in Ramesh Jaiswal case. This issue, as a matter of fact, was dealt with by another Full Bench of the Madras High Court in E.P Kumaravel Nadar which followed the view taken by the Calcutta High Court in Har Parsad Das's case. The said Full Bench judgment of the Madras High Court, in fact, overruled the judgment of a Single Judge of its own court in the case of In re D'S. Raju Gupta.

27. We may also refer to a Full Bench judgment of this court in C'S. Agarwal. In this case, a Letters Patent appeal was filed by the appellant impugning the order passed in writ petition filed by him under Article 226 of the Constitution read with Section 482 of the New Code. The writ petition was filed for quashing a FIR lodged against the appellant and others by the Economic Offences Wing under various provisions of the IPC. An objection was taken, as to the maintainability of the LPA, on the ground that the order of the Single Judge was passed in exercise of criminal jurisdiction. The question, therefore, which arose for consideration before the Full Bench was: whether a writ petition filed for quashing of the FIR, should be treated, as one invoking criminal jurisdiction of the High Court (see paragraph 12 of the judgment). The Full Bench came to the conclusion that in ascertaining, whether or not a court, while exercising powers under Article 226 of the Constitution was in fact exercising criminal jurisdiction, would depend upon, the nature of the right violated and the nature of the relief sought in the petition. The Full Bench relied upon the observations of the Supreme Court in the case of S.A.L Naravan Row v. Ishwarlal Bhagwandas AIR 1965 SC 1818 where it was observed in the context of income tax proceedings that: A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property.. The Full Bench, however, disagreed with the view taken by the Andhra Pradesh High court in Gangaram Kandaram v. Sunder Chhkha Amin 2000 (2) ALT 448, which held that an appeal under Letters Patent, would lie, against an order passed in a petition under Article 226 quashing the FIR; as according to the learned Judges such an order was not passed in exercise of criminal jurisdiction16.

28. In our view, the crucial test therefore would be as to the nature of the proceedings when, a court takes a decision either to institute a complaint on an application filed under Section 340 of the New Code or, reject a request made, in that behalf. As noticed above, these proceedings can be filed before a court, which could be a Single Judge of this court exercising Civil, Criminal or any special jurisdiction. At this stage, the court forms an opinion as to whether it is expedient in the interest of justice whether or not an inquiry should be made qua offences which, apparently are alleged to have been committed. The court is entitled to hold a preliminary inquiry, though it is not mandatory.

28.1 It is also pertinent to note that, when a court forms such an opinion, it is not mandatory to make a complaint. It is only after the court forms an opinion whether after conducting a preliminary inquiry or not and comes to a conclusion that it is expedient that an inquiry should be made into the alleged offence that the court then, makes a complaint in writing to the Magistrate First Class. In case of the High Court, such person, as may be appointed for this purpose, may make the complaint, and in a case, other than the High Court, the court itself, i.e, the presiding officer, or such other officer that the court may authorize, in writing, in that behalf.

28.2 The inquiry that the Magistrate shall make, is a pre-trial inquiry which is covered under the provisions of Section 2(g) of the New Code, which takes within its fold every inquiry other than a trial conducted by the Magistrate or Court under the New Code. The Magistrate on receiving the complaint in line with the provisions of Section 343 of the New Code is required to proceed as far as possible (and to deal with the complaint) as if, it was instituted on a police report.

28.3 Ordinarily, a Magistrate can take cognizance of any offence under Section 190 of the New Code. However, in so far as prosecution for contempt of lawful authority of public servants or, qua offences under public justice and offences relating to documents given in evidence are concerned, by virtue of Section 195 of the New Code, a court cannot take cognizance except on a complaint received in writing by that court or officer of the court, who is authorized to file a complaint in that behalf, or by a superior court to which that court is subordinate.

28.4 Thus, upon receiving a complaint, the Magistrate will trigger the provisions under Sections 238 and 242 of the New Code, as the offences involved would bring the case within the purview of a warrant case [see Section 2(x) of the New Code].

29. Therefore, in our view, there are two stages to the proceedings; the first stage is the formation of opinion by the court as to whether or not it should proceed to institute a complaint for commencement of an inquiry by a Magistrate, qua the alleged offences. The second stage is, the commencement of the inquiry itself by the Magistrate, and the consequent steps, which may have to be taken thereof. The two stages are clearly distinct. The first stage, in our view, is not a stage at which a court exercises criminal jurisdiction. It is only at the second stage, that the court exercises criminal jurisdiction. Against the said formation of opinion, a statutory appeal is provided under Section 341 of the New Code, which appears to exclude the High Court from a statutory appeal, but that by itself, in our view, would not debar a party aggrieved by a decision taken either way, on an application filed under Section 340, to avail of a remedy outside the provisions of the New Code. The judgment of the Allahabad High Court in Mt. Rampati Kuer, and that of the Bombay High Court in Bhatu Sadu Mali were dealing with a situation where the courts were called upon to decide as to whether the order passed under Section 476B, which is pari materia with the provisions of section 341, was revisable under section 439 of the old code or under section 115 of the cpc. In our view, that situation would perhaps be somewhat different from a circumstance, where without taking recourse to the statutory appeal, one were to take recourse, to a remedy outside the Code, i.e, the Old/New Code. This was precisely the circumstance which arose before the Full Bench of the Calcutta High Court in Har Prasad Das's case, where what was sought to be revised was an order of the Settlement Officer passed under section 476 of the old code. The Full Bench of the Calcutta High Court, came to the conclusion that, if the order was passed by a Civil Court, on an application under Section 476, then it could be only revised under section 115 of the cpc and if it was otherwise, i.e, an order passed by a Criminal Court, it would be revisable under section 439 of the old code.

30. The above apart, as a matter of fact, in our view, both Section 476 B of the Old Code and Section 341 of the New Code when read with corresponding Section 195 clearly provide a statutory yardstick for determination of an appeal forum. Both under Section 476B of the Old Code and now under Section 341 of the New Code read with corresponding Section 195, a decision taken under Section 476 of the Old or under Section 340 of the New Code by a civil court would be amenable to an appeal before a civil appellate court. This to our minds is clearly indicative of the legislative intention, which is, that at this stage; neither the original court nor the appellate court is exercising criminal jurisdiction. We thus respectfully would disagree with view taken in those two judgments.

31. Before, we proceed further we may also refer to a Division Bench judgment of the Kerala High Court in V. Narayana Reddiar' case. This was a case, the appellant, who was a tenant and had carried out some alterations in the building in issue; was directed by the concerned municipal corporation, to demolish what according to it, was an unauthorized structure. The appellant approached the State Government against the order of the municipality. The State Government issued an order, whereby the appellant was directed to make an application before the local authority for regularization of the structure which, was threatened with demolition. The respondent, before the Court, filed a petition before the Single Judge that the agreement to lease, on which, the reliance was placed was a forged document. Consequently, an application under Section 340 of the New Code was moved, before the Single Judge of the High Court. The Single Judge directed the Registrar of the court to make a complaint. The said order was assailed before the Division Bench. A preliminary objection was taken by the respondent that, an appeal was not maintainable on the ground that under Section 341 of the New Code, the High Court stood excluded. The argument was that the legislature intended that, against the order of the Single Judge, no appeal would lie. The Division Bench, rejected this contention and, came to the conclusion that, merely because no appeal would lie under section 341 of the code, would not mean that if, there is another provision for an appeal from orders, passed under Section 340 of the Code, such provision would also stand excluded. The Division Bench relied upon Section 5 of the Kerala High Court Act to hold that, an appeal would lie. The Division Bench applied the principle set forth by the Supreme Court in the case of Vinita M. Khanolkar v. Pragna M. Pai, (1998) 1 SCC 500. Pertinently, the Division Bench of the Kerala High Court disagreed with the view of the Karnataka High Court in Chennapa v. Basappa (1984) 1 KLJ 204. The court also noticed the decision of the Full Bench of the Madras High Court in K.V Muniswamy Mudaliar v. Rajaratnam Pillai After a detailed discussion, the court made the following crucial observations:

……21. Learned counsel for the first respondent then contended that even though the matter arose in proceedings under Article 226 of the Constitution of India, the jurisdiction exercised by the learned single Judge is under Section 340 of the Code of Criminal Procedure. Hence, an appeal will not lie. We do not find any basis for this contention. According to us. merely because a provision under Section 340 of the Code of Criminal Procedure was being considered, the jurisdiction exercised by the Court cannot be said to be criminal jurisdiction. The offences cannot be tried without a complaint from the Court and before sending such complaint under Section 340 the Court has to be satisfied that a prima facie case has been made. It may arise in Criminal Court. Civil Court. Revenue Court or Tribunal. Merely because such proceedings are under Section 340 of the Code of Criminal Procedure, it cannot be said that what was being exercised is criminal jurisdiction. We are supported by the provisions under Section 341 of the Code of Criminal Procedure itself. According to Section 341 of the Code of Criminal Procedure, an order passed under Section 340 of the Code of Criminal Procedure by a Court other than a High Court, then an appeal lies to the Court to which ordinary appeal lies from such Court. Thus, if an order is passed under Section 340 of the Code of Criminal Procedure by a Munsiff s Court, appeal will lie to the District Court. But on the other hand, if such proceedings are taken before a Chief Judicial Magistrate, it lies to the Sessions Court. According to us. the proceedings are tainted with the colour of jurisdiction of the Court in which proceedings arise……

(emphasis supplied).

31.1 To be noted, the Division bench Judgment was carried in appeal to the Supreme Court. The Supreme Court dismissed the appeal, though we must point out that the discussion apparently before the Supreme Court was confined to whether the provisions of Section 195(1)(b)(ii) of the New Code, would be attracted to the facts of the case in view of the fact that the document in respect of which forgery was alleged was executed much before it was produced in court. The Supreme Court in this behalf applied the judgment of the Constitution Bench in the case of Iabal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 which, upheld the decision in the case of Sachida Nand Singh v. State of Bihar 1998 Crl L.J 1565. We respectfully agree with the view taken by the Kerala High Court in the case of V. Narayana Reddiar v. Rugmini Ammal and consequently differ with the view taken by the Gujarat High Court in Abdul Karim Haji Zaveri, decision of the Karnataka High Court in Chennapa v. Basappa, and also the view expressed by a Division Bench of this court, in Ramesh Jaiswal.

32. Having regard to the aforesaid discussion, one would have to consider as to whether in the facts of the present case, against the impugned order of the learned Single Judge passed under Section 340 of the New Code, an appeal would lie to the Division Bench. As is noticed above, the application under Section 340 of the New Code is filed in respect of the alleged forgery committed by respondent no. 1, in a proceeding concluded under section 20 of the 1940 act. The jurisdiction exercised by the Court, is not an ordinary original jurisdiction as provided under Section 5(2) of the 1966 Act.

32.1 There is a difference between original civil jurisdiction and ordinary or even extra ordinary original jurisdiction exercised by a High Court. This court exercises civil and criminal jurisdiction. This court would be exercising original civil jurisdiction when it entertains petitions for example: for grant of probate or even as in the instant case a petition under section 20 of the 1940 act or a petition and/or an application under the Arbitration and Conciliation Act, 1996. However, when an action in the nature of civil suit is filed, this court would be exercising ordinary original civil jurisdiction as provided for under Section 5(2) of the 1966 Act. [See In re: A. Kuppuswami Nayagar AIR 1938 Madras 779]. For the aforesaid reasons, an appeal shall not lie to the Division Bench under Section 10 of the 1966 Act. As noticed above, the present appeal has been filed under Section 10 of the 1966 Act.

32.2 It would be relevant to note in this context, that another Full Bench of this Court in the case of Jaswinder Singh Geetanjali Singh v. Mrigendra Pritam Vikramsingh Steiner 2013 (196) DLT 1 (FB), has taken the view that, since the Lahore High Court was a nonchartered High Court, it was not conferred with ordinary original civil jurisdiction as was the case with Letters Patents issued to the Chartered High Courts. This High Court having inherited the Letters Patent of the Lahore High Court would have the same attributes qua the width and scope of appeals under Letter Patent, as was available to the Lahore High Court. In this context, in Jaswinder Singh case the Full Bench made the following observations:

“…..30. In our view the issue of maintainability of an appeal under clause 10 of the Letters Patent as against Section 10(1) of the said Act is vitally connected with the nature of powers conferred under the Letters Patent to the Delhi High Court. The distinction between the Letters Patent of the Chartered High Courts and the Non-Chartered High Courts have, thus, been set out in detail aforesaid because there is a fundamental difference between the two Letters Patents. This fundamental difference arises from the jurisdictions being exercised by the then existing courts prior to the Letters Patent by which the Chartered and the Non-Chartered High Courts were established. The Chartered High Courts were preceded by the Supreme Courts established in the presidency towns. These Supreme Courts had both the original jurisdiction and the appellate jurisdiction qua the territory in question. Thus, when the Chartered High Courts were established there were two kinds of original jurisdiction which were transferred to it, i.e, one being exercised by the Supreme Court in presidency towns as well as one being exercised by the Sadar Courts in the Mofussil areas. This is also reflected in the Letters Patents qua the presidency towns where clauses 11 & 12 of the Letters Patent were included.

31. Insofar as the Non-Chartered High Courts like the Lahore High Court are concerned, there was absence of the aforesaid clauses of the Letters Patent on account of the fact that there were no prior Supreme Courts enjoying original jurisdiction but the similar system of Moffusil and Sadar Courts prevailed. Thus, the Letters Patent of the Chartered High Courts conferred only the appellate jurisdiction of the Sadar Courts and if original jurisdiction would have been conferred up to a pecuniary limit, such jurisdiction would have been created for the first time under the Letters Patent. This, however, did not arise as no such original jurisdiction was created. The similarity of clause 10 of the Non-Chartered High Courts vis-a-vis clause 15 of the Chartered High Courts would, thus, make no difference in view of the absence of existence of any original jurisdiction when the Letters Patent were established. Thus, when clause 10 of the Letters Patent refers to an appeal from the Single Judge to a Division Bench, it is not relatable to the exercise of ordinary original civil jurisdiction by the learned Single Judge of the Court. This is the reason that when writ jurisdictions are being exercised as extraordinary original civil jurisdiction, an appeal lies to the Division Bench under Clause 10 of the Letters Patent as applicable to Delhi which in turn had inherited the same from the parent Lahore High Court…..

(emphasis supplied)

32.3 Having regard to the above, under clause 10 of the Letters Patent, an appeal would lie from a judgment of the Single Judge to the Division Bench, except that which is passed in revisional jurisdiction, in exercise of power of superintendence, or in criminal jurisdiction. As discussed above, the formation of opinion under Section 340 of the New Code, is not in exercise of criminal jurisdiction. This is certainly not a case where the Single Judge exercised its power of superintendence qua a judgment passed in exercise of appellate jurisdiction in respect of decree or order passed by a court exercising appellate jurisdiction. This case is also not a case where, the learned Single Judge exercised revisional jurisdiction. Therefore, in our view, an appeal would lie to the Division Bench under the Letters Patent. That the formation of an opinion is a judgment, in our view, is discernible from the principles laid down by the Supreme Court in Shah Babulal Khimji v. Javaben D. Kania, (1981) 4 SCC 8. In our view, a decision either way on an application filed under Section 340 of the New Code decides valuable rights of parties and, therefore, an appeal would lie under clause 10 of the Letters Patent, as applicable to this Court.

33. To sum up: (i). the expression other than the High Court., appearing in Section 341 of the New Code would not disable an aggrieved party to prefer an appeal, if it is otherwise maintainable, under other statutes and provisions in law; and (ii) the decision taken on an application under Section 340 of the New Code, involves only a formation of an opinion as to whether or not a complaint should be filed. At the stage of formation of such an opinion, the court does not exercise criminal jurisdiction. Therefore, an appeal under Letters Patent would be available to the aggrieved party in this case.

34. The reference is answered accordingly. List the appeal before the roster Bench for being heard on merits, on 26.07.2013