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Rajani Kanta Kayal And Others v. Bistoomoni Dassi

Calcutta High Court

Mar 21, 1927

Judgment

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Factual and Procedural Background

The dispute arose from competing applications relating to the guardianship of two minors. The third appellant, Surendra Nath Haldar, produced an authority purportedly given by the father appointing him guardian after the father’s death and sought appointment as guardian. The mother of the minors, the respondent Bistoomoni Dassi, applied to have Surendra’s guardianship certificate revoked. An award compromising the matter on certain terms was filed on behalf of Surendra; Bistoomoni objected and the whole matter was tried.

By judgment dated 8 May 1926 the then Second Additional District Judge, Mr. G.N. Roy, held that the authority conferring guardianship and the award were false, revoked Surendra’s certificate of guardianship and appointed Bistoomoni as guardian. An appeal from that judgment (M.A. No. 312 of 1926) was then preferred to the High Court and remained pending.

On 1 September 1926 Bistoomoni filed an application before Mr. Jameson (who had succeeded Mr. G.N. Roy) seeking that a complaint be lodged under s. 476, Criminal Procedure Code, against several persons under various sections of the Indian Penal Code. Mr. Jameson wrote on the margin of the application: “write to Additional District Magistrate about the matter and ask him to proceed under s. 496 (476?), Criminal Procedure Code.” That order was passed ex parte. The papers were sent to the Additional District Magistrate of Alipore and summonses (except against one appellant) were served on 20 October 1926. The appeal to the High Court in the present proceeding was presented on 6 January 1927 and placed before the Court and admitted; the opinion also records that the appellants submitted that their appeal had been presented on 5 January 1927 and were challenged as time-barred.

A preliminary objection was taken on limitation grounds; the Court considered whether the order of 1 September 1926 constituted a valid order under s. 476, CrPC (i.e., a complaint within the meaning of the CrPC) upon which criminal proceedings could properly be founded, and whether the criminal proceedings taken on the basis of that order should be sustained or quashed.

Legal Issues Presented

Whether the appeals filed under s. 476-B, Criminal Procedure Code, were time-barred under the Limitation Act (in particular whether Art. 155 or Art. 156 applied).
Whether the marginal order written by Mr. Jameson on 1 September 1926 constituted a valid complaint under s. 476, Criminal Procedure Code, i.e., whether it satisfied the statutory requirements for a complaint by a civil court to a Magistrate.
Whether the criminal proceedings that were initiated by the Magistrate on the basis of the letter/order from Mr. Jameson should be quashed/discharged for non-compliance with s. 476, CrPC.
Whether the High Court should admit and hear appeals notwithstanding apparent limitation objections, and what bearing the pendency of a related civil appeal has on the exercise of the criminal-complaint jurisdiction.

Arguments of the Parties

Appellants' Arguments

The appellants contended that they were entitled to 90 days from the date of the order under Art. 156, Limitation Act, rather than the shorter period urged by the Crown.
They argued that the appeal was from the order of a Civil Court and should therefore be considered as an appeal in a civil case (which would affect the period for filing).

Crown's (and District Representative's) Arguments

The Crown (represented by Mr. Roy Choudhary) took a preliminary objection that the appeals of at least the first four appellants were filed out of time and barred under Art. 155, Limitation Act, because they were not presented within 60 days of the order appealed against.
The Crown and the respondent’s counsel (Mr. Pakrashi) argued that the marginal order by Mr. Jameson should be construed together with the petition on which it was written and thus treated as a complaint under s. 476, CrPC.

Respondent (Bistoomoni Dassi) — Represented Position

The respondent had applied for a complaint under s. 476, CrPC, setting out facts and praying for prosecution under several IPC sections; the respondent relied on the order written by Mr. Jameson as giving effect to that prayer and as the basis for criminal proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandra Kumar Sen v. Mathuriya Debya	Held that an appeal under s. 476-B must be presented within the time prescribed by the Limitation Act applicable to the kind of appeal (the case involved an appeal to a Court subordinate to a High Court and Art. 154 was applied).	The Court relied on this authority to state that an appeal under s. 476-B to the High Court must similarly be presented within the period prescribed by the Limitation Act, the governing Article in that instance being Art. 155.
Hamid Ali v. Madhusudan Das Sarkar	Demonstrated a difference of opinion on classification of an appeal under s. 476-B: one view treating it as an ordinary criminal appeal under the Criminal Procedure Code, another treating it as a Miscellaneous Civil Appeal regulated by Order XLI, CPC.	The Court relied on this divided authority to justify leniency in admitting the apparently late appeals, since the conflicting judicial views might reasonably have led appellants to believe they had 90 days.

Court's Reasoning and Analysis

The Court proceeded in two analytical strands: (A) the time-bar/limitation objection to the appeals, and (B) the legal sufficiency of the order of 1 September 1926 as a complaint under s. 476, CrPC.

(A) Limitation and admission of appeal

The Crown urged that the appeals (at least of the first four appellants) were time-barred under Art. 155, Limitation Act (60 days). The appellants claimed entitlement to 90 days under Art. 156 and argued the appeal should be treated as a civil appeal.
The Court observed that the right to appeal arises under the Criminal Procedure Code and that Chandra Kumar Sen v. Mathuriya Debya supports applying the Limitation Act article appropriate to criminal appeals (here Art. 155) to appeals under s. 476-B. On that basis the appeals of the first four appellants appeared to be time-barred.
However, the Court also noted that the appeal had been admitted by two learned Judges (Cuming and Gregory, JJ.) and that the petition set out facts relied upon for an extension of time. The Court further relied on the conflicting authority in Hamid Ali v. Madhusudan Das Sarkar (showing a reasonable basis for the appellants to think their appeal might be civil in nature and thus attract a longer period). For these reasons the Court exercised its discretion to hear the appeals of the first four appellants.
The appeal of Kishore Mohan was clearly within time (summons issued 6 December 1926 and served 18 December 1926), and that fact also influenced the Court to admit the other appeals.

(B) Validity of the 1 September 1926 order as a s. 476 complaint

The Court set out the statutory requirements of s. 476, CrPC: when a Civil Court considers it expedient in the interest of justice that an inquiry be made into particular offences connected to proceedings in that Court, it must record a finding to that effect and make a written complaint signed by the presiding officer, forwarding it to a Magistrate.
The Court contrasted those requirements with the actual order made by Mr. Jameson, which was limited to the marginal direction “write to Additional District Magistrate about the matter and ask him to proceed under s. 496 (476?), Criminal Procedure Code.” The Court observed this appeared to be an office direction and not a recorded judicial finding or a written complaint signed by the presiding judge in the terms required by s. 476.
Although the Crown and respondent argued the marginal order could be construed with the petition, the Court found that even reading the order together with the petition did not produce a document that satisfied the statutory form and substance of a complaint under s. 476. Consequently, the order was not a valid complaint within the meaning of the CrPC.
The Magistrate’s subsequent treatment of the marginal note as a complaint and issuance of summons therefore rested on an instrument that did not comply with the statutory prerequisites. The Court held it was not necessary to set aside purely administrative directions given to the office, but if the marginal order were regarded as an order under s. 476 it must be discharged.
The Court additionally criticized the procedure followed: an ex parte application under s. 476 before a judge who had not tried the underlying revocation matter meant that the judge had not applied his mind to who committed what offence; the judge should have issued notices and heard parties. The Court also noted that a pending appeal to the High Court should have counselled caution before issuing criminal process.
Cammiade, J., in concurrence, emphasized that a judge intending to make a complaint must examine the facts and specify what offences were committed by which persons; Mr. Jameson had not done so. He also pointed out a separate substantive error in the petition: a prayer for prosecution under s. 463 (which defines forgery) was incorrect because the punishment is prescribed by s. 465, and summons were in fact issued under s. 463—an error likely to cause practical difficulties.

Holding and Implications

HOLDING: The High Court allowed the appeal. The Court held that the order of Mr. Jameson dated 1 September 1926 did not constitute a valid complaint under s. 476, Criminal Procedure Code, and that, if treated as such, it must be discharged/quashed.

Implications and immediate effects:

The criminal proceedings commenced by the Magistrate on the basis of the marginal order (treated as a complaint) are founded on an instrument that does not comply with s. 476, CrPC, and therefore cannot stand; the complaint is to be discharged/quashed to that extent.
The Court observed it would have been better practice for the Judge to issue notices and hear the parties before making any complaint; the judge who did not hear the trial should not have made the ex parte direction that prompted criminal process.
The respondent remains free to apply for a fresh order under s. 476, CrPC; the Court indicated that, considering the pending civil appeal to the High Court, prudence suggests waiting for the result of that appeal before prosecuting further under s. 476.
The opinion identifies a procedural error in the petition (use of s. 463 instead of s. 465) and warns that summons issued under the incorrect section may lead to practical difficulties; this is a matter to be corrected in any future proceedings.

This summary is confined to the matters and language expressly contained in the provided opinion. No additional facts or inferences beyond the text have been added.

Show all summary ...

Suhrawardy, J.:— This is an appeal under S. 476B, Criminal Procedure Code, against an order of the Second Additional District Judge of 24-Parganas complaining or purporting to complain under s. 476 against the appellants recommending their prosecution under various sections of the Indian Penal Code. The facts are that an application for the appointment as guardian of two minors was made by the third appellant Surendra Nath Haldar under an authority purported to have been given by the father of the children appointing Surendra Haldar as the guardian of the minors after the father's death. Subsequently the mother of the minors (the respondent Bistoomoni Dassi) applied to have the order appointing Surendra as the guardian of the minors revoked. In the course of these proceedings an award was filed on behalf of Surendra compromising the case on certain terms. This award was objected to by Bistoomoni and the whole case was then tried by the then Second Additional District Judge, Mr. G.N Roy, who by his judgment dated the 8th May, 1926, held that the authority conferring the guardianship and the award were both false documents; and the learned Judge revoked Surendra's certificate of guardianship and appointed Bistoomoni guardian of the minors.

2. Against this order an appeal has been preferred to this Court (being M.A No. 312 of 1926) and this appeal is pending. On the 1st September, 1926, and application was made by the respondent Bistoomoni before Mr. Jameson who succeeded Mr. G.N Roy as the Second Additional District Judge for an order under s. 476, Criminal Procedure Code, complain ing against the appellants under several sections of the Indian Penal Code mentioned therein. On that application an order was passed by Mr. Jameson (to which I will refer later) on the same day, namely, the 1st September, 1926. This order was passed ex parte. The papers were sent to the Additional District Magistrate of Alipore and summonses were issued against all the appellants, excepting the appellant Hisbore Gayen, which were served upon them on the 20tb October, 1926. The appeal to this Court was presented on the 6th January, 1927, when it was placed be fore the Court and admitted. Mr. Roy Choudhary who represents the Crown has taken a preliminary objection on the ground that the appeal, at any rate of the first four appellants, was tiled out of time and is, therefore, barred under Art. 155, Limitation Act, not having been presented within 60 days of the order appealed against. The appellants are not entitled to any allowance for the time occupied in taking the necessary copies as appears from the dates mentioned on the back of the copy; but it is argued on their behalf that they are entitled under Art. 156, Limitation Act, to 90 days from the date of the order. This contention of the appellants is clearly wrong. The appellants having come to know of the ex parte order passed against them on the 20th October last, the appeal presented by them on the 5th January; 1927, is on the face of it time-barred. The appellants argue that this is an appeal from the order of a Civil Court and should, therefore, be considered as an appeal in a civil case. This view is erroneous inasmuch as the right to appeal is given by the Criminal Procedure Code against an order passed under that Code. In Chandra Kumar Sen v. Mathuriya Debya(1) it was held that an appeal under s. 476-B, must be presented within the time prescribed by Art. 154, Limitation Act—the appeal in that case being to a Court subordinate to a High Court. The same rule of law will apply to an appeal preferred under s. 476-B against an order of the lower Court to the High Court, the governing Article being Art. 155, Limitation Act. In this view the appeal of the first four appellants must, therefore, be held to be time-barred. But there is another circumstance which we cannot lose sight of. The appeal was admitted by our learned brothers Cuming and Gregory. JJ. The facts on which the appellants rely for an extension of time, if the appeal was held to be out of time, are mentioned in the petition. We are not in a position to say that these facts were not brought to the notice of the learned Judges who admitted the appeal and they might have thought that it was a proper case for concession in favour of the appellants. This view gains some strength from the decision of this Court in the case of Hamid Ali v. Madhusudan Das Sarkar(2). There Chotzner, J., was of opinion that an appeal under s. 476-B, Criminal Procedure Code, must be treated as an ordinary appeal under the Criminal Procedure Code. But Duval, J., was of opinion that such an appeal must be treated as a Miscellaneous Civil Appeal and regulated by O. XLI, Code of Civil Procedure. This difference of opinion between two learned Judges may afford a reasonable ground for the appellants to suppose that the appeal was a civil appeal and they had 90 days' time from the date of the order to prefer an appeal to this Court. In this view we propose to hear the appeal of the first four appellants.

3. As regards the appeal by Kishore Mohan there is no doubt that it is within time. The order for the issue of summons against him was passed on the 6th December, 1926, and it was actually served upon him on the 18th December, 1926. The fact that Kishore's appeal is in time and that we have to hear it has induced us to a certain extent to admit the appeal of the other four appellants.

4. Now, to come to the real question in the case, namely, whether there was a proper order under s. 476, Criminal Procedure Code, upon which action could be taken by the Criminal Court. The opposite party Bistoomoni Dassi filed an application on the 1st September, stating all the circumstances of the case and prayed ‘Your Honour may be graciously pleased to lodge a complaint with the Magistrate for trial of the opposite parties Nos. 1, 2, 3, 4 and 6 under s. 463, Indian Penal Code, and s. 193, Indian Penal Code, and of the opposite party No. 1 under ss. 463, 471, 193 and 196, Indian Penal Code and of the opposite party No. 5 under s. 193, Indian Penal Code.” On the margin of this application the order written by the learned Judge Mr. Jameson is “write to Additional District Magistrate about the matter and ask him to proceed under s. 496 (476?), Criminal Procedure Code.” It is not apparent what further proceedings were taken in this matter but it appears from the Magistrate's record that in all probability this application with the order thereon was sent to the Magistrate because there is a letter dated the 16th November, 1926, from Mr. Jameson to the District Magistrate in which it is stated that no preliminary inquiry as was asked for by the Magistrate was necessary as prima facie the case has been made out in the judgment of his predecessor. On receipt of this letter the Additional District Magistrate passed the following order: “The Order of the Additional District Judge on the margin is treated as a complaint and cognizance taken. I have made over to Sub-Divisional Officer. Diamond Harbour for disposal.” This shows that the order written by Mr. Jameson on the margin of the application of the opposite party was treated as a complaint upon which criminal proceedings were started under s. 476, Criminal Procedure Code. Section 476, so far as it is relevant for our present purpose runs like this: When any Civil Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in s. 196, etc., etc., which appears to have been committed in or in relation to a proceeding in that Court, such Court may record a finding to that effect, and make a complaint thereof in writing signed by the presiding officer of the Court and shall forward the same to a Magistrate, etc. The section therefore, requites that the Court has himself to find that in the interest of justice an inquiry should be made; as also that he should record a finding to the effect that such enquiry should be made into any offence committed in relation to a proceeding in that Court. The Court has further to make a complaint thereof in writing signed by the presiding officer of the Court. Complaint’ has been defined in s. 4, Criminal Procedure Code, is ‘An allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code that some person, whether known or unknown, has committed an offence “The section, therefore, requires that the Court should record a finding that in the circumstances of the case before it an inquiry into the offences mentioned should be made and that he should make a complaint in those terms in writing signed by him. In the present case the only order was write to Additional District Magistrate about the matter.’ This order was presumably passed upon the office and was not in any way a recommendation or a complaint to the Criminal Court to take action in the matter. It is not, therefore, an order passed under s. 476. Criminal Procedure Code, nor a complaint within the meaning of the Criminal Procedure Code. But it has been argued on behalf of the Crown as well as by Mr. Pakrashi who appears for Bistoomoni Dassi that the order must be construed with reference to the petition upon which it was passed. Though I am not sure that it would be correct, for a Court, to refer to a petition in passing an order like this according to the terms of s. 476: but conceding that it can be read along with the petition I do not find that there is any order which can be said to be a complaint to the Criminal Court. I am accordingly of opinion that the order upon which the proceedings have been started in the Criminal Court is not an order under s. 476, Criminal Procedure Code. It is not necessary in this view to set aside the order passed by Mr. Jameson on the 1st September, 1926, in so far as it directs the office to take certain steps. But if it is regarded as an order under s. 676, it must, in my opinion, be discharged.

5. I should like to add that in the circumstances of this case when an application was made under s. 476, Criminal Procedure Code, before a Judge who had not heard the case, it would have been a better exercise of discretion to issue notice upon the opposite-parties and pass proper orders after hearing them. In the present case the opposite-party had already filed an appeal to this Court against the order of Mr. G.N Kay. If this fact was brought to the notice of Mr. Jameson, it was possible that he might have stayed his hands till the disposal of the appeal.

6. It is still open to the respondent opposite party to apply for a fresh order under s. 476, Criminal Procedure Code, in which case the learned Judge will, no doubt, act according to law. But considering that an appeal is pending in this Court, in my opinion, the proper course is to wait for the result of the appeal.

7. In this view. I will allow the appeal.

Cammiade, J.:— I agree with what has fallen from my learned brother and with the order which he proposes to pass I wish to add that in a case such as the present it was necessary for the Judge, who intended to make a complaint to look into the facts of the case and to decide what offences had been committed by what particular person. Mr. Jameson did not try the case for revocation and he was not aware of the facts. The judgment which was delivered by his predecessor does not contain anything from which it can be ascertained that particular persons had taken part in the commission of any particular offence. The law requires that when certain classes of offences are committed, no Court should take cognizance of such offences unless the Court before whom or the relation to the proceeding before which such offences have been committed moves for this purpose and removes the legal bar to the prosecution. There is nothing on the record to show that Mr. Jameson applied his mind to this matter or decided what offences had been committed or who had committed them; and, therefore, it must be taken that the second letter written by him to the Magistrate cannot by any stretch of language amount to a complaint. In my opinion, that complaint, if it is treated as one, should be quashed because it is not in compliance with law. I would further point out that in the petition that was filed by Bistoomoni there is a prayer for the prosecution of the accused persons (appellants before us) on charges under s. 463. No offence is punishable under that section for s. 463, defines forgery. The offence is punishable under s. 465. I find from the record that the Magistrate has issued summons under s. 463, Indian Penal Code. This would lead to trouble later on. In all these circumstances I agree with the order which my learned brother has passed.

8. Appeal allowed.