M. S. Sheriff vs The State Of Madras And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: 281 of 1951

Decision Date: 18 March, 1954

Coram: Vivian Bose, Mehar Chand Mahajan, B.K. Mukherjea, Ghulam Hasan

M. S. Sheriff versus the State of Madras and others was decided on 18 March 1954 by the Supreme Court of India. The judgment was authored by Justice Vivian Bose and the Bench comprised Justices Vivian Bose, Mehar Chand Mahajan, B. K. Mukherjea and Ghulam Hasan. The parties were styled as petitioner M. S. Sheriff and respondents the State of Madras and others. The Court recorded the date of judgment as 18 March 1954. The judgment citation appears as 1954 AIR 397 and 1954 SCR 1229, with additional citator references RF 1956 SC 391 (22) D 1961 SC 181 (5). The statutory provision at issue was section 476B of the Criminal Procedure Code (Act V of 1898), concerning whether an appeal to this Court is permissible from an order of a Division Bench of a High Court directing that a complaint for perjury be filed. The headnote of the decision states that an appeal under section 476B is indeed competent to the Supreme Court from such a High Court order. It further observes that when civil and criminal proceedings arise from the same factual matrix, the criminal case should normally take precedence and the civil case ought to be stayed unless special circumstances dictate otherwise.

The case proceeded under Criminal Appellate Jurisdiction as Case No. 281 of 1951. An appeal was taken under article 132 of the Constitution of India against the judgment and order dated 1 August 1951 issued by the High Court of Judicature at Madras in Criminal Miscellaneous Petitions Nos. 1261 and 1263 of 1951. Counsel for the petitioners, represented by K. Rajah Iyer together with R. Ganapathy Iyer and M. S. K. Aiyangar, appeared for the appellant, while counsel for respondent No. 2, H. J. Umrigar and S. Subramaniam, appeared for the second respondent. The judgment was pronounced on 18 March 1954, and Justice Bose delivered the opinion of the Court. The primary question presented was 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. In the factual backdrop, two individuals, Govindan and Damodaran, had filed petitions under section 491 of the Criminal Procedure Code seeking release on the ground that they were being unlawfully detained by two Sub-Inspectors of Police, who were the appellants before the Court. Govindan alleged detention by one Sub-Inspector, while Damodaran asserted detention by the other. Both Sub-Inspectors denied that the petitioners were in their custody. The first Sub-Inspector, concerning Govindan, affirmed that Govindan had never been arrested by him and had never been in his custody at any time. The second Sub-Inspector denied that Damodaran was in his custody; he conceded that he had arrested Damodaran once but claimed that Damodaran had been released well before the filing of the petition. Each Sub-Inspector executed an affidavit supporting his respective statement. Because the two sets of statements were inconsistent, the High Court directed the District Judge to conduct an enquiry into the matter.

Following the direction of the High Court, an enquiry was instituted in which a substantial amount of evidence was recorded and numerous documents were filed. After completing the investigation, the District Judge submitted a report in which he expressed the opinion that the statements made by the two Sub-Inspectors were correct. The High Court, however, examined the same material in great detail and reached the opposite conclusion, finding that the petitioners’ accounts were truthful and that the Sub-Inspectors’ statements were false. Subsequent to the filing of the petitions but before the High Court issued its order, both petitioners were arrested in the ordinary course of criminal procedure; one of them obtained bail from a Magistrate, while the other was ordered by the same Magistrate to remain in jail custody. Because of these arrests, the petitions could no longer be pursued and the High Court dismissed them as infructuous. After the dismissal, the petitioners returned to the High Court under section 476 of the Criminal Procedure Code, requesting that the Sub-Inspectors be prosecuted for perjury under section 193 of the Indian Penal Code. The High Court granted these applications and directed the Deputy Registrar to lodge the necessary complaints against the Sub-Inspectors. The Sub-Inspectors then applied for leave to appeal to this Court; the application for leave was initially refused on the ground that no statutory right of appeal existed, but leave was subsequently granted under article 132 because the matter required an interpretation of articles 134(1) and 372 of the Constitution. The Sub-Inspectors have now appealed against both the order refusing leave and the order made under section 476, and, as an additional precaution, they have filed a petition for special leave to appeal under article 136(1).

The first question that this Court must determine is whether the Sub-Inspectors possess a statutory right of appeal. That determination depends on the true construction of section 476B of the Criminal Procedure Code read together with section 195(3). Section 476B provides that “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).” Section 195(3) further states that, for the purpose of that provision, “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 remaining portions of section 195(3) are not relevant to the present issue. From these provisions two observations follow. First, section 476B expressly confers a right of appeal provided that a higher forum exists to which the appeal may be made. Second, the statute designates that higher forum in a technical and artificial manner. The appeal is to be lodged with the court to which the former court is “subordinate” as defined in section 195(3). The term “subordinate” does not carry its ordinary meaning; instead it is employed as a term of art, given a special meaning by the definition in section 195(3). This creates a legal fiction by the use of the word “deemed.” Consequently, the Court must examine the content of that fiction. The provision declares that the court making an order under section 476 shall be deemed subordinate to the court (a) to which appeals ordinarily lie, and (b) …

In the present matter the court that rendered the original order was a Division Bench of the High Court. Under the statutory scheme, an appeal from the decree or sentence of a Division Bench of a High Court may normally be taken only to the Supreme Court, which is the court to which appeals ordinarily lie from such a bench. Consequently, for the purposes of section 195(3) the Division Bench is treated as a court “subordinate” to the Supreme Court. Accordingly, an appeal under section 476 from an order of that Division Bench is directed to the Supreme Court.

The respondents argued that there is no ordinary right of appeal to the Supreme Court because the constitutional right of appeal is confined to a very limited set of circumstances and therefore cannot be described as “ordinary.” The Court rejected that contention, observing that the argument focused solely on the word “ordinarily” while ignoring the phrase “appealable decrees or sentences.” Before applying the definition in section 195(3) the Court first examined whether any class of decrees or sentences issued by the Division Bench is open to appeal at all. If none were appealable, the provision would be inoperative and no right of appeal under section 476 would exist. However, the Court found that the decrees and sentences of a Division Bench are indeed appealable, and that the only court to which such appeals ordinarily lie is the Supreme Court. Hence, the appellate route is clear.

Having established the existence of a right of appeal, the Court turned to the merits of the application. The sole question on the merits was whether it was “expedient in the interests of justice” to order an inquiry and to lodge a criminal complaint. This required a careful balancing of multiple factors. The High Court had examined the evidence in great detail and had identified sufficient material on which a reasonable judicial mind could conclude that a criminal investigation was warranted and that it was expedient in the interests of justice to pursue such an inquiry. The Supreme Court did not re-examine the evidence itself and expressed no opinion on the substantive merits of the cases. After a careful reading of the High Court’s judgment and the report of the District Judge, the Court found no reason to disturb the High Court’s discretion in this regard. The Court expressly refrained from commenting further on the merits so as not to prejudice either side. The learned Judges of the High Court, in their order under section 476, had also rightly noted that they were not expressing any opinion on the guilt or innocence of the appellants.

The Court clarified that it was not expressing any opinion on the guilt or innocence of the appellants. During the hearing the Court was informed that two additional sets of proceedings, arising from the same facts, were pending against the appellants. One of those sets consisted of two civil suits seeking damages for wrongful confinement, filed by persons alleging unlawful detention by the police. The other set comprised two criminal prosecutions under section 344 of the Indian Penal Code for wrongful confinement, each charge being directed against a Sub-Inspector. It was argued by counsel that pursuing these matters simultaneously would cause significant embarrassment to the accused and interfere with a fair trial. After the hearing of the appeal the Court received information that the two criminal prosecutions had been closed, with liberty to file fresh complaints when the necessary papers were ready. The closure was attributed to the unavailability of High Court records on the application of the accused at that time. Since those criminal prosecutions were no longer pending, the objection concerning them did not arise in the present proceedings. Nevertheless, the Court observed that the simultaneous existence of the present criminal proceedings, which formed the subject of this appeal, and the civil suits would still embarrass the accused. Consequently the Court needed to decide which of the pending matters should be stayed in order to avoid further embarrassment of the accused. The Court expressed the view that, between the civil and criminal proceedings, the criminal matters should be given precedence. It noted that Indian High Courts have expressed differing opinions on this point and that no hard and fast rule could be laid down. The Court further held that the possibility of conflicting decisions in civil and criminal courts was not a relevant consideration. Law recognizes that a decision of one court is not binding on another except for limited purposes such as sentencing or assessing damages. Accordingly the only material factor considered by the Court was the likelihood of embarrassment to the accused arising from parallel proceedings. Another consideration was that civil suits commonly extend for many years, and it would be undesirable for a criminal prosecution to be delayed until public memory faded.

The public interest, the Court observed, demands swift and certain criminal justice, punishment of the guilty while events remain fresh, and early absolution of the innocent as a fair trial permits. The Court also warned that allowing matters to linger could cause memories to grow dim, making reliable evidence harder to obtain. Nevertheless the Court stressed that this was not a rigid rule and that special circumstances in a particular case might justify a different approach. For example, if a civil case or another criminal proceeding were near its conclusion, it might be inexpedient to stay it in order to give precedence to a prosecution under section 476. In the present case, however, the Court concluded that the civil suits should be stayed until the criminal proceedings have been completed. Accordingly the appeal was dismissed without any order as to costs, leaving the parties to bear their own expenses. The civil suits, numbered 311 of 1951 to 314 of 1951, pending in the Court of the Subordinate Judge, Coimbatore, were ordered to be stayed until the conclusion of the prosecution under section 193 of the Indian Penal Code.

In this matter the Court directed that the civil suit pending before the Judge at Coimbatore would remain stayed until the criminal prosecution that is being conducted under section 193 of the Indian Penal Code reaches its conclusion. The Court observed that the plaintiffs who are instituting the civil suit are also parties to the present proceedings, and therefore it found no difficulty in granting such a stay. On the basis of that observation the Court dismissed the petition seeking special leave to appeal. The Court also dismissed the appeal itself, indicating that the appeal would not be allowed to proceed. Finally, the Court reiterated that the petition for special leave was dismissed, confirming that no special permission to appeal would be granted. No order regarding costs was made in connection with these dismissals.