# Hem Raj v. The State of Ajmer

- **Citation:** [1954] 1 S.C.R. 1144
- **Court:** Supreme Court of India
- **Decided:** 1951-08-01
- **Case number:** criminal. CRIMINAL APPELLATE JURISDICTION : Case No. 281 of 1951
- **Bench:** Mehr Chand Mahajan C. J, MuKHERJEA, S. R. DAs, VIVIAN BosE, GHuLAM HASAN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hem-raj-v-the-state-of-ajmer-252
- **Pages:** 6

## Headnote

CTiminal Procedure Code (Act V of 1898), s. 476B-Whether
appeal competent to the Suprenie Court from aT?_ order of Division
Bench of High
Court directing the filing
of a complaint
for
perjury.
Held that an appe~l 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 ord£narily, 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.
CRIMINAL
APPELLATE
JURISDICTION : Case
No. 281
of 1951.
Appeal under article 132
of the
Constitution
of
India from the

## Text

1954
Hem Raj
v.
The State of
Ajmer.
Mahajan C. J.
1954
March 18.
1144
SUPREME COURT REPORTS
[1954]
in holding that this evidence by itself was insufficient
to uphold his conviction and that Hukum Singh was
entitled to the benefit of the doubt in respect of both
the charges found against him.
There is hardly
any
material
on
the
record to justify
our interference
with an order of
acquittal
in an appeal by
special
leave.
In the result both these appeals fail and
are
dismissed.
Appeals dismissed.
M. S. SHERIFF
f/.
THE STATE OF MADRAS AND OTHERS.
[MEHR CHAND MAHAJAN C. J., MuKHERJEA,
S. R. DAs, VIVIAN BosE and GHuLAM HASAN JJ.]
CTiminal Procedure Code (Act V of 1898), s. 476B-Whether
appeal competent to the Suprenie Court from aT?_ order of Division
Bench of High
Court directing the filing
of a complaint
for
perjury.
Held that an appe~l 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 ord£narily, 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.
CRIMINAL
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
Aiyangar, with him)
(R. Ganapathy Iyer and
M. S. K.
for the appellant/petitioners .
•
S.C.R.
SUPREME COURT REPORTS
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.
Two persons, Govindan and Damodaran, filed petitions under section 491 of the Criminal Procedure Code
for release claimii;ig 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 Suh-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
1954
M. S. S"'7if/
v.
T!w State ef
Madras
and Othe1's.
Bose].
1954
M. S. Sheriff
v.
Th< State of
Madras
and Others.
Bose].
1146
SUPREME COURT REPORTS
[1954]
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-Inspectors
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 article 134
(1) and 372 of the Constitution was involved. The SubInspectors 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 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. ....... "
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
"subordinate" does not bear its ordinary
meaning.
It
1s
used as a term of art and has been given a 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.
. '
S.C.R.
SUPREME COURT REPORTS
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 appealable 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
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
ignores
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
we have to see to which court those
appeais
wia
"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 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
1954
M. 8. Shnif!
v.
The State ef
Madras
and Otlurs
B.,.J.
1954
M. S. Sheriff
v.
The State of
Madras
and Others.
Bose].
1148
SUPREME COURT REPORTS
[1954]
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
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
' .....
S.C.R.
SUPREME COURT REPORTS
1149
be given
precedence.
There is
some
difference of
opinion in the
High Courts of India on this point.
No
hard and fast rule can 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 forgotton
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
slide 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 near its end as to make it
inexpedient
to stay it in order to give precedence to a prosecution
ordered 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.
1954
M. S. Sheri.If
v.
The Stale of
Madras
and others.
Bose].