Vithoba Bala vs Goval Prasad Rangilal

Mudholkar, J.—The applicant had made a complaint to the police against the non- applicant and three others in respect of an offence u/s 462, Penal code. A challan was put up by the police against these persons, but later on the case was withdrawn by them.

Thereafter the non-applicant made an application to the trying Magistrate u/s 476, Criminal P.C. for making a complaint against the applicant in respect of an offence u/s 211, Penal Code. The Magistrate rejected the application on three grounds. The first of these grounds was that there was nothing to show that the challan was withdrawn because the complaint upon which it was based was found to be false. The second ground was that the applicant had no opportunity to prove the truth of his allegations. The third ground was that the challan was withdrawn at a very early stags before any evidence was recorded. The non. applicant then preferred an appeal u/s 476-B, Criminal P.C. before the Additional District Magistrate.

The learned Additional District Magistrate was of the view that the view taken by the trying Magistrate regarding his power to make a complaint was erroneous and so he remanded the case to him for recording evidence and for making further inquiry.

The main point taken by the learned Counsel for the applicant is that the Additional District Magistrate had no jurisdiction to remand the case for further inquiry. In support of this contention he relies on the terms of Section 476-B, Criminal P.C. The learned Counsel for the non-applicant relies on the decisions in A. T. Krishnamachari v. Emperor A. I. R 1933 Mad. 767 : 35 Gr. L.J. 503 Janardana Rao v. Laksmi Narasamma A. I. R 1931 Mad. 62 : 35 Cri. L.J. 392 and Vithoo Baghoji v. Emperor A. I. R 1938 Nag. 487: 40 Cri. L.J. 388 and argues that the appellate Court has power to remand a case for further inquiry,

In A. T. Krishnamachari v. Emperor AIR 1933 Mad. 767 : 35 Cri. L.J. 503 the learned Judges say that Section 476-B, Crimi. nal P.C. is not exhaustive of the powers of an appellate Court and that an appellate Court has power to remand a case. While I agree with the former proposition I am afraid I cannot agree with the latter, in support of which no reason even is given.

In Janardana Baa v. Laksmi Narsam-ma A. I. R 1934 Mad. 52 : 35 Cri. L.J. 392 the learned Judges say that an appellate Court has power u/s 423 (1)(c) and (d) to remand a case for further inquiry. Neither Clause (0) nor Clause (d) seems to confer such power on the appellate Court. The former gives power to the appellate Court to "alter or reverse" an order, while the latter gives the appellate Court power to "make any amendment or any consequential or incidental order that may be just or proper". An order of remand of the nature contemplated by the learned Judges does not, clearly, fall under Clause (o), nor, again, can it fall under Clause (d) as it is neither a consequential nor an incidental order With great respect to the learned Judges I am, therefore, unable to accept their view.

As regards the decision in Vithoo Baghoji v. Emperor A. I. R 1938 Nag. 487 : 40 Cri. L.J. 388 there is apparently a misconception on the part of counsel. In this case it has nowhere been stated that an appellate Court can remand case for taking additional evidence or for making further inquiry, nor did this question at all arise. All that ia said by Grille 0. J. who decided the case is that an appellate Court can remand a case for making a complaint, which is quite another matter.

It seems to me to be plain from the words of Section 476-B, Criminal P. 0,, that the only powers which an appellate Court has in an appeal from an order u/s 476 are to withdraw a complaint or to make a complaint or to direct the Court from whose order the appeal had been preferred to make a complaint. the only other provision which applies to an appeal u/s 476-B ia Section 423, Criminal P.C. as I have already said, that section does not entitle the appellate Court to pass an order of remand.

For these reasons I allow the application for revision and set aside the order of the Additional District Magistrate.