# KULDIP SINGH v. THE STATE OF PUNJAB AND ANOTHER

- **Citation:** [1956] 1 S.C.R. 125
- **Court:** Supreme Court of India
- **Decided:** 1956-02-15
- **Case number:** Criminal Appeal No. 34 of 1955
- **Bench:** VIVIAN BosE, Jagannadhadas, B. P. Sinha, Jafer Imam, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kuldip-singh-v-the-state-of-punjab-and-another-1289
- **Pages:** 18

## Headnote

Complaint by Oourt-Oomplaint 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-Gode of Criminal
Procedure (Act V of 1898), ss. 195 (8), 476, 476-A, 476-B, 489-The
Punjab Courts Act (VI of 1918), ss. 18, 21-0ode of Civil Procedure
(Act V of 1908), s. 115.
The question as to which Court is competent to make a com·
plaint under s. 476-A read withs. 195(3) of the Oode of Criminal
Procedure where none was 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 con·
templated by s. 195(3) of the Code, apart from such exception!' as
may be made in respect of any particular matters by any spe~ 'al
notifications or laws. Where, however, appeals ordinarily Iii\ ..,
different courts, the one of the lowest grade will be the Court c~
patent to make the complaint.
Wadero Abdul Rahman v. Sadhuram, ([1930) 32 Cr. L.J.1012J
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 .. 4 76-A of the Code of Criminal ProceduTe and the Additional
17
1956
February 15
1956
l<uldiP Sing!&
v.
The State of
Punjab
and anothct'
126
SUPREME COURT REPORTS
[1956)
Judge, liy wrongly describing himself as an Additional District
Judge, could not assume a jurisdiction which he did. not possess
under those sections.
The High Conrt 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 Procednre,
therefore, it was not necessary to decide under Art. 136 of the Con·
stitution which of these two sections applied in the present ca.se, 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. 195(3) of
the Code of Criminal Procedure and could not, therefore, make the
complaint of its own authority and should have remitted the appli·
cation to the District Judge.for disposal according to law.

## Text

S.C.R.
SUPREME COURT REPORTS
125
KULDIP SINGH
v.
THE STATE OF PUNJAB AND ANOTHER.
[VIVIAN BosE, JAGANNADHADAS, B. P. SINHA,
JAFER IMAM and CHANDRASEKHARA AIYAR, JJ.]
Complaint by Oourt-Oomplaint 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-Gode of Criminal
Procedure (Act V of 1898), ss. 195 (8), 476, 476-A, 476-B, 489-The
Punjab Courts Act (VI of 1918), ss. 18, 21-0ode of Civil Procedure
(Act V of 1908), s. 115.
The question as to which Court is competent to make a com·
plaint under s. 476-A read withs. 195(3) of the Oode of Criminal
Procedure where none was 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 con·
templated by s. 195(3) of the Code, apart from such exception!' as
may be made in respect of any particular matters by any spe~ 'al
notifications or laws. Where, however, appeals ordinarily Iii\ ..,
different courts, the one of the lowest grade will be the Court c~
patent to make the complaint.
Wadero Abdul Rahman v. Sadhuram, ([1930) 32 Cr. L.J.1012J
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 .. 4 76-A of the Code of Criminal ProceduTe and the Additional
17
1956
February 15
1956
l<uldiP Sing!&
v.
The State of
Punjab
and anothct'
126
SUPREME COURT REPORTS
[1956)
Judge, liy wrongly describing himself as an Additional District
Judge, could not assume a jurisdiction which he did. not possess
under those sections.
The High Conrt 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 Procednre,
therefore, it was not necessary to decide under Art. 136 of the Con·
stitution which of these two sections applied in the present ca.se, 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. 195(3) of
the Code of Criminal Procedure and could not, therefore, make the
complaint of its own authority and should have remitted the appli·
cation to the District Judge.for disposal according to law.
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 Crimi-.
na.l Procedure Code. The question is a.bout 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
S.C.R.
SUPREME COURT REPORTS
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
suspicious 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 beforeit could be heard Mr. Augustine was transferred and it seems that no Subordinate
Judge of the first class was appointed in bis plaee;
instead, Mr. K. K. Gujral, a SubordinateJudgeofthe
fourth class, was sent to this area and he seems to
have been asked to decide the matter.
But as he
was only a Subordinate Judge ofthe fourth class he
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
1956
Kuldip Sing11
v.
The State of
Punjab
and another
BoseJ.
1956
Ku/dip Singh
v.
The State of
Punjab
and another
Bose}.
128
SUPREME COURT REPORTS
[1956]
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 heard 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 i~ 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 Aot, 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. BarlQw, a Subordinate Judge of the first class.
It seems to have been accepted that Mr. Gujral was
not Mr. Barlow's successor because he 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 he had no jurisdiction;
so also neither Mr. Barlow nor Mr. Augustine made a
complaint or rejected the application.
Th~t carries
•
S.C.R.
SUPREME COURT REPORTS
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 writing and forward it to a Magistrate
of the first class having jurisdiction. That was done
by Mr. Pi tam Singh. So the only question we have
to decide on this part of the case is whethe'r 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 shiill be deewed to be
subordinatei and
1956
KuldiP Singh
v.
The Slate of
Punjab
and another
Bose],
1956
K11ldiJ> Singh
v.
The Stale of
Pr1"fab
and another
BoseJ.
130
SUPREME COURT REPORTS
[1956)
(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(') 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 d-0 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
theinferior 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(").
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.I\. 1961Mod.1060, 1061.
•
S.C.R.
·SUPREME COURT REPORTS
131
are appealable at ail. 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 hive 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 he 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.
19$6
K uldip Sing1'
v.
The Stat~ of
Punjab
and another
Bose}.
1956
l{uldip Singh
v.
The State of
Ptfnfab
and another
BoseJ.
0
132
SUPREME COURT REPORTS
[1956]
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 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
S.C.R.
SUPREME COURT REPORTS
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 vhis is a purely objective analysis 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 because 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 (h) 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(~) 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 l [1954] S. C. R. 1144, 1147.
18
'
1956
Kuldip Singh
v.
The State of
Punjab
and another
BoseJ,
1956
K uldip Singh
T,
The Stat. of
Ptmjab
an4 anolh~,.
BoseJ.
134
SUPREME COURT REPORTS
[1956]
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 its elf.
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 otl:ier States are differently worded so
that what we decide for the Punjab may not hold
good elsewhere.
We say this because rulings were
cited before us from other parts 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:
"(l) 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 snits, namely:-
Class I-Subordinate Judges exercising juris-
S.C.R.
SUPREME COURT REPORTS
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
exermsmg
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 hereinbefore defined for
the class to which he is appointed within the local
limits of the ci vii 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 t.he 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 di11trict 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 jurisdic tions 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
1956
Kuldij> Singh
v.
The State of
Punjab
and a not her
BoseJ.
795G
Kuldip Singh
The State oj
Punjab
tmd a'fOllJer
136
SUPREME COURT REPORTS
[1956]
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
Oourt, 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 he 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
-
S.C.R.
SUPREME COURT REPORTS
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 origina.1 tribunal though,
owing to territorial or other similar classificittion not
affecting inherent jurisdiction, the case should hav:e
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 t, where it is said in paragraph 2---
"lt 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-
"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 be deemed to be a Distrfot 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 Subordi1956
KuldiP Singh
v.
The State of
Punjab
and another
Bose J.
1956
Ktllaip Singh
v.
TheStaU of
P11njab
and anothcf'
Bos<J.
138
SUPREME COURT REPORTS
(1956]
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
S.C.R.
SUPREME COURT REPORTS
139
and Courts established under other enactments,
"there shall be the following classes of Civil
Courts, wunely:·-
·
(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.
"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(1) 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 DistrictJud,ge 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
..
1956
Kuldip Singh
v.
The State of
Punjab
and another
BoseJ,
1956
Kuldip Singh
v.
The State of
Punjab
and another
BoseJ.
140
SUPREME COURT REPORTS
[1956]
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_jf 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 single
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.
S.C.R.
SUPREME COURT REPORTS
141
Mr. Kapur's order went up to the High Court in
revision, and the next question we have to deter-·
mine is whether the High Court had jurisdiction to
entertain the revision and the extent of its powers.
Keshardeo Chamria v. Radha Kissen Chamria and
Others(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
1956
Kuldip Singh
v.
The Stale of
Punjab
and anothel'
BoseJ,
1956
K uldip Singh
v.
The State of
Prmiab
and another
BoseJ.
142
SUPREME COURT REPORTS
(1956]
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
compfaint. 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 High 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 a.llow 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 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
primafacie 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.