D.A. Rathnaswamy Pillai vs Rajaratnam Pillai

Horwill, J.—A number of illegal and improper orders have been passed as a result of the proceedings arising out of a petition filed by the

respondent requesting the Sub-Magistrate, Trichinopoly, to make a complaint u/s 211, Indian Penal Code.

The Sub-Magistrate considered the petition and preferred a complaint to the Sub-Divisional Magistrate, Trichinopoly. The Sub-Divisional

Magistrate, Trichinopoly, instead of taking the . case on file, as he was bound to do u/s 476 (2) of the Code of Criminal Procedure, said that he

was not satisfied with the proceedings of the Sub-Magistrate and ordered him to make some further inquiries. About the same time, the respondent

took the matter in appeal u/s 476-B, Criminal Procedure Code, to the District Magistrate. Instead of disposing of the matter himself, as he should

have done, the District Magistrate sent it to the Sub-Divisional Magistrate, the very officer to whom the complaint had been made. The Sub-

Divisional Magistrate then committed a further illegality by forwarding the appeal to the Sub-Magistrate in continuation of his previous order.

Finally, the petitioner approached the District Magistrate in revision against the order of the Sub-Divisional Magistrate contending very rightly that

the Sub-Divisional Magistrate had no jurisdiction to pass the order he did. The District Magistrate had no power to interfere in revision; but he

rejected it under the misapprehension that Koduru Janardana Rao Vs. Prattipaty Lakshmi Narasamma, . was an authority for the position that the

Sub-Divisional Magistrate to whom the complaint was given did have the power that he purported to exercise.

Section 476, Criminal Procedure Code, which empowers the Court to make a complaint to the nearest First Class Magistrate having

jurisdiction, lays down the procedure to be adopted and says that after such preliminary inquiry, if any, as it thinks necessary, it shall record a

finding and may make a complaint. u/s 476 (1) it is the Court which considers the question whether it shall lay a complaint or not that has to be

satisfied whether it is expedient in the interests of justice that an inquiry should be made; and it gives to that Magistrate complete discretion whether

to conduct the preliminary inquiry or not. When once the complaint is sent to the Magistrate having jurisdiction, he must proceed u/s 476 (2),

which says that such Magistrate shall thereupon proceed according to law as if upon complaint made u/s 200. That it is for the Magistrate making

the complaint to consider whether it is in the interests of justice to make a complaint and not the Magistrate to whom the complaint is made, is clear

from the section itself, and this has been laid down in In Re: Raja Rao alias Vidiachar and Another, . The person against whom a complaint is made

is not without a remedy; but that remedy does not lie in the Court of the Magistrate to whom the complaint is made, but in the Court to which

appeals ordinarily lie from the Court which lays the complaint. The appellate Court has then to consider the same questions as the complaining

Court; and it may thereupon exercise its discretion and direct the withdrawal of the complaint or itself may make a complaint. If it thinks that further

enquiry is necessary, it may order it. The ordinary appellate Court would be, in this case, that of the District Magistrate. Although the District

Magistrate has power in certain cases to delegate his appellate powers to Sub-Divisional Magistrates, he had no such authority in this case.

Section 407, which deals with the delegation of appellate powers, says in the first sub-section ""any person convicted on a trial held by any

Magistrate of the Second or Third Class...may appeal to the District Magistrate."" Sub-section (2) says that appeals under Sub-section (1) may be

delegated by him to any Magistrate of the First Class Subordinate to him and empowered by the Local Government to hear such appeals. The

appeal in this case was one u/s 476-B, Criminal Procedure Code and not u/s 407 (1), so that the District Magistrate in this case had no power to

send the appeal to the Sub-Divisional Magistrate for disposal.

When the petitioner went in revision to the District Magistrate, the District Magistrate dismissed the revision application saying that the Full

Bench decision in Koduru Janardana Rao Vs. Prattipaty Lakshmi Narasamma, . was an authority which negatived the contention of the petitioner

that u/s 476 (2) the Magistrate to whom the complaint was made had no power to consider whether the complaint was properly made. This case

merely deals with the powers of the appellate Court and not of the Court to which the complaint is made.

The petition is allowed. The order of the District Magistrate sending the appeal of the respondent to the Sub-Divisional Magistrate, the first

order of the Sub-Divisional Magistrate directing the Sub-Magistrate to make further inquiry into the matter, and the second order of the Sub-

Divisional Magistrate directing the Sub-Magistrate to dispose of the appeal in accordance with his previous orders, are all set aside. The District

Magistrate will proceed to dispose of the appeal preferred by the respondent. The Sub-Divisional Magistrate will exercise only such powers as are

given to him u/s 476, Criminal Procedure Code.