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CASE NO.: Appeal (crl.)  1136 of 2006

PETITIONER: State of A.P.

RESPONDENT: V. Sarma Rao & Ors. Etc. Etc.

DATE OF JUDGMENT: 10/11/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) Nos.2181-2211 of 2004)

S.B. Sinha, J.

       Leave granted.

       Interpretation of the provisions of Section 340 of the Criminal  Procedure Code is in question in this appeal which arises out of a judgment  and order dated 27.9.2002 passed by a Division Bench of the Andhra  Pradesh High Court, whereby and whereunder a complaint petition filed by  the District & Sessions Judge, Vishakhapatnam in terms thereof was  quashed.   

       The basic fact of the matter is not in dispute.  Lands situated in  Pisinikada village in the district of Vishakhapatnam were acquired by the  State of Andhra Pradesh for providing house-sites to the weaker sections of  society.  Awards in respect of the said acquisition were made by the Land  Acquisition Collector.  Reference thereagainst was made to the Civil Court  at the instance of the owners of the land.  A large scale fraud, allegedly, took  place in awarding compensation wherein the Sub-ordinate Judge,  Anakapalle, his staff, the advocates of the claimants, the advocates  appearing on behalf of the State and other officials were said to be involved.   Upon obtaining requisite permission from the High Court, the CBCID  registered a case and investigation thereinto was carried on.  In its report  dated 4.5.1998, the Additional Director General of Police, CID, Hyderabad  indicated about a large scale conspiracy and fraud committed by the accused  persons.  Allegations made as against the accused came within the purview  of the offences specified under Section 195 of  the Criminal Procedure Code  as a result thereof an inquiry under Section 340 thereof was imperative.  The  High Court got the matter examined by a Special Committee.  It was opined  that an inquiry may be conducted by District Judge, Vishakhapatnam.  The  report of the said Committee having been approved by the Full Court of the  High Court, an inquiry was made by the District Judge, Vishakhapatnam.    The learned District Judge examined a large number of witnesses and  ultimately filed a complaint on 1.5.1999, pursuant to the findings recorded  therein.  An appeal came to be filed thereagainst by respondents herein  before the High Court, which was marked as Criminal Appeal No.587 of  2000.  A learned Single Judge of the High Court, in view of the importance  of the question involved, referred the matter to a Division Bench by an order  dated 31.10.2000.

       A Division Bench of the High Court, by reason of the impugned  judgment, allowed the appeal holding that the inquiry conducted by the  District Judge was impermissible in law.  It was directed :                  "In the light of what has been stated herein above,

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we set aside the order passed by the District Judge, but in  the facts and circumstances of the case direct the  Registrar to place the matter before the Hon’ble Chief  Justice who may place the matter before an appropriate  Bench for orders under Section 340 Cr.P.C.  Dicidedly  the Court under Land Acquisition Act is a Court  subordinate to the High Court as all appeals lie to the  High Court.  We would have ordered an enquiry under  Section 340 Cr.P.C. by the Sub-Judge himself but as the  matter had earlier been considered by two Judges of this  Court though administratively and the report of such  committee had been approved by the Full court,  therefore, we direct that the matter be heard and decided  by the High Court reminding ourselves with the old  maxim that justice must not only be done but also seen to  have been done."         

       The State is, thus, in appeal before us.

       Mr. Anup G. Choudhary, learned Senior Counsel appearing on behalf  of the appellant submitted that the High Court committed a manifest error in  passing the impugned judgment in so far as it failed to take into  consideration that Section 340 of the Criminal Procedure Code read with  Section 195 thereof specifies the Courts being Civil, Criminal or Revenue,  which are genus and, as the Land Acquisition Judge is governed by the  provisions of the Code of Civil Procedure in terms of Section 53 of the Land  Acquisition Act, 1898, (for short, ’the Act’), thus, being subordinate to the  District Judge, the statutory requirements in relation to filing of Complaint  Petition in terms of Section 340 of the Criminal Procedure Code stood  fulfilled.  The Constitution Bench decision of this Court in Kuldip Singh vs.  State of Punjab & Anr. [1956 SCR 125], Mr. Choudhary would submit,  has wrongly been applied by the High Court in so far  as it failed to notice  the effect and purport of the term "ordinarily" in its proper perspective.               Mr. Annam D.N. Rao, learned counsel appearing on behalf of the  respondents, on the other hand, urged that the Land Acquisition Judge being  not a Court subordinate to the District Judge, the Complaint Petition at the  instance of the latter was not maintainable.  

       Before we embark upon the issues raised before us, we may notice the  relevant statutory provisions.   

       Land Acquisition Act was enacted to amend the law for the  acquisition of land needed for public purposes and for Companies and for  determining the amount of compensation to be made on account of such  acquisition.  It is a complete Code by itself.  It defines "Court" to mean a  Principal Civil Court of original jurisdiction, unless the Appropriate  Government has appointed (as it is hereby empowered to do) a special  judicial Officer within any specified local limits to perform the functions of  the Court under the Act.

       An Award is made under the Act by the Collector.   Only when an  awardee is dissatisfied with the Award, he may file an application before the  Collector, in terms of Section 18 of the Act, whereupon a reference may be  made to a court.  Section 26 of the act reads as under : "26. Form of awards.--(1) Every award under this  Part shall be in writing signed by the Judge, and shall  specify the amount awarded under clause first of sub- section (1) of section 23, and also the amounts (if any)  respectively awarded under each of the other clauses of  the same sub-section, together with the grounds of  awarding each of the said amounts.  (2) Every such award shall be deemed to be a  decree and the statement of the grounds of every such

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award a judgment within the meaning of section 2, clause  (2) and section 2, clause (9), respectively, of the Code of  Civil Procedure, 1908."                  The Court, to which reference is made, is ordinarily a Principal Civil  Court of original jurisdiction which would mean the District Judge.   However, a forum may be created for reference of such disputes before a  Special Judicial Officer within a specified local limit to perform the  functions of the Court under the Act.   

       The Officer of the Court is, indisputably, a Judicial Officer.  Despite  applicability of the provisions of the Code of Civil Procedure (C.P.C.) in  relation to the proceedings pending before it, its substantive part is not  applicable.  A right of appeal is provided for under Section 96 of the  Criminal Procedure Code.  Such appeals are to be filed before the Forums  laid down under the Civil Procedure Code or the courts governed by the  statute.  However, no appeal from a judgment of the Land Acquisition Judge  can be filed before the principal court of civil jurisdiction or in other words,  the District Judge of the district, as such appeals lie only before the High  Court.  No appeal ex facie or filed against the order passed by the reference  court is maintainable before the District Judge.

       Section 195 of the Criminal Procedure Code provides for prosecution  for contempt of lawful authority of public servants, for offences against  public justice and for offences relating to documents given in evidence.  The  relevant provisions of Section 195 read as under :

       "195. Prosecution for contempt of lawful  authority of public servants, for offences against  public justice and for offences relating to documents  given in evidence.\027(1) No Court shall take cognizance\027  

(a)    (i)  of any offence punishable under sections 172 to              188 (both inclusive) of the Indian Penal Code (45              of 1860), or  

       (ii) of  any  abetment  of, attempt  to  commit, such                       offence, or   

       (iii) of  any  criminal  conspiracy  to  commit,  such                offence,  

      except on the complaint in writing of the public  servant concerned or of some other public servant to  whom he is administratively subordinate;  (b)  (i)  of any offence punishable under any of the following  section of the Indian Penal Code (45 of 1860), namely,  sections 193 to 196 (both inclusive), 199, 200, 205 to 211  (both inclusive) and 228, when such offence is alleged to  have been committed in, or in relation to, any proceeding  in any Court, or         (ii)  of any offence described in section 463, or  punishable under section 471, section 475 or section 476, of  the said Code, when such offence is alleged to have been  committed in respect of a document produced or given in  evidence in a proceeding in any Court, or        (iii)  of any criminal conspiracy to commit, or  attempt to commit, or the abetment of, any offence  specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by  such officer of the Court as that Court may authorise in  writing in this behalf, or of some other Court to which  that Court is subordinate.

(2)     ..........................

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       (3)  In clause (b) of sub-section (1), the term  "Court" means a Civil, Revenue or Criminal Court, and  includes a tribunal constituted by or under a Central,  Provincial or State Act if declared by that Act to be a Court  for the purposes of this section.

       (4)     For the purposes of clause (b) of sub-section  (1), a Court shall be deemed to be subordinate to the  Court to which appeals ordinarily lie from 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 whose local jurisdiction such Civil Court  is situate:  Provided that\027 (a)  where appeals lie to more than one Court, the  Appellate Court of inferior jurisdiction shall be the Court  to which such Court shall be deemed to be subordinate; (b) where appeals lie to a civil and also to a  Revenue Court, such Court shall be deemed to be  subordinate to the Civil or Revenue Court according to the  nature of the case or proceeding in connection with which  the offence is alleged to have been committed."

Section 340 of the Criminal Procedure Code reads as under :

"340. Procedure in cases mentioned in section  195.\027 (1) When upon an application made to it in this  behalf or otherwise any 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 clause (b) of sub-section  (1) of section 195, which appears to have been 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, such Court may, after  such preliminary inquiry, if any, as it thinks necessary,\027 (a)      record a finding to that effect; (b)      make a complaint thereof in writing; (c)      send it to a Magistrate of the first class having  jurisdiction; (d)      take sufficient security for the appearance for  the accused before such Magistrate, or if the  alleged offence is non-bailable and the Court  thinks it necessary so to do send the accused in  custody to such Magistrate; and (e)      bind over any person to appear and give  evidence before such Magistrate.  (2) The power conferred on a Court by sub-section  (1) in respect of an offence may, in any case where that  Court has neither made a complaint under sub-section (1) in  respect of that offence nor rejected an application for the  making of such complaint, be exercised by the Court to  which such former Court is subordinate within the meaning  of sub-section (4) of section 195. (3) A complaint made under this section shall be  signed,\027 (a)     where the Court making the complaint is a High  Court, by such officer of the Court as the Court  may appoint; (b) in any other case, by the presiding officer of the  Court or by such officer of the Court as the Court  may authorise in writing in this behalf. (4) In this section, "Court" has the same meaning as  in section 195."

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In terms of a notification issued by the State, a reference was to be made  to a subordinate Judge.   "Would the said Court be the subordinate to the Court  of District Judge?" is the core question. In our opinion, it would not be.  A Court of Subordinate Judge may be  subordinate to District Judge for administrative purpose.  He may be a court  subordinate to it under the Code of Civil Procedure.  But in relation to a  proceeding under the Land Acquisition Act, it would not be.  We have noticed  that in terms of Section 53 of the Land Acquisition Act, the procedures laid  down under the Civil Procedure Code would apply but the same is subject to the  exceptions specified therein, viz., save in so far as they may be inconsistent with  anything contained therein.   Land Acquisition Act is a special statute.  It  provides for the forums both original and appellate.  Section 2(4) of the Code of  Civil Procedure, 1908 defines "district" to mean the local limits of the  jurisdiction of a principal Civil Court of original jurisdiction, also known as  District Court.  It also includes local limits of the ordinary original civil  jurisdiction of a High Court.  Section 3 thereof provides hierarchy of the courts  in the following terms :    "3. Subordination of Courts.\026  For the purposes of  this Code, the District Court is subordinate to the High  Court, and every Civil Court of a grade inferior to that of a  District court and every Court of Small Causes is  subordinate to the High Court and District Court."  

What is of significance is that the subordination of courts as specified  therein is only for the purpose of the said Code and not for the purpose of a  special Act, although the provisions thereof may be applicable to a case arising  thereunder.  Section 96 of the Code provides that an appeal shall lie from every  decree passed by any Court exercising original jurisdiction to the Court  authorized to hear appeals from the decisions of such Court.  The Court entitled  to hear the appeals from a decree passed by a trial Court, therefore, must be  authorized therefor.  It is one thing to say that an appeal, depending upon the  valuation, would lie before different forums, but if under the provisions of a  special statute an appeal shall lie only before the High Court and to no other, the  District Court would not be a court where an appeal would ordinarily lie from a  judgment of the Land Acquisition Judge.  Land Acquisition Act being self- contained code; in relation to the matters falling within the purview of the Land  Acquisition Act, the Civil Courts would have no jurisdiction.  {See Laxmi  Chand & Ors. vs. Gram Panchayat, Kararia & Ors. [AIR 1996 SC 523].}  Emphasis laid by Mr. Choudhary on the word "ordinarily" occurring in  Sub-Section (4) of Section 195 of the Criminal Procedure Code is not of much  importance.  Sub-Section (4) of Section 195 must be read with Sub-Section (3)  thereof.  Sub-Section (3) broadly divides the Courts into Civil, Revenue or  Criminal as also a Tribunal constituted by or under a Central, Provincial or State  Act.  If a statute constitutes such Tribunal and declares it to be a Court for the  purport of the said Section, Section 195 of the Criminal Procedure Code shall  apply.  It is, thus, the presiding officers of those forums only, which are  specified under Sub-Section (3) of Section 195 of the Criminal Procedure Code,  may file a complaint petition in relation to the offences punishable under the  Sections specified in Clause (b) of Sub-Section (1) of Section 195 of the  Criminal Procedure Code.   It is only for that purpose a legal fiction has been  created, stating that the Court shall be deemed to be Subordinate to the Court to  which appeals ordinarily lie.  If an appeal exclusively lies to the High Court, the  Court of Land Acquisition Judge shall be subordinate to the High Court and not  the Principal Civil Court, although appeal may lie before the latter from the  judgments and decrees passed by it in the suits which may be filed before it.   Section 195 of the Criminal Procedure Code does not recognise  administrative discipline; it recognises judicial discipline with regard to the right  of the higher authority to exercise appellate powers.  The expression  "ordinarily" may mean "normally", as has been held by this Court in Kailash  Chandra vs. Union of India  [(1962) 1 SCR 374 : AIR 1961 SC 1346] and  Krishangopal vs.  Shri Prakashchandra & Ors. [(1974) 1 SCC 128], but, the  said expression must be understood in the context in which it has been used.   "Ordinarily" may not mean "solely" or "in the name", and thus, if under no  circumstance an appeal would lie to the Principal District Judge, the Court

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would not be subordinate to it.  When in a common parlance the expression  "ordinarily" is used, there may be an option.  There may be cases where an  exception can be made out.  It is never used in reference to a case where there is  no exception.  It never means "primarily".  In Kailash Chandra vs. Union of  India  [AIR 1961 SC 1346], it is stated :         "This intention is made even more clear and beyond  doubt by the use of the word "ordinarily".  "Ordinarily"  means in the large majority of cases but not invariably".  

In Krishangopal (supra), whereupon Mr. Choudhary has placed reliance,  this Court was considering the provisions of Section 80-A of the Representation  of People Act, 1951.  In terms of the said provision, an election petition would  be clearly entertainable by a Single Judge, but it was held that such jurisdiction  could also be exercised by two or more judges. The Constitution Bench decision of this Court in Kuldip Singh (supra)  does not render much assistance in this case.  The ratio laid down therein  must be understood in the fact situation obtaining therein.  In that case, an  appeal was maintainable from the decree passed by the concerned Principal  District Judge.  We may briefly notice the fact of that matter:  One Amar  Singh filed a civil suit against one Kuldip Singh for recovery of a large sum  of money on the basis of a mortgage in the Court of Subordinate Judge of  First Class.  The defendant filed a receipt which purportedly showed that  Rs.35,000/- had been paid towards satisfaction of the mortgage and in the  witness box he had sworn that he had paid the money and had received the  receipt.  The Court held that the receipt did not appear to be a genuine  document and that defendant’s evidence was not true.  Accordingly it passed  a preliminary decree against the defendant for the full amount of the claim  on 15-3-1950.  Final decree followed on 15-7-1950.  An appeal was taken to  the High Court which was dismissed on 9-5-51.  The High Court also held  that receipt was a suspicious document and the defendant’s evidence was not  reliable.  The plaintiff thereafter moved an application before the trial Court  asking that a complaint be filed against the defendant under section 193 and  471 IPC.  When the decree was passed the Court was presided by one Mr.  Barlow.  When the application was made for filing the complaint Mr.  Barlow was transferred and Mr. Augustine was the Subordinate Judge.   Before that application could be heard Mr. Augustine was also transferred  and no Subordinate Judge of the First Class was appointed in his place.  One  Mr. K.K. Gujral, a Subordinate Judge of the Fourth class was sent to the area  and was asked to decide the matter, but as he was only a Subordinate Judge  of fourth Class he made a report to the District Judge that he had no  jurisdiction because the offence had been committed in the Court of the  Subordinate Judge of First Class.  The District Judge then transferred the  matter to the Senior Subordinate Judge Mr. Preetam Singh and he made a  complaint which was subject matter of challenge before the Supreme Court.   After Mr. Preetam Singh passed an order which was challenged in an appeal  before the Additional District Judge Mr. J.N. Kapoor.  The learned Judge  held that the Senior Subordinate Judge Mr. Preetam Singh had no  jurisdiction to make the complaint because he was not successor of Mr.  Barlow.  On merits it was held that there was no case.  Thereupon, the  matter went to the High Court in revision.  The learned Judge at the High  Court held that the Senior Subordinate Judge had jurisdiction and the  material disclosed a prima facie case.  Accordingly he set aside the  Additional District Judge’s order and restored the order of Senior  Subordinate Judge making the complaint.   It was held : "Section 476 authorises the appropriate Court, after  recording a finding that it is expedient in the interests of  justice, etc., to, among other things, make a complaint in  writing and forward it to a Magistrate of the first class  having jurisdiction. That was done by Mr. Pitam Singh. So  the only question we have to decide on this part of the case  is whether the Court of the Senior Subordinate Judge over  which Mr. Pitam Singh presided was the Court to which the  Court of Mr. Barlow was subordinate within the meaning of  Section 195(3).

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Now it is to be noticed that subordination has been  given a special meaning in this section. It is not any superior  Court that has jurisdiction, nor yet the Court to which the  "former Court" is subordinate for, what might be termed,  most general purposes, but only the Court to which it is  subordinate within the meaning of Section 195(3)."

Meaning of expression "ordinarily" was considered in the  aforementioned fact situation.  This Court rejected the view that "ordinarily"  would mean "the majority of the cases".  It was opined :   

"In determining the Court or Courts to which an  appeal will ordinarily lie, we have to see which Court or  Courts entertain appeals from that class of tribunal in the  ordinary way apart from special notifications or laws that  lift the matter out of the general class. Our meaning will be  clearer when we turn to the case in hand and examine the  Punjab Courts Act of 1918."

The opinion of the Constitution Bench of this Court was expressed as  appeals from its various decrees and orders lie to different Courts and thus,  the question as regards interpretation of the terms arose in the fact situation  obtaining therein wherefor this Court had to consider to which of them the  appeal would ordinarily lie.  In that case, this Court was considering the  provisions of the Punjab Courts Act, 1918 and categorically held that the law  laid down therein was confined to the said Act.     In the State of Andhra Pradesh there is no such statute.  The  expression "genus" used by this Court was kept limited to the extent of  nature of the proceedings, i.e., whether Civil, Criminal or Revenue.  This  Court had no occasion to determine the question with reference to a special  statute like the Land Acquisition Act.  The Civil Courts exercise their  jurisdiction not only in respect of a suit filed before it, they do so under  various special statutes.  The hierarchy of the Courts for the purpose of  Section 195 of the Criminal Procedure Code, therefore, will have to be  determined, having regard to the nature of the proceedings and the statutes  under which the same is required to be determined.  We may immediately  notice that the Act makes a distinction between filing a complaint by a  public servant and a court.  Whereas Clause (a) of Sub-Section (1) of  Section 195 contemplates administrative subordination, Clause (b)  contemplates judicial subordination.   Each expression used in the Code,  therefore, must be understood upon reading the provisions thereof in their  entirety and not in isolation. In view of the facts and circumstances of this case, we are, therefore,  of the opinion that the Division Bench of the High Court cannot be said to  have committed any error in passing the impugned judgment.  The appeal is  dismissed accordingly.  However, keeping in view the fact that the matter is  pending for long time, we would request the High Court to consider the  desirability of implementing the decision of the Division Bench as  expeditiously as possible.  However, in the facts and circumstances of this  case, there shall be no order as to costs.