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Judgment
We think that the answer to the question referred for our decision must be in the affirmative.
In the case of Queen-Empress v. Srinivasulu Naidu 21 M.k 124 it was held by a Full Bench of this Court that where action was taken by a
Magistrate u/s 476 of the Code of 1882, such action was to be regarded not merely as the lodging of a com-plaint by the Magistrate but was a
proceeding which was tantamount to an ""order"" of the Court and was, therefore, subject to revision by the High Court u/s 439 of the Code.
The decision of this Court in the case of Eranholi Athan v. King-Emperor 26 M.k 98 proceeded on the ground that the Legislature in 1898, by
the addition of the words ""and as if upon complaint made and recorded u/s 200"" in Sub-section (2) of Section 476, intended to make it clear that
when action is taken under Sub-section (1), such action is not to be regarded as an order but merely as the lodging of a complaint.
We think that this view is erroneous.
The addition in Sub-section (2) appears to have been introduced in order to give Legislative effect to the decision of the Full Bench of the
Allahabad High Court in Ishri Prashad v. Sham, Lal 7 A.k 871 and in order to remove the doubts which previously existed as to whether an order
u/s 476 could be treated as a complaint within the meaning of Sections 190 and 195 (c), Criminal Procedure Code, and also as to whether the
Magistrate to whom the case was sent was bound u/s 200 to examine the complainant, i.e., the presiding officer of the Court upon oath. The
Allahabad High Court in the case referred to held that the order of the Court was a sufficient complaint within the meaning of Section 195"".
The words as if upon complaint made and recorded u/s 200 ""introduced in the Code of 1898 gave effect to this view, and at the same time
Section 200 was amended by having the words ""subject to the provisions of Section 476"" prefixed to it. The effect of the two amendments was
that the order of the Court under Sub-section (1) was to be regarded as a complaint and was to be treated as having been recorded u/s 200. [See
the judgment of Banerji, J. In re Bhup Kunivar 26 A.b 262
This being, as we think, the correct view to take of the addition made in the Code of 1898, there is no reason to attribute to the Legislature any
intention to alter the previously existing law as to the revisional powers of the High Court. If such an intention existed we think that so important a
change would have been effected directly by including orders u/s 476 among the orders which are declared by Section 435 (3) not to be
proceedings within the meaning of that Section and, therefore, not subject to revision by the High Court, or by some other express words. We may
add that the amendment made in 18.98 to Section 537 to the effect that no order of a competent Court shall be altered on appeal or revision on
account of any irregularity in proceedings taken u/s 476, unless it has, in fact, occasioned a failure of justice, implies that if it has, in fact,
occasioned such failure it is subject to appeal or revision.
For these reasons our answer to the reference made to us is that the High Court, as a Court of Revision, has power, u/s 439, Criminal
Procedure Code, to interfere, on grounds other than want of jurisdiction, when a Criminal Court has taken action u/s 476, Criminal Procedure
Code.