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PETITIONER: KULDIP SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB AND ANOTHER.

DATE OF JUDGMENT: 15/02/1956

BENCH:

ACT: Complaint by Court-Complaint by Senior Subordinate Judge  of offences  committed in a proceeding before  the  Subordinate Judge   of  the  first  class-Validity-Competency   of   the Additional Judge to entertain appeal-Power of High Court  in revision-Code of Criminal Procedure (Act V of 1898), ss. 195 (3),  476,  476-A, 476-B, 439-The Punjab Courts Act  (VI  of 1918),  ss. 18,21-Code of Civil Procedure (Act V of  .1908), s. 115.

HEADNOTE: The  question as to which Court is competent to make a  com- plaint  under  s. 476-A read with s. 195(3) of the  Code  of Criminal Procedure where none wag made by the Court in which the  offence  was  committed or its  successor  Court,  will depend on the nature of the proceeding in which the  offence was  committed, whether civil, criminal or revenue,  and  on the  hierarchy  of superior Courts to which an  appeal  from such  proceeding will ordinarily lie as contemplated  by  s. 195(3)  of  the Code, apart from such exceptions as  may  be made  in  respect of any particular matters by  any  special notifications  or laws.  Where, however, appeals  ordinarily lie to different courts, the one of the lowest grade will be the Court competent to make the complaint. Wadero Abdul Bahman v. Sadhuram, ([1930] 32 Cr.  L. J. 1012] and M. S. Sheriff v. Govindan (A.I.R. 1951 Mad. 1060, 1061), not approved. Under  the  Punjab Courts Act of 1918 and the  hierarchy  of civil Courts established thereby, appeals from the Courts of the  various  subordinate  Judges  who  constitute  distinct Courts do not ordinarily lie to the Senior Subordinate Judge but  to the District Judge and the Court of  the  Additional Judge is not a Court of coordinate jurisdiction with that of the District Judge.  The Act neither mentions nor recognises an Additional District Judge as a Court of that hierarchy. Consequently, in a case where offences under ss. 193 and 471 of the Indian Penal Code were alleged to have been committed in a civil proceeding in the Court of a Subordinate Judge of the  first class, exercising jurisdiction under  the  Punjab Courts Act of 1918, and neither he nor his successor made  a complaint or rejected the application for the making of  it, the   Senior  Subordinate  Judge  had  no  jurisdiction   to entertain  the  matter and make the complaint  either  as  a Court of appeal under s. 476-B or of Its own authority under s.  476-A  of  the  Code  of  Criminal  Procedure  and   the Additional 17 126 Judge,  by  wrongly  describing  himself  as  an  Additional

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District Judge, could not assume a jurisdiction which he did not possess under those sections. The  High  Court has power to revise orders  of  subordinate Courts  made without jurisdiction both under s. 439  of  the Code  of Criminal Procedure and under s. 115 of the Code  of Civil  Procedure, therefore, it was not necessary to  decide under  Art.  136  of the Constitution  which  of  these  two sections  applied  in the present case, but the  High  Court erred  in  upholding  the  complaint  made  by  the   Senior Subordinate Judge because that court had no jurisdiction  to make the complaint. The High Court is not a Court to which the Subordinate Judge of  the first class is subordinate within the meaning of  s. 196(3)  of  the Code of Criminal Procedure  and  could  not, therefore,  make  the  complaint of its  own  authority  and should  have remitted the application to the District  Judge for disposal according to law.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 34 of 1955. Appeal  by special leave from the judgment and  order  dated the  7th  June  1954 of the Punjab High Court  at  Simla  in Criminal  Revision  No.  985  of 1953  arising  out  of  the judgment  and order dated the 9th May 1953 of the  Court  of the Additional District Judge, Ambala. Ramalal Anand and I. S. Sawhney, for the appellant. Gopal Singh and P. G. Gokhale, for respondent No. I. Jindra Lal and Gopal Singh, for respondent No. 2. 1956.  February 15.  The Judgment of the Court was delivered by BOSE  J.-This appeal was argued at great length  because  of the  wide divergence of judicial opinion that centres  round sections  195 and 476 of the Criminal Procedure  Code.   The question  is about the validity of a complaint made  against the appellant for perjury and for using a forged document as genuine in the following circumstances.  The second respondent Amar Singh filed a civil 127 suit  against the appellant for recovery of a large  sum  of money  on the basis of a mortgage in the Court of Mr. E.  F. Barlow,  a  Subordinate  Judge  of  the  First  class.   The appellant  filed a receipt which purported to show that  Rs. 35  000 had been paid towards satisfaction of  the  mortgage (whether in full satisfaction or part is not clear), and  in the witness box he swore that he had paid the money and  was given the receipt.  Mr. Barlow held that the receipt did not appear  to  be a genuine document and that  the  appellant’s evidence was not true.  Accordingly he passed a  preliminary decree  against  the appellant for the full  amount  of  the claim on 15-3-1950 and a final decree followed on 15-7-1950. There was an appeal to the High Court but that was dismissed on 9-5-1951.  The High Court also held that the receipt  was a very auspicious document and that the appellant’s evidence was not reliable. The  plaintiff then made an application in the Court of  Mr. W. Augustine, who is said to have succeeded Mr. Barlow as  a Subordinate  Judge  of  the  first  class,  asking  that   a complaint be filed against the, appellant under sections 193 and  471 of the Indian Penal Code.  But before it  could  be beard  Mr.  Augustine was transferred and it seems  that  no Subordinate  Judge of the first class was appointed  in  his place; instead, Mr. K. K. Gujral, a Subordinate Judge of the

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fourth  class,  was sent to this area and be seems  to  have been  asked  to  decide the matter.  But as he  was  only  a Subordinate  Judge of the fourth class be made a  report  to the  District Judge that he had no jurisdiction because  the offences  had been committed in the Court of  a  Subordinate Judge  of  the first class.  The  District  Judge  thereupon transferred the matter to the Senior Subordinate Judge,  Mr. Pitam Singh, and that officer made the complaint that is now under consideration.  The  appellant  filed an appeal against Mr.  Pitam  Singh’s order  to  the Additional District Judge, Mr. J.  N.  Kapur. This  learned Judge held that the Senior  Subordinate  Judge (Mr.  Pitam Singh) had no jurisdiction to make the complaint because he was 128 not  Mr. Barlow’s successor.  He also held, on  the  merits, that there was no prima facie case.  The  matter  went  to the High Court in  revision  and  the learned High Court Judge who beard the matter held that  the Senior  Subordinate  Judge  had jurisdiction  and  that  the material disclosed a prima facie case.  Accordingly, he  set aside the Additional District Judge’s order and restored the order of the Senior Subordinate Judge making the complaint.   This  raises  three  questions.  The  first  concerns  the jurisdiction of the Senior Subordinate Judge Mr. Pitam Singh to  entertain the application and make the  complaint.   The second   is  whether  the  Additional  District  Judge   had jurisdiction  to  entertain  an  appeal  against  Mr.  Pitam Singh’s  order; and the third is whether the High Court  had power  to reverse the Additional District Judge’s  order  in revision.   We  will  first  deal  with  Mr.  Pitam  Singh’s jurisdiction  to  make  the  complaint.   This  question  is governed  by the Criminal Procedure Code and by  the  Punjab Courts  Act, 1918.  We will examine the  Criminal  Procedure Code first.   The  offences said to have been committed are  ones  under sections 471 and 193 of the Indian Penal Code, namely, using as  genuine  a forged document knowing it to be  forged  and perjury.   Section  195(1)  (b)  and  (c)  of  the  Criminal Procedure Code prohibit any Court from taking cognizance  of either  of  these two offences except on  the  complaint  in writing of the Court concerned  "or of some other Court to which such Court is subordinate".  The  offences  were  committed in the  Court  of  Mr.  E.F. Barlow, a Subordinate Judge of the first class.  It seems to have  been  accepted that Mr. Gujral was  not  Mr.  Barlow’s successor  because  be was only a Subordinate Judge  of  the fourth  class, but whether he was the successor or  not,  he neither made the complaint nor rejected the application.  He declined   to   do  either  because  he  said  be   had   no jurisdiction;  so also neither Mr. Barlow nor Mr.  Augustine made a complaint or rejected the application.  That carries 129 us on to section 476-A of the Criminal Procedure Code. Section  476-A  states  that when the  Court  in  which  the offence  is  said  to have been committed  neither  makes  a complaint  nor  rejects an application for the making  of  a complaint,  "the  Court  to  which  such  former  Court   is subordinate  within the meaning of section 195,  sub-section (3)" may take action under section 476.  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

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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 ).  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). Section 195(3) states that-  "For the purposes of this 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 situate" and  then follows this proviso- "Provided that- (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; and 130 (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".   These  provisions have given rise to much conflict in  the High  Courts.   The controversy has centred round  the  word "ordinarily".   One  class of case, of  which  Wadero  Abdul Rahman  v. Sadhuram(1) is a sample, holds that  "ordinarily" means  "in  the  majority  of cases"  and  that  it  has  no reference  to the particular case in hand.  We do not  think that  is right because that gives no meaning to the  proviso to  sub-clause (3).  If appeals lie to a  particular  Court, e.g.,  the District Court, in the majority of cases  and  to another Court,say the High Court, only in a few cases,  then the inferior tribunal is a fixed quantity and so the need to choose  between the inferior and the superior  Court  cannot arise.   That  makes sub-clause (a) to the  proviso  otiose; also, it does not necessarily follow that the appeal in  the majority  of  cases will always lie to the  inferior  Court. Cases may occur in which the majority of appeals would go to the  higher  of two given tribunals; and in  any  case  this interpretation  has  the disadvantage that a  Court  may  be compelled  to call for and go into a mass of  statistics  to ascertain  which  of two Courts entertains the  majority  of appeals over a given period of time, as well as to determine what is the appropriate period of time.   Another view considers that the word means that the higher Court is the one to which there is an unrestricted right  of appeal  and so cannot apply when any restriction  intervenes such as when the right of appeal is limited to a  particular class of cases or is hedged in by conditions.  This was  the view taken in  M.   S. Sheriff v. Govindan(2). Other  views  are  also possible but we  do  not  intend  to explore  them.  In our opinion, the matter is to  be  viewed thus.   The  first  question  to be  asked  is  whether  any decrees, orders or sentences of the original Court (1) [1930) 32 Cr.  L.J. 1012.  (2) A.I.R. I 1951 Mad.  1060,

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1061, 131 are appealable at all.  If they are not, and the Court is  a Civil Court, then,, under section 195(3), the appeal against the order making or refusing.to make a complaint will be  to the principal Court of ordinary original civil jurisdiction. If, however, appeals from its various decrees and orders lie to  different Courts, then we have to see to which  of  them they  "ordinarily"  lie and select the one of  lowest  grade from among them.   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.  Apart   from  the  Courts  of  Small  Causes   and   Courts established  under other enactments, the Punjab Courts  Act, 1918  makes  provision for three classes  of  Civil  Courts, namely- (1)  the Court of the District Judge, (2)  the Court of the Additional Judge, and (3)  the Court of the Subordinate Judge.  At the moment we are concerned with the Subordinate  Judge. Section 22 enables the State Government to fix the number of Subordinate  Judges after consultation with the High  Court. The  local limit of jurisdiction of each of these Judges  is the district in which he is appointed unless the High  Court defines  a  different  limit (section  27).   The  pecuniary limits are set out in section 26:   "The  jurisdiction  to  be exercised  in  civil  suits  as regards   the  value  by  any  person  appointed  to  be   a Subordinate  Judge  shall be determined by  the  High  Court either by including him in a class or otherwise as it thinks fit".  These  are  what might be termed the  ordinary  powers  and jurisdiction  of  these  Courts.  But  sections  29  and  30 authorise the High Court to confer certain additional powers and jurisdiction on them.  We will deal with that later. 132 Next,  we  turn  to the provisions  for  appeal.   They  are governed  by  section  39.   In the  absence  of  any  other enactment for the time being in force, when the value of the suit does not exceed five thousand rupees the appeal lies to the  District  Judge, and in every other suit, to  the  High Court.   But by sub-section (3) the High Court is  empowered to direct by notification   "that appeals lying to the District Court from all or  any of  the decrees or orders passed in an original suit by  any Subordinate   Judge  shall  be  preferred  to   such   other ’Subordinate Judge as may be mentioned in the notification" and when that is done  "such  other  Subordinate  Judge shall be deemed  to  be  a District   Court  for  the  purposes  of  all   appeals   so preferred".   The  High  Court  availed itself  of  this  provision  and provided  that  appeals lying to the  District  Courts  from decrees  or  orders passed by any Subordinate Judge  in  two classes of case which are specified  "shall be preferred to the Senior Subordinate Judge of  the first  class  exercising  jurisdiction  within  such   Civil District".  There are thus three forums of appeal from the Court of the Subordinate  Judge depending on the nature of the  suit  and

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its  value.  The question is whether in each of these  three classes  of case the appeal can be said to lie  "ordinarily" to one or other of these appellate tribunals.  Applying  the rule  we  have  set  out above, the  appeal  to  the  Senior Subordinate  Judge cannot be termed "ordinary"  because  the special appellate jurisdiction conferred by the Notification is  not the ordinary jurisdiction of the Senior  Subordinate Judge but an additional power which can only be exercised in a  certain limited class of case.  It is not a power  common to all Subordinate Judges nor even to all Senior Subordinate Judges.  Therefore, it cannot be said that appeals from  the Courts of the various Subordinate Judges "ordinarily" lie to the  Senior Subordinate Judge.  Consequently, that Court  is not one of the appellate tribunals contemplated 133 by  section  195(3) of the Criminal Procedure Code  and  its proviso.   But  appeals do "ordinarily" lie  either  to  the District Court or the High Court; and as the District  Court is the lower of these two tribunals that must be regarded as the appellate authority for the purposes of section 476-B of the Criminal Procedure Code. Now  it  is to be observed that this is a  purely  objective analysis is and is not subjective to any particular  suit.In the present suit, the value of the suit was over  Rs. 5,000, so the appeal would have lain to the High    Court,  but  we are not concerned with that be cause section 195(3) does not say that the appellate authority within the meaning of  that section  shall  be  the Court to which  the  appeal  in  the particular case under consideration would ordinarily lie but generally "the  Court  to  which  appeals  ordinarily  lie  from   the appealable decrees or sentences of such former Court".  It  would, however, be wrong to say that the nature of  the proceedings in the case must be wholly ignored because  sub- clause (b) to the proviso to sub-section (3) states that  "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". Therefore, to that limited extent the nature of the  proceedings  must be taken into account, but  once  the genus  of  the  proceedings is  determined,  namely  whether civil,  criminal or revenue, the heirarchy of  the  superior Courts  for these purposes will be determined, first by  the rules that apply in their special cases and next by the rule in   section  195(3)  which  we  have  just  expounded   and explained. M.   S.  Sheriff v. The State of Madras and  Others,(1)  was quoted  but  the present point was  neither  considered  nor decided there. The  next  question  is  whether the  Court  of  the  Senior Subordinate  Judge is the same Court as Mr. Barlow’s  Court, namely the Court of the Subordinate (1)  [1954] S. C. R. 1144,1147. 18 134 Judge of the first class.  That depends on whether there  is only  one Court of the Subordinate Judge in  each  district, presided  over by a number of Judges, or whether each  Court is a separate Court in itself.  That turns on the provisions of the Punjab Courts Act.   We  make  it  clear that our decision  on  this  point  is confined to the Punjab Act.  We understand that similar Acts in  other  States  are differently worded so  that  what  we decide  for the Punjab may not bold good elsewhere.  We  say this  because rulings were cited before us from other  parts

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of  India  which take differing views. We do not  intend  to refer  to them because it would not be right to examine  the language   of  Acts  that  are  not  directly   before   us. Accordingly, we confine ourselves to the Punjab Act (Act  VI of 1918).   Section  18  of the Punjab Courts Act  states  that  there shall be the following classes of Courts, namely "................................................ (3) the Court  of  the  Subordinate Judge". Section 22 provides that  "the  State  Government  may........  fix  the  number   of Subordinate Judges to be appointed". Section  26,  which  has  already  been  quoted,  fixes  the pecuniary limits of their jurisdiction.  Then comes  section 27 defining the local limits of their jurisdiction:  "(1) The local limits of the jurisdiction of a  Subordinate Judge shall be such as the High Court may define.  (2) When  the  High Court posts a Subordinate  Judge  to  a district,  the  local limits of the district shall,  in  the absence  of any direction to the contrary, be deemed  to  be the local limits of his jurisdiction".  From  there  we go to the Notification.  It is  High  Court Notification No. 4 dated 3-1-1923.  It makes four classes of Subordinate Judges with effect from 5-1-1923  "in respect of the jurisdiction to be exercised by them  in original suits, namely:-  Class I-Subordinate Judges exercising juris- 135 diction without limit as to the value of the cases; Class II-Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 5.000; Class  III-Subordinate  Judges  exercising  jurisdiction  in cases of which the value does not exceed Rs. 2,000; Class IV-Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 1,000. When a Subordinate Judge is appointed to any of the  classes constituted  by  this Notification, he  shall  exercise  the jurisdiction  here in before defined for the class to  which he  is  appointed  within  the local  limits  of  the  civil district to which he may be posted from time to time".   This  gives  rise to three points of view.   According  to one,  there is only one Court of the Subordinate  Judge  for each  district  and  every other  Subordinate  Judge  is  an additional  Judge  to  that Court.  This  is  based  on  the language of section 18, and the High Court Notification  is, under that view, interpreted as dividing the Judges of  that one   Court  into  four  categories  but  not  as   creating independent Courts.  Section 26 is there read as  empowering the   High   Court  to  include   each   Subordinate   Judge individually  on appointment into a given class  within  the one Court and not to turn him into a separate Court. According  to  the second view, there are  four  classes  of Subordinate Judge’s Courts in the Punjab because of the High Court Notification.  The argument here runs that section  18 must  be  read  with section 26, and as the  High  Court  is empowered  to divide Subordinate Judges in a  district  into classes  it must mean that each class forms  an  independent Court,  for  according to this point of view,  it  would  be anomalous  to  have Judges of the one  Court  invested  with differing  pecuniary  jurisdictions because that  is  always regarded as inherent to the Court.  The position created  by the Act, it is said, is not the same as the one that  arises when work is -administratively distributed among  Additional Judges of the same 136

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Court because the jurisdiction and powers of the Judges  are unaffected  by such distribution and there remains  the  one Court with one inherent and territorial jurisdiction despite the distribution.  The third view is that each Subordinate Judge is a separate and independent Court in himself and it is pointed out  that section 27 invests each Judge personally with a  territorial jurisdiction and not the Court, and so also section 26.   Under section 33 the power of control (apart from the High Court)  over all civil Courts within the local limits  of  a District  Judge’s jurisdiction is with him, and  section  34 empowers the District Judge to distribute any civil business "cognizable  by .... the Courts under his control....  among such  Courts in such manner as he thinks fit".   The  Senior Subordinate  Judge  does not therefore appear to  be  vested with  either  administrative or judicial  control  over  any other Subordinate Judge except in so far as he is a Court of appeal in certain specified classes of case.  In  our opinion, the Senior Subordinate Judge who made  the complaint  had  no jurisdiction to make it,  either  as  the original  Court  which tried the suit, or as  the  appellate authority  under  section 476-B of  the  Criminal  Procedure Code.  It is not enough that he also had first class  powers because be was not the same Court.  That is not to say  that a  successor could not have been appointed to Mr. Barlow  so as  to  establish  continuity in the  Court  over  which  he presided.  It is possible that one could have been appointed and indeed it seems to have been assumed that Mr.  Augustine was  his  successor.  But as Mr. Augustine did not  take  up this matter we need not decide that point.  What we think is clear  is  that  Mr.  Pitam  Singh  was  not  a   successor, especially  as appeals lay to him from certain decisions  of the Subordinate Judges in his district.  It would be unusual to  provide an appeal from one Judge of a Court  to  another single  Judge  of  the same Court.  It would  be  even  more anomalous to have an appeal from the decision of a judge lie to his successor in office.  Even 137 in the High Courts, where there are Letters Patent  appeals, the  appeal is always heard by a Division Bench of at  least two Judges; nor can this be treated as a case where a  Court with inherent jurisdiction decides the matter as an original tribunal  though,  owing  to territorial  or  other  similar classification not affecting inherent jurisdiction, the case should  have gone to some other tribunal of  co-ordinate  or lesser authority.  Section 193(1) of the Criminal  Procedure Code  imposes  a  definite bar which cannot  be  ignored  or waived any more than the prohibitions under sections 132 and 197  and,  just  as  the sanctions  provided  for  in  those sections  cannot  be given by any authority  save  the  ones specified, so here, only the Courts mentioned in section 195 (1) (b) and (c) can remove the bar and make the complaint. This  also appears to accord with the Punjab practice.   The Rules  and  Orders  of the Punjab  High  Court  reproduce  a Notification of the High Court dated 16-5-1935 as amended on 23-2-1940,  at page 3 of Chapter 20-B of Volume I, where  it is said in paragraph 2-  "It   is  further  directed  the  Court  of   such   Senior Subordinate Judge of the first class shall be deemed to be a District Court, etc."  This  appears to regard each Senior Subordinate Judge as  a Court in himself and not merely as the presiding officer  of the Court of the Subordinate Judge.  Section  39(3) of the Punjab Courts Act is  also  relevant. It states that-

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"the  High  Court may by notification direct  that  appeals lying  to the District Court from all or any of the  decrees or  orders  passed in an original suit  by  any  Subordinate Judge shall be preferred to such other Subordinate Judge  as may be mentioned in the notification, and the appeals  shall thereupon  be preferred accordingly, and the Court  of  such other  Subordinate Judge shall ’De deemed to be  a  District Court, etc. "  Now this permits an appeal from one Subordinate Judge  to another  and the words the "Court of such other  Subordinate Judge" indicate that the Subordi- 138 nate Judge to whom the appeal is preferred is a separate and distinct Court. The  position  thus reduces itself to  this.   The  original Court  made  no  complaint; section 476-A  of  the  Criminal Procedure Code was therefore attracted and the  jurisdiction to make the complaint was transferred to the Court to  which Mr.  Barlow’s  Court was subordinate within the  meaning  of section 195.  That Court, as we have seen, was the Court  of the District Judge.   Now, when the matter was reported to the District Judge by Mr. K. K. Gujral, the District Judge dealt with it.  He  had authority  under section 476-A either to make the  complaint himself  or  to  reject the application.   He  did  neither. Instead,  he  sent  it  to  Mr.  Pitam  Singh  who  had   no jurisdiction.  Of course, the District Judge could have sent it  to the original Court or to the successor Judge of  that Court  if there was one, but he sent it to a  Court  without jurisdiction,   so  his  order  was  ineffective   and   the subsequent   order   of   Mr.  Pitam   Singh   was   without jurisdiction.   That still left the District Court  free  to act  under  section 476-A when the matter came  back  to  it again.   This time it came by way of appeal from  Mr.  Pitam Singh’s  order  but  that made  no  difference  because  the substance of the matter was this: the original Court had not taken any action, therefore it was incumbent on the District Judge to make an appropriate order either under section 476- A or by sending it for disposal to the only other Court that had  jurisdiction,  namely  the  original  Court.   But  the District  Judge did not deal with it.  The application  went instead  to  the Additional District Judge and what  we  now have to see is whether the Additional District Judge had the requisite power and authority.  That depends on whether  the Additional District Judge was a Judge of the District  Court or  whether he formed a separate Court of his own  like  the various Subordinate Judges; and that in turn depends on  the language of the Punjab Courts Act.  As  we  have already pointed out, section 18  of  that  Act states that, in addition to Courts of Small Causes 139 and Courts established under other enactments,   "there shall be the following classes of Civil Courts, namely:-- (1)  The Court of the District Judge; (2)  The Court of the Additional Judge; and (3)  The Court of the Subordinate Judge". The Court of the Additional Judge is therefore constituted a distinct  class of Court, and it is to be observed that  the Act  speaks of the Court of the Additional Judge and not  of the  Additional District Judge as is the case  with  certain other  Acts in other parts of India.  This language is  also to be compared with articles 214 and 216 of the Constitution which  constitute  and define the constitution of  the  High Courts in India.

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       ‘‘214(1).  There  shall  be a High  Court  for  each State’’.    "216 . Every High Court shall consist of a Chief  Justice and such other Judges as the President may from time to time deem it necessary to appoint". The  Punjab  Courts  Act nowhere  speaks  of  an  Additional District  Judge  or of an Additional Judge to  the  District Court;  also,  the Additional Judge is not a  Judge  of  co- ordinate   judicial  authority  with  the  District   Judge. Section 21 (I) states that-    "When  the  business pending before  any  District  Judge requires  the aid of an Additional Judge or Judges  for  its speedy  disposal,  the  State Government  may  appoint  such Additional Judges as may be necessary". But these Judges cannot discharge all the judicial functions of the District Judge.  Their jurisdiction is a limited  one and is limited to the discharge of such functions as may  be entrusted  to  them by the District  Judge.   Section  21(2) states that  "An  Additional Judge so appointed shall discharge  any  of the functions of a District Judge’ which the District  Judge may assign to him". It is true that sub-section (2) goes on to say that   "in the discharge of those functions he shall exercise the same  powers  as the District Judge" but  these  powers  are limited to the cases with which 140 he is entitled to deal.  Thus, if his functions are confined to  the  hearing  of appeals  he  cannot  exercise  original jurisdiction and vice versa.  But if he is invested with the functions  of  an appellate tribunal at the  District  Court level,  then he can exercise all the powers of the  District Judge  in dealing with appeals which the District  Judge  is competent to entertain.  This is a very different thing from the administrative distribution of work among the Judges  of a sin-ale Court entitled to divide itself into sections  and sit  as division Courts.  When the Chief Justice of  a  High Court  or  the District Judge of a District Court  makes  an administrative  allotment  of work among the Judges  of  his Court,  their jurisdiction and powers are not affected,  and if work allotted to one Judge goes to another by mistake his jurisdiction to entertain the matter and deal with it is not affected.   But that is not the scheme of the Punjab  Courts Act  and the mere fact that Mr. J. N. Kapur  called  himself the  Additional District Judge and purported to act as  such cannot affect the matter of his jurisdiction.  As the Punjab Courts   Act  does  not  contemplate  the   appointment   of Additional  Judges  to  the  District  Court,  none  can  be appointed.   The  Court  contemplated is the  Court  of  the Additional  Judge  which  is  in the  nature  of  a  special tribunal set up for a special purpose and invested with  the powers  of  a District Judge when dealing with  the  matters specially entrusted to its jurisdiction.  We hold  therefore that  the Court of the Additional Judge is not-  a  division Court of the Court of the District Judge but a separate  and distinct Court of its own.   Now,  as  we have seen, when the original Court  does  not make a complaint under section 476 of the Criminal Procedure Code  or reject the application, then the only  other  Court competent  to  exercise these powers is the Court  to  which appeals  from  the original Court  "ordinarily  lie".   That Court,  in the present case, was the Court of  the  District Judge  and not the Court of the Additional Judge Mr.  J.  N. Kapur.  Therefore, Mr. J. N. Kapur’s order was also  without jurisdiction.

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141 Mr. Kapur’s order went up to the High Court in revision, and the  next question we have to determine is whether the  High Court  had  jurisdiction to entertain the revision  and  the extent  of  its powers. Keshardeo Chamria  v.  Radha  Kissen Chamria  and Other8(1) and many cases from the  High  Courts were  cited  which  show that there is  much  difference  of opinion about this but we are fortunately not called upon to decide  that  question because this is not a  case  where  a Court  with jurisdiction has acted under section 476 of  the Criminal Procedure Code of its own motion or has acted as  a Court of appeal under section 476-B.  As we have shown,  the Court of the Senior Subordinate Judge Mr. Pitam Singh had no jurisdiction  to entertain this matter either as a Court  of appeal  under  section 476-B or of its own  authority  under section  476-A.  The Additional Judge Mr. J. N.  Kapur,  who has called himself an Additional District Judge, also had no jurisdiction under either section.  But he seised himself of the case and has rejected the application for the making  of a  complaint.  He therefore assumed a jurisdiction which  he did  not possess and that at once attracted  the  revisional jurisdiction of the High Court.   Now  it  does  not  matter  in  this  case  whether   that jurisdiction   lies  under  section  439  of  the   Criminal Procedure  Code or under section 115 of the Civil  Procedure Code  because  under either of these two sections  the  High Court  is  entitled  to  set  aside  an  order  of  a  Court subordinate  to it which has assumed a jurisdiction that  it does  not possess.  Therefore, in so far as the  High  Court set  aside the order of Mr. J. N. Kapur it was  right.   But where  it went wrong was in upholding the complaint made  by the Senior Subordinate Judge.  As we have shown, that  Court had no jurisdiction to make the complaint .   The  next question is whether the High Court could  itself have  made the complaint in this particular case because  if it  could  have  done so then we would  not  have  used  our extraordinary  powers  of appeal under article  136  to  set right what would in those circum- (1)  [1953] S.C.R. 136, 150 to 152. 19 142 stances  have been a mere procedural irregularity.   But  as our  opinion is that the High Court had no  jurisdiction  to act  under  section  476  in this  case,  we  are  bound  to interfere.   As  we  have shown,  section  195  contains  an express prohibition against taking cognizance of the kind of complaint  we have here unless the bar is lifted  either  by the  original Court or the Court to which it is  subordinate within  the meaning of section 195(3).  Those are  the  only Courts  invested with jurisdiction to lift the ban and  make the  complaint.   Had this been a case in  which  the  High’ Court  was the superior Court within the meaning of  section 195(3)  the  matter would have been different,  but  as  the original Court was neither the original Court nor the  Court to  which the original Court was subordinate,  according  to the  special  definition  in  section  195(3),  it  had   no jurisdiction  to  make the complaint of its  own  authority. Therefore,  all that the High Court could, and should,  have done was to send the case to the District Judge for disposal according to law.  We will, therefore,, now do what the High Court should have done.   We  were  asked not to allow the proceedings to  pend  any longer but we are not prepared to do that in this case.   If the  view  taken by Mr. Pitam Singh and the  High  Court  is right,   then   a  serious  offence  of  a  kind   that   is

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unfortunately  becoming  increasingly common, and  which  is difficult  to bring home to,an offender, has been  committed against  the administration of justice, and if the  District Court  is  satisfied, as were Mr. Pitam Singh and  the  High Court, that a prima facie case has been made out and that it is  expedient in the interests of justice that  a  complaint should be filed, then it is but right that the matter should be  tried in the criminal Courts.  We will not say  anything more  lest it prejudice the appellant.  The  District  Judge will of course be free to exercise his own discretion.   The application  for the making of a complaint will  accordingly be remitted to the District Judge who will now deal with it. 143