Bholanath Balbhadra Sahai v. Achheram Puran Kurmi

1. The applicant Bholanath was the plaintiff in a suit brought to recover money said to be due on a bond. The other applicants Baliram and Shamta Prasad gave evidence on his behalf as attesting witnesses. The learned Subordinate Judge held that the bond was not proved and dismissed the suit. An application was made to him under Section 476 of the Cr PC, to order the prosecution of these three persons for forgery and perjury, but he refused as he considered the evidence not strong enough. An appeal was made to the learned Additional District Judge, who after obtaining the opinion of a handwriting expert on the bond and further examining the scribe of the bond, held that there was a prima facie case against the three persons and ordered their prosecution. They have now come up in revision, and this order will dispose of all three applications.

2. The main point taken before me is that the learned Additional District Judge had no power to take further evidence. That view is supported by the decision in 51 Mad 603,1 which was approved in 53 Mad 688.2 That view is that Section 476-B of the Cr PC, which provides for an appeal is a self-contained section giving no right to take additional evidence, and that S. 428 of the Code, which empowers an appellate Court to take additional evidence, applies only to appeals under Ch. 31 of the Code. Most, if not all, of the High Courts in India, except Lahore, have held that revisional proceedings against an order under Section 476 of the Cr PC, are civil proceedings under Section 115 of the CPC, and this was the view taken by the Judicial Commissioner's Court in 16 NLR 23.3 Most of the cases will be found cited in 13 Lah 342,4 and the main reason, I gather, why the Lahore High Court held that revisional proceedings in such cases are criminal proceedings was that it had been the practice of the Lahore High Court so to regard them for many years.

3. The Lahore High Court, however, held that an appellate Court, to which an appeal lies under Section 476-B of the Cr PC, may itself make an enquiry if it considers that the enquiry made by the trial Court is defective. If revisional proceedings in this Court are civil proceedings, and if the appeal lies to a civil Court, it seems to me to follow that the appellate proceedings are necessarily civil and not criminal. I respectfully agree with the remarks of the Calcutta High Court in 53 Cal 8275:

4. Therefore it would follow that, although the appeal itself is one which is allowed by the Code of Criminal Procedure, the appeal must be heard by the District Judge to whom the Munsif is subordinate, i.e by an appellate Court exercising civil appellate jurisdiction. It follows, therefore, that the procedure governing an appeal of this description is one which is to be sought for within the four corners of the Code of Civil Procedure.

5. The additional District Judge therefore had powers conferred on him by O. 41 of the CPC, and under R. 27 of that order he was entitled to take further evidence if he required that evidence in order to enable him to decide the case. The learned counsel for the respondent in this Court has not relied on the opinion of the hand, writing expert who was not examined as a witness, but he contends that there is sufficient evidence on the record, apart from the expert's opinion, to justify the appellate Court's order. I agree that a prima facie case has been made out, and this has not seriously been contested. The only other point taken is that there was undue delay in making the application under Section 476 of the Cr PC. The suit was dismissed on 6th August 1934 and the application was made on 13th October 1934. No time limit is prescribed by the Code of Criminal Procedure, and I do not consider that the delay has been so great that the application ought to be dismissed on that ground alone. It was not unnatural that the defendants should wait to see if the plaintiff intended to file an appeal. The applications for revision are therefore dismissed with costs. Counsel's fee Rs. 30. There will be no separate order for costs in the other two applications.

S.C/D.S

6. Applications dismissed.