1984 P Cr (PLP)

3. The petitioner has challenged the legality of the order on the following grounds: - (i) That the order of civil Court was not subject to appeal before the Sessions Judge; (ii) that the order of suspension of execution of detention was without awful authority and jurisdiction ; (iii) that in case memorandum of appeal is deemed to have been filed before the District Judge, it is without authority, as such unattend able, and (iv) that the order of Sub-Judge was valid so much so not likely to be interfered in any manner.

4. The controversy raised in the petition, primarily, confines to the question of jurisdiction. The word, `jurisdiction' means, `legal authority extent of power; declaration of the law. Jurisdiction may be limited either locally, as that of a country Court, or personally, as where a Court A has a quorum, or as to amount, or as to the character of the question to be determined, as defined in Wharton's Law Laxicon. Bindra, in his book. `Interpretation of Statutes and General Clauses Act'. Third Edition, 1961. dealing with the word, "jurisdiction", says that the word "jurisdiction',' means: - "that authority by which the judicial Officers take cognizance of and decide causes ; `the authority to hear and decide a legal contro versy'; the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them' ; `the power to hear, determine and pronounce judgment on the issues before the Court' ; `the power or authority which is conferred upon a Court by the Legislature to bear and determine causes between parties and to carry the judg ments into effect the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execu tion." It is well-accepted that the Courts of the country are the creature of the statutes. The civil actions are exclusively cognizable by civil Courts, whereas penal actions are triable by criminal Courts. The classification of civil Courts is given in the Code of Civil Procedure, whereas the cate gories and classification of Criminal Courts are contained in the Code of Criminal Procedure. Both the Civil and Criminal appellate jurisdiction is equally defined in respective Codes. In addition to that, the power and sphere of jurisdiction of Civil and Criminal Courts, including appellate Courts, has been elaborately explained in the Courts and Laws Code Act, 1949. Section 36 of the Courts and Laws Code Act postulates the scope on appellate jurisdiction and describes that an order or decree of Sub

Judge shall be appealable before the District Judge and High Court. Section 41 provides that orders and judgments of Magistrates, recorded in exercise of criminal jurisdiction, shall be subject to revisional and appellate jurisdiction of the Court of Sessions Judge and High Court. Thus, an order or decree recorded in a civil action, was exclusively appealable before a District Judge and High Court. S. In view of distinct and independent jurisdiction of civil and criminal Courts, a civil Court is not permitted to act in criminal action. Likewise, the Court of criminal jurisdiction is not allowed to act in a civil action. It is well-accepted that if the Court had no jurisdiction over the subject-matter, or the litigation, its judgment, or order, however precisely, certain and technically correct, is a nullity. Such an order of judgment is not only voidable but void ab initio. This is so as such an order is recorded by a Court suffering from inherent want of jurisdiction. In other words, an order recorded in usurpation of jurisdiction is, obviously, an absolute nullity.

6. It is undisputed between the parties that the learned Sub-Judge recorded the order of detention in a civil action, in exercise of statutory jurisdiction. The order was passed in exercise of powers under Order XXXIX, rule 2 (iii), C. P. C. It is true that an order passed under Order XXXIX, rule 2 (iii), C. P. C. was appealable, but such an appeal, undoub tedly, lay before the District Court. Raja Lehrasap Khan, the learned counsel for the respondents, accepts this legal position. In the present case, the respondents who lodged their appeal through counsel, fall in error by filing the memorandum of appeal in the Court of District and Sessions Judge. The apparent error was open to rectification provided it would have confined to such a mistake. But the fact remains that the Presiding Officer unmistakably took cognizance of memorandum of appeal as an appeal before the Sessions Judge and applied his mind to the proposi tion raised before him in such capacity and thereafter recorded the order of suspension of exectition of detention as Sessions Judge. The action of prosecuting the appeal in the Court of Sessions Judge, is supported by attending circumstances in the manner as the power-of-attorney, bail bonds and personal bonds of respondents were furnished in the Court of Sessions Judge. The position was even accepted by Raja Lehrasap Khan, the learned counsel for the respondents, who frankly conceded that the memorandum of appeal alongwith the application for suspension of execu tion of detention, were lodged in the Court of Sessions Judge and the Presiding Officer equally acted in exercise of criminal jurisdiction, as it reflected from the impugned order. .

7. The objection raised in the petition finds further support from the following facts: - (i) that the respondents impleaded the State as respondent instead of the petitioner. This was done despite the fact that the petitioner was entered as party in the impugned order, passed by the Sub. Judge; (ii) that the memorandum of appeal was signed by the counsel by virtue of power-of-attorney. The power-of-attorney was not signed by the respondents as it contained the signature of son of respondent No. 1 and father of respondent No.

2. This shows that the son and father of respondents, respectively signed the power-of- attorney to seek release of the detenu as in case of detention in criminal action where anybody could move the Court for release of a detenu. Conversely, no third person or stranger except the judgment-debtor or an aggrieved person was authorised to appoint a counsel for presentation and prosecution of civil appeal. In case it is held that the respondents addressed the appeal to District Judge and by inadvertance entered the word, `Sessions' their appeal, obviously, fails for lack of authority.

8. As in the instant case the order of detention in civil prison recorded by the Sub-Judge, was discharged by the Sessions Judge who absolutely had no jurisdiction to do so, the impugned order, therefore, suffers from inherent want of jurisdiction. It is obviously an absolute nullity.

9. In view of the aforesaid position of the case, the objection raised by the learned counsel for the petitioner, prevails. The petition is allowed and the order passed by the Sessions Judge is set aside. S. G. D. Petition allowed.