Kesharinandan Ramani vs Emperor

The appellant Kesharinandan moved this Court against an order of the District Magistrate directing his prosecution for an offence u/s 193, Indian Penal Code, passed in an appeal from the order of the Sub Deputy Magistrate of Patna City refusing to take action under the provisions of Section 476, Criminal Procedure Code. Upon the appeal being placed for final hearing before a Judge of this Court, a preliminary objection was taken on behalf of the Crown that the appellant ought to have appealed to the Sessions Judge before coining to this Court. The objection was apparently based upon the decision of this Court in Ranjit Narain Singh and Others Vs. Rambahadur Singh and Others, which was followed in Narayan Meher Vs. Dhana Meher, . It was brought to the notice of the learned Judge before whom this objection was taken that this view of the law had been dissented from in almost every other High Court in India, where upon he referred the case to a Division Bench, which, in view of the importance of the question involved, have referred the matter to this Full Bench.

Before dealing with the cases which cluster round the section, it is necessary to read and consider the relevant sections themselves. Section 476 is a general section which gives the Court (civil, criminal or revenue) the right to take action against any person where the Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, and it also empowers such a Court, after any preliminary inquiry which it may deem fit to make and after recording a finding to the effect that it is expedient in the interests of justice to do so, to make a complaint in writing as provided in the section. It is important to note that the concluding words of the section, which have given rise to some confusion, are that after a complaint has been made, the Court

shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate, or, if the alleged offence is non-bailable, may send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate.

When this has been done, the person aggrieved by a complaint being ordered to be made against him or the person on whose application the Court has refused to make a complaint is given a right to appeal to the higher authority under the provisions of Section 476B. That section is very clearly worded. It says that:

Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate and the superior Court may thereupon direct the withdrawal of the complaint or itself make the complaint which the Subordinate Court might have made u/s 476, and if it makes such complaint, the provisions of that section shall apply accordingly.

(to quote only the relevant words in the section). The last provision in this section underlined [here italicized--Ed.] above has been taken by this Court, in the decisions under consideration, to mean that the person against whom the complaint is made by the Appellate Court has further the right to appeal u/s 476-B. In our opinion this is not the meaning. The words clearly mean that after a complaint is made on appeal, the procedure to be followed in forwarding the complaint and the accused and in taking recognizance from a witness shall be as laid down in Section 476. This matter appears to us to be very clear and but for the decisions of this Court which we now proceed to consider, it would be difficult to conceive that any other interpretation could be put on it. The first decision of this Court on this point is in Faujdar Rai Vs. Emperor, where a Single Judge of this Court dealt with the matter which arose before the Revenue Courts in this way. A Collector acting as a Revenue Court had set aside an order of the Sub-Deputy Collector refusing to make a complaint against the petitioner in that case and himself directed the filing of a formal complaint. Thereupon, the petitioner in that case appeared before the Commissioner and presented an appeal. The Commissioner refused to entertain the appeal on the ground that no second appeal lay to him. Against that order the High Court was moved and the learned Judge, who decided that case, held that the Collector acting as a Revenue Court was subject to the superintendence of the High Court and that his order was revisable u/s 115, Civil Procedure Code. He also held that the High Court had jurisdiction to interfere u/s 107 of the then Government of India Act, and inasmuch as the Collector had refused to apply his mind to the evidence which was in favour of the petitioner, the High Court held that the Collector had refused to exercise the jurisdiction vested in him and, therefore, set aside the order acting u/s 115, Civil Procedure Code, as well as u/s 107, Government of India Act. Towards the end of the judgment there is a paragraph which states that:

Under Section 476B, Criminal Procedure Code, it appears that when an Appellate Court sets aside the order of the original Court, the party prejudicially affected has a right of appeal to the Court to which appeals from that Appellate Court ordinarily lie.

This was entirely obiter dictum and not at all necessary for the decision of that case, which was indeed decided upon its own facts. The other cases which are referred to in the referring order are an authority for the proposition that a first appeal will lie again from an Appellate Court''s order u/s 476-B when it directs the filing of a complaint on reversing the refusal of the first Court. As indicated above, in our opinion, this view is wrong. The crux of the matter is very clearly set out in the judgment of the Calcutta High Court in Ahamadar Rahman Vs. Dwip Chand Choudhury and Another, where Rankin, C.J. has dealt with the question exhaustively, and with great respect we adopt that decision. In our view it was never the intention of the Legislature to provide two first appeals; the language used by the Legislature gives no warrant for the contrary view. The decisions of the other High Courts in Hikmatullah Khan Vs. Mt. Sakina Begum and Others , Moideen Rowthen v. Miyassa Pulavar 51 M 777 : 111 Ind. Cas. 114 : AIR 1928 Mad. 506 : 29 Cri.LJ 786 : 55 MLJ 444 : 28 LW 134 : 10 AI Cr.R 480 Emperor Vs. Govind Hari Prabhu Mirashi, , Ma On Khin v. N.K.M. Firm 5 R 523 : 105 Ind. Cas. 457 : AIR 1927 Rang. 313 : 28 Cr.LJ 937 and Muhammad Idris v. Emperor 5 R. 523 : 105 Ind. Cas. 457 : AIR 1927 Rang. 313 : 28 Cr.LJ 937 are also to the same effect.

We, therefore, answer the reference in these terms, that the decisions of this High Court reported in Ranjit Narain Singh and Others Vs. Rambahadur Singh and Others, and Narayan Meher Vs. Dhana Meher, were wrongly decided, that the appellant has no right to prefer an appeal against the order of the District Magistrate passed u/s 476B, Criminal Procedure Code. This appeal will now be treated as an application in revision and will be heard by a Single Judge of this Court in the ordinary course.