18 March 1954
Supreme Court
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M. S. SHERIFF Vs THE STATE OF MADRAS AND OTHERS.

Bench: MAHAJAN, MEHAR CHAND (CJ),MUKHERJEA, B.K.,DAS, SUDHI RANJAN,BOSE, VIVIAN,HASAN, GHULAM
Case number: Appeal (civil) 281 of 1951


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PETITIONER: M.   S. SHERIFF

       Vs.

RESPONDENT: THE STATE OF MADRAS AND OTHERS.

DATE OF JUDGMENT: 18/03/1954

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN HASAN, GHULAM

CITATION:  1954 AIR  397            1954 SCR 1229  CITATOR INFO :  RF         1956 SC 391  (22)  D          1961 SC 181  (5)

ACT:    Criminal Procedure Code (Act V of 1898), s.  476B-Whether appeal  competent  to  the Supreme Court from  an  order  of Division  Bench  of  High Court directing the  filing  of  a complaint for perjury.

HEADNOTE:   Held  that  an appeal is competent to  the  Supreme  Court under  s.  476B of the Code of Criminal  Procedure  from  an order  of  a Division Bench of a High  Court  directing  the filing of a complaint for perjury.    Also held that the simultaneous prosecution of civil  and criminal proceedings regarding the same matter is likely  to embarrass the accused and so ordinarily, and in the  absence of special circumstances, the criminal proceedings should be given precedence and the civil proceedings should be  stayed pending the termination of the criminal.

JUDGMENT: CRMINAL APPELLATE JURISDICTION: Case No. 281 of 1951.   Appeal under article 132 of the Constitution of India from the  Judgment and Order dated the 1st August, 1951,  of  the High Court of Judicature at Madras in Criminal Miscellaneous Petitions Nos.1261 and 1263 of 1951.    K.     Rajah  Iyer  (R.  Ganapathy Iyer and M. S. K. Aiyangar, with him) for the appellant/petitioners, 1145     H.J. Umrigar and S., Subramaniam for respondent No. 2.     1954.   March  18.   The  Judgment  of  the  Court   was delivered by   BOSE  J.-The  question in this case is whether  an  appeal lies  to  this  court under section  476B  of  the  Criminal Procedure  Code from an order of a Division Bench of a  High Court directing the filing of a complaint for perjury.

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 Two persons, Govindan and Damodaran, filed petitions under section  491  of  the Criminal Procedure  Code  for  release claiming  that they had been illegally detained by two  Sub- Inspectors  of  Police  who are the  appellants  before  us. Govindan said he was being detained by one Sub-Inspector and Damodaran said he was being detained by the other.  Both the Sub  Inspectors said that the petitioners were not in  their custody.   The first Sub-Inspector, who was  concerned  with Govindan, said that Govindan had never been arrested by  him and  had  not been in his custody at. any time.   The  other denied that Damodaran was in his custody.  He admitted  that he  had arrested him at one time but said that he  had  been released long before the petition.  Each swore an  affidavit in support of his return.  In view of this conflict  between the  two_  sets of statements the High Court  directed  the District Judge to make an enquiry.    Considerable  evidence  was recorded and  documents  were filed  and the District Judge reported that in  his  opinion the statements made by the two Sub-Inspectors were  correct. The   High   Court  disagreed  and,   after   an   elaborate examination of the evidence, reached the conclusion that the petitioners  were  telling  the  truth  and  not  the   Sub- Inspectors.  The petitioners were however regularly arrested after their petitions and before the High Court’s order; one was  released  on bail and the other was  remanded  to  jail custody  by  an order of a  Magistrate.   Accordingly  their petitions became infructuous and were dismissed. After this, the petitioners applied to the High Court  under section 476 of the Criminal Procedure Code and 1146 asked  that  the Sub-InsPectors be  prosecuted  for  perjury under section 193, Indian Penal Code.  The applications were granted  and   the Deputy Registrar of the  High  Court  was directed to make the necessary complaints.    The Sub-Inspeetors thereupon asked for leave to appeal to this court.  Leave was refused on the ground that no  appeal lies,  but  leave  was  granted  under  article  132  as  an interpretation   of  articles  134  (1)  and  372   of   the Constitution was involved.  The Sub Inspectors have appealed here  against  that order as also against  the  order  under section 476.  In addition, as an added precaution, they have filed  a petition for special leave to appeal under  article 136 (1). The  first question we have to decide is whether there is  a right. of appeal.  That turns on the true meaning of-section 476B  of the Criminal Procedure Code read with  section  195 (3).  The relevant portion of the former reads thus :-    "Any  person  against  whom a complaint  has  been  made" [under  section 476] "may appeal to the court to which  such former  court is subordinate within the meaning  of  section 195 (3)......" The latter section reads-  "For the purpose 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........"   The  rest of the section does not concern us.    Two  things are evident.  First, that a right  of  appeal has been expressly conferred by section 476B provided  there is a higher forum to which an appeal can be made; and second that   the  appellate  forum  has  been  designated  in   an artificial  way.  The appeal lies to the court to which  the former  court is subordinate within the meaning  of  section 195  (3).   But "sub. ordinate" does not bear  its  ordinary meaning.  It is used as a term of art and has been given  a

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special  meaning by reason of the definition in section  195 (3):  a  fiction  has been imposed by the use  of  the  word "deemed".,  We have accordingly next to examine the  content of the fiction. 1147 The  section  says  that the court making  the  order  under section 476 shall be deemed to be subordinate to the court (a)  to which appeals ordinarily lie (b)  from the appelable decrees or sentences of such  former court. Now the former court in this case is a Division Bench of the High  Court.  The only court to which an  appeal  ordinarily lies from the appealable decrees and sentences of a Division Bench of a High Court is this court.  Therefore, a  Division Bench of a High court is a court "subordinate" to this court within the meaning of section 195 (3); accordingly an appeal lies  to this court from an order of a Division Bench  under section 476..   It was contended that there is no ordinary right of appeal to  this  court  and that such rights  as  there  are  those expressly  conferred by the Constitution in a  very  limited and  circumscribed  set of  circumstances,  therefore,  such appeals  as  lie  to  this  court  cannot  be  said  to  lie "ordinarily".    We do not agree.  Such an argument concentrates attention on  the word "ordinarily" and ignored the words  "appealable decrees  or sentences".  Before we can apply the  definition we have first to see whether there is a class of decrees  or sentences in the court under consideration which are;at  all open  to  appeal.  If there are not, the  matter-  ends  and there  is no right of appeal under section 476.B.  If  there are,  then we have to see to which court those appeals  will "ordinarily"  lie.   It is evident that the  only  court  to which  the  appealable decrees and sentences of  a  Division Bench  of a High Court can lie is the Supreme Court.   There is  no  other  court to which an appeal  can  be  made.   It follows  that  is  the ordinary course in the  case  of  all appealable decrees and sentences and that consequently  this is the court to which such appeals will ordinarily lie.    As  there is a right of appeal we have next  to  consider the  matter  on  its  merits and  there  the  only  relevant consideration  is whether "it is expedient in the  interests of justice" that an enquiry should be 1148 made  and  a,  complaint filed.   That  involves  a  careful balancing of many factors.    The High Court has scrutinised the. evidence minutely and has disclosed ample material on which a judicial mind  could reasonably  reach the conclusion that there is  matter  here which requires investigation in a criminal court and that it is expedient in the interests of justice to have it enquired into.   We have not examined the evidence for ourselves  and we express no opinion on the merits of the respective  cases but  after a careful reading of the judgment, of  the  High Court  and the report of the District Judge we can  find  no reason  for interfering with the High Court’s discretion  on that  score.  We do not intend to say more than  this  about the  merits as we are anxious not to prejudge or  prejudice the  case  of either side.  The learned Judges of  the  High Court have also very -rightly observed in their order  under section 476 that they were not expressing any opinion on the guilt or innocence of the appellants.   We  were informed at the hearing that two further sets  of proceedings  arising out of the same facts are now,  pending against the appellants.  One is two civil suits for  damages

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for   wrongful  confinement.   The  other,is  two   criminal prosecutions  under  section  344, Indian  Penal  Code,  for wrongful  confinement, one against each  Sub-Inspector.   It was  said  that  the  simultaneous  prosecution  of  these, matters  will embarrass the accused.  But after the  hearing of the appeal we received information that the two  criminal prosecutions  have  been closed with liberty to  file  fresh complaints  when  the papers are ready, as  the  High  Court records were not available on the application of the accused As  these  prosecutions are not pending at the  moment,  the objection regarding them does not arise but we can see  that the   simultaneous  prosecution  of  the  present   criminal proceedings  out of which this appeal arises and  the  civil suits  will  embarrass the accused.  We  have  therefore  to determine which should be stayed.     As between the civil and the criminal proceedings we are of the opinion that the criminal matters should 1149 be given precedence.  There is some difference of opinion in the  High Courts of India on this point.  No hard  and  fast rule  ban.  be  laid down but we do not  consider  that  the possibility  of  conflicting  decisions  in  the  civil  and criminal  courts  is  a  relevant  consideration.   The  law envisages  such  an eventuality when it  expressly  refrains from making the decision of one court binding on the  other, or even relevant, except for certain limited purposes,  such as  sentence  or damages.  The only  relevant  consideration here is the likelihood of embarrassment.   Another  factor which weighs with us is that a civil  suit often  drags  on  for years and it  is  undesirable  that  a criminal  prosecution should wait till  everybody  concerned has  forgotten  all about the crime.  The  public  interests demand that criminal justice should be swift and sure;  that the  guilty  should be punished while the events  are  still fresh  in  the public mind and that the innocent  should  be absolved as early as is consistent with a fair and impartial trial.   Another  reason is that it is  undesirable  to  let things  glide  till memories have grown too  dim  to  trust. This,however,  is  not  a  hard  and  fast  rule.    Special considerations  obtaining in any particular case might  make some other course more expedient and just.  For example, the civil  case or the other criminal proceeding may be so  hear its  end  as to make it inexpedient to stay it in  order  to give precedence to a prosecution order of under section 476. But  in  this case we are of the view that the  civil  suits should   be  stayed  till  the  criminal  proceedings   have finished.    The result is that the appeal fails and is dismissed  but with no order about costs.  Civil Suits Nos. 311 of 1951  to 314  of  1951,  in  the  Court  of  the  Subordinate  Judge, Coimbatore,  will  be  stayed till  the  conclusion  of  the prosecution  under section 193, Indian Penal Code.   As  the plaintiffs  there are parties here, there is  no  difficulty about making such an order. The petition for special leave is dismissed.                     Appeal dismissed.              Petition for special leave dismissed, 1150