Sami Vannia Nainar and Another vs Periaswami Naidu and Another

Devadoss, J.—This is an application to revise the order of the District Judge of South Arcot declining to interfere with an order u/s 476,

Criminal Procedure Code, passed by the District Munsif of Vridhachalam. Mr. Jayarama Aiyar''s contention is that the learned District Judge had

no jurisdiction to take additional evidence in a matter coming up u/s 476(b). The District Judge allowed an affidavit of the respondent''s vakil to be

filed before him and has relied mainly upon the affidavit in his judgment. It was held by a Bench of this Court in Krishna Reddi v. Emperor ILR

(1909) M. 90 : 20 M.L.J. 102 that a superior Criminal Court acting u/s 195 of the Criminal Procedure Code against the order by an inferior

Criminal Court granting sanction had no power to take or call for further evidence. Section 195 has been amended and Section 476 empowers a

Court, Civil, Revenue or Criminal, to forward a complaint to a Magistrate of the first class for inquiry into an offence which, it has reason to hold,

has been committed before it. u/s 476(b) an Appellate Court has power to withdraw the complaint or to direct a complaint to be filed when the

lower Court declines to prefer a complaint. The decision in Krishna Reddi v. Emperor ILR (1909) M.102 applies to a case coming u/s 476(b), for

the section of the Criminal Procedure Code, which empowers the Appellate Court to take evidence, that is, Section 428, has no application to

proceedings u/s 476(b).

The learned District Judge says that the affidavit was not objected to as if that was a ground for his relying upon it. Whether the petitioners'' vakil

objected to the reception of the affidavit or not, it is immaterial if the Court had no jurisdiction to receive the affidavit as evidence in an appeal

against an order of the District Munsif u/s 476.

It is strongly urged by Mr. Patanjali Sastri for the respondents that this is a matter more than three years old and that I should not interfere in

revision with the order of the District Judge, even though he acted without jurisdiction. The fact that the offence was committed more than three

years ago is a matter for consideration by the District Judge. It is sufficient to remark here that the order of the District Munsif is very

unsatisfactory. He says in paragraph 6:

I think that the production of this document is due only to carelessness and not to any deliberate fraudulent intention.

It is difficult to see how it could be said when a party to a suit presented a document and relied upon it that he did so owing to gross

carelessness. It was open to the District Munsif to have refused to take action u/s 476 for other reasons than the reasons he has given. Seeing that

the District Judge has acted without jurisdiction in receiving an affidavit in evidence and relying upon it, I set aside his order and direct him to

restore the petition to file and dispose of it according to law. Petitioner is entitled to costs in this Court.