Wassoodew, J. This is a reference by the Sessions Judge of West Khandesh for revising under the provisions of s. 439 of the Criminal Procedure Code the order passed by the Assistant Judge of West Khandesh setting aside the order of the First Class Subordinate Judge of Dhulia in proceedings under s. 476 of the Criminal Procedure Code directing the prosecution of the appellant Bhatu Sadu Mali for using as genuine a forged document, namely, a receipt purporting to acknowledge payment of Rs. 100-0-3, in a civil suit—an offence punishable under s. 471 of the Indian Penal Code. The learned Sessions Judge has recommended that this Court should restore the order of the First Class Subordinate Judge.

Notice was issued to the appellant, but he has not appeared either personally or through advocate.

The learned Government Pleader at our request has argued the question whether this Court can revise the order of the Assistant Judge upon a reference by the Sessions Judge who had called for the record and proceedings from that Court under s. 435 of the Criminal Procedure Code.

Section 435 of the Criminal Procedure Code enables a Sessions Judge “to call for and examine the record of any proceedings before any inferior criminal Court.” Having regard to the enumeration of the classes of criminal Courts in s. 6 of the Criminal Procedure Code, the question is whether an Assistant Judge hearing an appeal from an order for prosecution under s. 476B was an inferior criminal Court. The First Class Subordinate Judge in the proceedings for sanctioning the prosecution was not performing the functions of a criminal Court. The power of the Assistant Judge to hear the appeal was derived from the provisions of s. 476B read with s. 195(3) of the Criminal Procedure Code. The subordination of the First Class Subordinate Judge to the Assistant Judge for the purpose of s. 195(3) arose from an express enactment, namely, s. 17 of the Bombay Civil Courts Act (XIV of 1869). Neither Court was therefore in any sense an inferior criminal Court within the meaning of s. 435 of the Criminal Procedure Code. Prima facie therefore the examination of the record and proceedings by the District and Sessions Judge under s. 435 was illegal.

It may, however, be noted that although the record and proceedings were called for apparently under the provisions of s. 435, the reference was made under the provisions of s. 438 of the Criminal Procedure Code. That section provides as follows:—

“The Sessions Judge … may, if he thinks fit on examining under s. 435 or otherwise the record of any proceedings, report for the orders of the High Court the result of such examination,” …

The question is whether the words “or otherwise” in that section mean “in any other manner whatsoever” or should be construed as giving the Sessions Judge wide powers, apart from the Code, to examine the record of any Court whatsoever. There are authorities which suggest-that the interpretation of those words must be governed by the usual rule that the power under the Code should be limited to the provisions of the Code and the words “or otherwise” do not confer upon the Sessions Judge the power to call for the record and proceedings of any Court not contemplated by s. 435 (See Nobin Kristo Mookerjee v. Russick Lall Laha; Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakkal and Emperor v. Jamna Bai(3)). There are also authorities which go to the length of saying that the Sessions Judge's power to refer to the High Court is not confined only to proceedings of an inferior Court (see The Crown v. Chand Mal.(4) But see also Ramasis Thakur v. king-emperor(5)) section 433 confers co-ordinate jurisdiction on the District Magistrate and if the words “or otherwise” were intended to confer upon him the power to call for the record and proceedings of any Court, the District Magistrate might call for the record and proceedings of the Sessions Court. That would obviously open a vista of undesirable possibilities. The limitation of the powers of the District Magistrate has been recognised by this Court (see Emperor v. Lobo).

The learned Government Pleader has pointed out that all applications from orders in appeal under s. 476B of the Criminal Procedure Code are treated in this Court according to a long standing practice as applications on the criminal side, being in their essence of a criminal nature. He has, therefore, contended that for the purpose of s. 435 and s. 438, as also for the purpose of s. 439 of the Criminal Procedure Code, the proceedings under s. 476B should be regarded as proceedings of a criminal Court irrespective of the nature of the proceedings out of which they arise (see Queen-Empress v. Nusserwanji Sheriarji; Bal Gangadhar Tilak, In re and Emperor v. Balgaunda Ramgaunda).

It is unnecessary to refer at length to the cases which show a conflict of judicial opinion on the question whether applications to the High Court from orders under s. 476B of the Criminal Procedure Code should be treated as applications for revision under s. 115 of the Civil Procedure Code or under s. 439 of the Criminal Procedure Code. The High Courts of Calcutta, Madras and Allahabad have admitted such applications under s. 115 of the Civil Procedure Code. (See Nasaruddin Khan v. Emperor, Hamid Ali v. Madhu Sudan Das Sarkur,(6) Surendranath Maiti v. Sushilkumar Chakrabarti,(7) In re Chennanagoud,(8) Rama Aiyar v. Venkatachella Padayachi,(9) Janardana Rao v. Lakshmi Narasamma,(10) In the matter of the Petition of Bhup Kunwar,(11) and Abdul Haq v. Sheo Ram.(12)) The full bench of the Lahore High Court in Dhanpat Rai v. Balak Ram(13) followed the long-standing course in that province that “in such cases revision lies to the High Court and lies under s. 439 of the Criminal Procedure Code, irrespective of whether the order under revision was passed by a civil, criminal or revenue Court”.

It is difficult to express a choice as to the correctness of any particular view, for those cases yield no clear principle. It is sufficient to say that the practice of this Court has been uniform in this matter and that is to treat them as applications under s. 439 of the Criminal Procedure Code (see Queen-Empress v. Nusserwanji Sheriarji, Bal Gangadhar Tilak, In re and Emperor v. Balgaunda).

There is considerable force in the argument of the learned Government Pleader that as the preliminary enquiry relates to a criminal offence, and as the proceedings determine the question of making a complaint to a criminal Court under the Criminal Procedure Code, the procedure regulating application arising out of those proceedings should be governed by the Criminal Procedure Code, and that for all practical purposes the Court concerned with those proceedings either under s. 476 or 476B should be regarded as a criminal Court for the purpose of s. 435 and ss. 438-439. It is also pointed out that if the Civil Procedure Code were made to apply the powers of interference under s. 115 would be considerably limited. Our attention has also been drawn to the fact that limitation for the purpose of applications to revise an order under s. 476B to the High Court is governed by the period prescribed by Art. 154 of the Indian Limitation Act applicable to orders under the Criminal Procedure Code.

Now if it were merely a question of the applicability of s. 439 to proceedings in the High Court, perhaps it might be said that the practice of this Court might continue. That practice we think might be reconsidered on this occasion when dealing with the question directly involved in this case.

In Queen-Empress v. Nusserwanji Sheriarji it was held that the High Court had power to interfere under s. 439. That was also the view in Bal Gangadhar Tilak, In re, which was a proceeding from a civil Court. Similarly in Emperor v. Balgaunda Ramgaunda the sanction was given in a civil proceeding.

Although upon authority and the course of practice all applications against orders passed under s. 476B dealing with offences committed in the course of civil proceedings have been treated as applications under s. 439 of the Criminal Procedure Code, it would not necessarily follow that the Sessions Judge had jurisdiction to make this reference. That must depend on the interpretation of ss. 435 and 438 of the Criminal Procedure Code.

In Bal Gangadhar Tilak, In re the applicant was prosecuted for offences under ss. 196 and 211 of the Indian Penal Code committed by him in the course of proceedings for revocation of probate, and he applied for a stay of those proceedings to the High Court pending the disposal by the High Court of the appeal against the decree of the District Court revoking the probate. After examining the case-law on the point it was observed as follows (p. 789):—

“… all of the High Courts concur in the view that the power of revision, conferred by s. 439 of the Criminal Procedure Code, extends to orders passed under s. 476 of the Criminal Procedure Code. On this point now it is clear that no conflict exists.”

But in the later part of the judgment the following observations occur (p. 791):—

“The conclusion at which we have arrived, that no impropriety justifying any interference by way of revision has been made out, renders it unnecessary for us to discuss the question Whether under s. 435 empowering the High Court to ‘call for the examine the record of any proceeding before any inferior Criminal Court … for the purpose of satisfying itself … as to the correctness, legality or property of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court,’ or s. 439, sub-ss. 1, 3 and 4 of which contemplate a case in Which sentence has been passed and final decision has been arrived at, the High Court at this stage can interfere with the action taken by a Civil Court in sending a case for inquiry and trial under s. 476.”

Those observations we think weaken the authority” of that ruling.

In Govind Hari v. Emperor it was held that there was no right of appeal to the High Court from the District Court in respect of an order made under s. 476B, of whatever character that order may be, and it made no difference whether the result of the District Court's order was to quash a projected prosecution or to initiate a prosecution. Ultimately that matter was dealt with in revision under s. 439 of the Criminal Procedure Code.

There are certain observations in other cases referred to before us, namely, Janardana Rao v. Lakshmi Narasamma and In the matter of the Petition of Bhup Kunwar, which illustrate the divergence of judicial reasoning in the matter of the applicability, of the provisions of s. 439 of the Criminal Procedure Code. In Janardana Rao v. Lakshmi Narasamma the question referred to the full bench was (p. 179):—

“In an appeal under s. 476B of the Criminal Procedure Code in a civil proceeding has the appellate Court power to remand the matter back to the lower Court for disposal?”

I might refer to certain remarks in the judgment of Bardswell J., who delivered the judgment of the full bench, which are interesting (p. 182):—

“As to the nature of an appeal under s. 476B, Criminal Procedure Code, it has been held in Nasaruddin Khan v. Emperor that the procedure relating to it is governed by the Civil and not by the Criminal Procedure Code and it was held that it followed from the fact of the appeal, though itself one which is allowed by the Criminal Procedure Code, being one which must be heard by a civil appellate Court that the procedure governing it was one which has to be sought within the four corners of the Civil Procedure Code. The same view has also been taken in Surendra Nath v. Susil Kumar. But in Hamid Ali v. Madhu Sudan Das Sarkar, to which reference has already been made, Chotzner, J. was of opinion that it was plain from the wording of s. 476B that where a complaint has been made under s. 476 the person affected by the complaint may take an appeal to the Court to which the Court making the complaint is subordinate, and that appeal must be dealt with as an ordinary appeal udder the Criminal Procedure Code … (At the same time) even, however, taking it that section applies in cases of revision, I cannot see how it follows therefrom that the procedure of a Civil Court in hearing an appeal under s. 476B must be taken to be that allowed by the Code of Civil Procedure. As pointed out in Nasaruddin Khan v. Emperor, the Civil Court gets its power to hear such an appeal from the Criminal Procedure Code and when it gets the power from that Code I should take it that it must also exercise it according to the provisions of that Code and that it does not follow merely from the fact of its being a Civil Court that, being once seized of the appeal, it can proceed to apply the provisions of the Civil Procedure Code from which its right to hear the appeal has not been derived.”

In In the matter of the Petition of Bhup Kunwar which was a full bench case, the following observations were made by Stanley, C.J (p. 255):—

“It seems to me clear upon the true interpretation of this section that it only applies to a proceeding such as is expressly mentioned in s. 435, namely a proceeding before any inferior Criminal Court. It has no application whatever, so far as I can see to an order passed by a Civil Court, such as the order which was passed by the Munsif in this case. The general words with which the section opens, namely ‘in the case of any proceeding,’ must, I think, be understood as used in reference to the subject matter in the mind of the Legislature, which was undoubtedly the records and orders of inferior Criminal Courts referred to in the earlier section, s. 435, and must be strictly limited to it. They cannot have general application, for example, the Court could not exercise powers of revision in respect of proceedings of Courts outside the local limits of its jurisdiction. The words ‘any proceeding’ are undoubtedly qualified words, and a meaning must be given to them which best suits the scope and object of the Statute. That meaning is to be found in s. 435. I have no hesitation in holding that these words ‘any proceeding’ in s. 439 must be confined to a proceeding before any inferior Criminal Court situate within the local limits of the Court's jurisdiction, and that this section does not empower this Court to exercise criminal revisional jurisdiction in respect of an order of a Civil Court passed under s. 476.”

I have referred to the above observations as illustrating the difficulty of deducing a correct principle, which would apply to all cases of this kind. Although it has been the settled practice in this Court to treat applications against orders under s. 476B of the Criminal Procedure Code as matters arising in revision under s. 439, we have not been referred to a single instance where the matter has come up before this Court upon a reference by a Sessions Judge, from the order of a civil Court, under the provisions of s. 438 of the Criminal Procedure Code. The judgment of this Court in Bal Gangadhar Tilik, In re, has left the question open. We feel, having regard to the divergence of judicial opinion on the question of the nature of the proceedings under s. 476B and the general public importance of the matter, that the question whether the High Court can, upon a reference like this, exercise its powers of revision under s. 439 should be finally settled. We would therefore refer the following questions to a full bench:—

(1) Whether applications in revision from an order under s. 476B by a civil Court to the High Court should be heard and decided in accordance with the provisions of s. 439 of the Criminal Procedure Code?

(2) Whether upon an order of an Assistant Judge in appeal under s. 476B of the Criminal Procedure Code, directing that a prosecution filed against a party in a civil proceeding by a Subordinate Judge should be withdrawn, the Sessions Judge has jurisdiction under s. 435 of the Criminal Procedure Code to call for the record and proceedings of the case from the Court of the Assistant Judge?

(3) Whether in view of the provisions of s. 438 of the Criminal Procedure Code the Sessions Judge has jurisdiction, apart from s. 435, Criminal Procedure Code, to make a reference submitting the record and proceedings of the Assistant Judge in such a case to the High Court for orders under s. 439 of the Criminal Procedure Code? And if so,

(4) Whether the High Court upon such reference in the exercise of its powers under s. 439 of the Criminal Procedure Code can either by itself launch a complaint against the party concerned or direct the lower Court to do so?

Barlee, J.:—I agree to the reference to the full bench. In spite of the long course of practice in this Court I have grave doubts about our jurisdiction to interfere in revision under s. 435, Criminal Procedure Code, with orders made under s. 476B by civil appellate Courts, and as we are being asked to assume jurisdiction to institute criminal proceedings, I am of opinion that the whole matter should be referred to a full bench.

I think that the terms of reference framed cover all possible points.

The reference was heard by a full bench consisting of Beaumont, C.J, Broomfleld and Wassoodew, JJ.

Y.V Dixit, and A.B Acharya, for the accused. The learned First Class Subordinate Judge directed the prosecution of the defendant in the course of a civil proceeding pending before him. There was an appeal to the District Court under s. 476B of the Criminal Procedure Code read with s. 195(3) of the Code. But the appeal was heard and decided by the Assistant Judge and his jurisdiction to hear the appeal was derived by virtue of s. 17 of the Bombay Civil Courts Act, 1869. The Assistant Judge, in deciding the appeal, acted as a Civil Court. The jurisdiction exercised by the Assistant Judge being co-ordinate with that of the District Judge, it was not open to the Sessions Judge to make a reference to this Honourable Court in respect of an order which must be deemed to be essentially of his own Court.

I submit the case must be dealt with on the civil side alone that is to say, an application to revise an order made under s. 476B by a Civil Court should be entertained under s. 115 of the Civil Procedure Code and not under s. 439 of the Criminal Procedure Code. In the present case the proceedings under s. 476 arose in a civil case; the Assistant Judge was exercising merely his civil jurisdiction and according to my respectful submission, the proceedings contemplated by s. 476 are, in the case of a Civil Court, of a civil nature.

The view taken by the Bombay High Court is that when an order is made by a Civil Court under s. 476, the order can be revised by the High Court in its criminal revisional jurisdiction under s. 439 of the Criminal Procedure Code. See Queen-Empress v. Nusserwanji Sheriarji, Bal Gangadhar Tilak, In re, Govind Hari v. Emperor, and Somabhai Vallavbhai v. Aditbhai Parshottam. The Bombay view is supported by a full Bench decision of the Lahore High Court in Dhanpat Rai v. Balak Ram which is based principally upon the ground of long-standing practice of that Court to entertain such matters on the criminal side.

The opposite view is taken by the Calcutta High Court in Emperor v. Har Prasad Das. This was before 1923 when s. 476B was enacted for the first time. But this view was followed in the later decision in Surendranath Maiti v. Sushilkumar Chakrabarti, which held that proceedings under ss. 476, 476A, and 476B originating in Civil Courts should be dealt with in accordance with the provisions of the Civil Procedure Code.

The Allahabad view is in agreement with the Calcutta view. See In the matter of the Petition of Bhup Kunwar and Abdul Haq v. Sheo Ram.

The Madras High Court has also taken a similar view. See Janardana Rao v. Lakshmi Narasamma.

As illustrations of the Calcutta view may be cited cases such as Bismillah Khan v. S. Shakir Ali, Jagannath v. Rajagopala Chari, Ko Maung Gyi v. Ma Ma, and Babulal v. Emperor.(14)

Surendranath Maiti's case and Janardana Rao's case show that whenever necessary the provisions relating to criminal appeals are to be applied to appeals under s. 476B.

According to my submission, the Calcutta view is the correct one. When the matter arises in the course of a judicial proceeding before a Civil Court, it is but proper that the inquiry whether a person should be prosecuted for perjury or forgery should remain a civil proceeding. The fact that a right of appeal is given under the Criminal Procedure Code does not affect the question. The Court remains what it always was, viz., a Civil Court.

Section 6 of the Criminal Procedure Code defines or rather describes Criminal Courts. The Assistant Judge is not therein mentioned as a Criminal Court. Again, s. 476 of the Criminal Procedure Code does not say that a Court acting under s. 476 is a Criminal Court. On the other hand, s. 478 expressly makes a Civil or Revenue Court a Criminal Court under the circumstances mentioned in that section. The arrangement of the sections is, I submit, significant.

The Civil Court acting under s. 476 does not exercise any direct criminal powers. It has no power to punish the offender. The Court merely expresses its view that the offender has rendered himself liable to the jurisdiction of a Criminal Court. I submit that the Civil Court cannot justifiably be called a Criminal Court by merely acting under s. 476.

On the facts in the present case, the Court of the Assistant Judge is neither a Criminal Court, nor an inferior Criminal Court. The expression “inferior” implies that the Court in question must be statutably incompetent to hold or exercise equal powers. See Queen Empress v. Pirya Gopal. In order to determine whether revision lies under s. 439 of the Criminal Procedure Code or s. 115 of the Civil Procedure Code the test is not the nature of the proceedings which is the same but the nature of the Court in which the proceeding is held.

I contend that the view expressed in Har Prasad Das's case as affirmed in the later case of Surendranath Maiti is correct because it has the support of the Allahabad and the Madras decisions, as also of the decisions of the other Courts. On the other hand, the view which has long prevailed in this Court has the support of the Lahore High Court. It is for the Court, therefore, to consider which of the two views is the better view.

Dewan Bahadur P.B Shingne, Government Pleader, for the Crown. The Assistant Judge in the present case was acting as a Criminal Court. The contention that the judgment is of a Civil Court is based on s. 195(3). It no doubt provides for competency to entertain appeals; but it is somewhat far fetched to spell out from the section that the proceedings are of a civil nature.

A Civil Court while proceeding under s. 476 of the Criminal Procedure Code practically considers whether a complaint should be instituted or not, and having applied its mind comes to the conclusion, after recording a finding, that a complaint should or should not be made. As soon as that is done, an appeal is provided for by s. 476B. The forum of appeal is shown by s. 195B. The section nowhere says that the procedure shall be civil.

Section 6 of the Criminal Procedure Code is not exhaustive. It does not mention the police patel, who is a Criminal Court. The Assistant Judge is a Criminal Court.

Even if the Assistant Judge be regarded as a Civil Court he will be deemed to be a Criminal Court when he exercises the power under s. 476B. In a proceeding which is in its essence criminal the procedure will be under the Criminal Procedure Code.

In Abdul Haq v. Sheo Ram Ashworth, J. emphasized that (p. 539) “some alteration of the law is desirable to obviate the undesirability of such an application as this being dismissed on the ground that it cannot be entertained under s. 115 of the Civil Procedure Code”. He felt compelled to so regard the application, owing to the decision of the full bench in In the matter of the Petition of Bhup Kunwar; and went on to say (p. 540): “The language of s. 115 is too narrow to meet the case where the Judge by his order decides to prosecute the person on insufficient grounds or on wrong grounds. The consequence is that an application like this has to be rejected and what appears likely to be an abortive criminal suit has to be allowed to take place”. In Janardana Rao v. Lakshmi Narasamma the Madras High Court regarded (p. 184) such proceedings as “of a criminal rather than of a civil character” and that “the civil Court, when exercising its powers under s. 476B, is acting as provided for by the Criminal Procedure Code, as, in my view, it does even if the High Court exercise its revisional authority under s. 115, Civil Procedure Code.”

Under the Criminal Procedure Code, a criminal proceeding has a wide scope. Proceedings under chapter X, XI or XII are classed as criminal proceedings though they do not result in conviction or end in sentence.

The proceeding in question is clearly criminal, and it is before an inferior Criminal Court. The Sessions Judge is therefore entitled to make the reference. There is nothing in the Bombay Civil Courts Act which militates against this view. The Act only refers to delegation of authority to the Assistant Judge.

To treat the proceedings as civil would cause much hardship to litigants. Any one who wishes to apply to the High Court would have to do so under s. 115 of the Civil Procedure Code, which can only apply to three categories mentioned in the section. A party will find it increasingly difficult to get his application admitted on the civil side of the High Court. If the proceedings are treated as criminal, s. 439 of the Criminal Procedure Code would furnish a wider scope of admission to these applications.

Dixit, in reply. Under s. 476 of the Criminal Procedure Code the nature of the proceeding is the same whether the Court is a Civil, Revenue or Criminal Court. The argument of the learned Government Pleader is that s. 195(3) signifies only the forum of appeal, that s. 6 is not exhaustive and the Assistant Judge in the present case was acting as a Criminal Court and that the Assistant Judge acting under s. 476B must be deemed to be acting as a Criminal Court. Under s. 476 the nature of the proceeding being the same, what is material for the purpose of s. 476B is not the nature of the proceeding, but the nature of the Court in which the proceeding is held. Though the proceeding is under the Criminal Procedure Code, it is too much to say that the proceeding is criminal. At any rate, there is no indication in the sections either as to the proceeding being of a criminal nature or as to the Court being a Criminal Court.

The Sessions Judge cannot make a reference on the footing that the Assistant Judge is an inferior Criminal Court. Section 6 is in my favour. Moreover, the Assistant Judge exercised in the present case a jurisdiction concurrent with that of the District Judge. I submit, therefore, that the reference is incompetent.

The case of Somabhai Vallavbhai v. Aditbhai Parshottam is in point. In Somabhai's case the Subordinate Judge directed the prosecution under s. 476. The order was reversed by the District Judge. The aggrieved party-appealed to the High Court, but this Hon'ble Court declined to interfere. I submit that the High Court should not interfere with the order of the Assistant Judge on facts which are parallel to those in Somabhai's case.

No appearance for the complainant.

Beaumont, C.J:—The facts giving rise to this reference to a full bench are these. In a civil suit the plaintiff obtain to a decree against the defendant in 1933, and in 1936 there were darkhast proceedings to execute the decree. In those proceedings the defendant produced a receipt showing a larger amount as having been paid than was in fact paid. It is not disputed that the receipt was a forged document. The learned Subordinate Judge who tried the suit recorded a finding under s. 476 of the Criminal Procedure Code that it was in the interest of justice that the matter should be enquired into, and accordingly lodged a complaint for forgery against the defendant. The defendant preferred an appeal against the direction for lodging a complaint to the District and Sessions Court, and the District and Sessions Judge referred the case to the Assistant Judge. The Assistant Judge made an order directing that the complaint should not be proceeded with on the somewhat singular ground that, the defendant had admitted the forgery. The District and Sessions Judge seems to have sent for the record, and he disagreed with the view of the Assistant Judge that a prosecution ought not to be launched because the accused had admitted the offence after he was found out, and accordingly he submitted the papers to this Court recommending that under our revisional powers we should restore the complaint of the Subordinate Judge.

The principal question which has been referred to the full bench is the first question, namely,

“Whether applications in revision from an order under s. 476B by a civil Court to the High Court should be heard and decided in accordance with the provisions of s. 439 of the Criminal Procedure Code?”

The question really is whether the order made by the Assistant Judge under s. 476B was an order made by a civil Court so that the High Court's revisional powers are governed by s. 115 of the Civil Procedure Code, or is an order made by a criminal Court, or a Court exercising criminal powers, and power to revise such order arises under s. 439 of the Criminal Procedure Code.

The question has given rise to a difference of opinion amongst the various High Courts. Section 476 of the Criminal Procedure Code has to be read in connection with s. 195. That section provides, so far as material, that no Court shall take cognizance of any offence punishable under certain sections of the Indian Penal Code, which include the sections relating to forgery of documents, when such offences are alleged to have been committed in, or in relation to, any proceedings in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate. Then s. 476 deals with the method in which a complaint is to be lodged in cases falling under s. 195. Section 476, so far as material, provides that

“When any civil, revenue or criminal Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in section 195, sub-section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing.”

The learned Subordinate Judge acted under that section and made a complaint in writing. It seems clear that if that section stood alone there could be no appeal from the directions of the Subordinate Judge because no order is made; the Judge merely records a finding and lodges a complaint, which is an administrative act. However a right of appeal is expressly given by s. 476B. That section provides that—

“any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under section 476 or section 476A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of section 195, sub-section (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate Court might have made under section 476.”

So that the appellate Court is the Court to which the Court making the complaint is subordinate within the meaning of s. 195(3). That section provides that—

“for the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such civil Court is situate.”

The expression “the Court to which appeals ordinarily lie” must I think mean the Court to which an appeal would lie in an ordinary case from the civil, revenue or criminal Court in question. Clearly it cannot mean the Court to which an appeal ordinarily lies under s. 476 because no appeal does lie under that section except under s. 476B. The view which has prevailed in the High Courts of Calcutta, Madras and Allahabad is that the character of the Court which hears the appeal under s. 476B is governed by the character of the Court which lodges the complaint, that is to say, if the complaint is lodged as here by a civil Court, the Court hearing the appeal must be regarded as a civil Court. That is not expressly provided by s. 476B. The reference to s. 195(3) only determines the forum to which the appeal lies, and does not in terms determine the character of such Court. The High Court of Calcutta in Surendranath Maiti v. Sushilkumar Chakrabarti and the High Court of Madras in Janardana Rao v. Lakshmi Narasama appear to hold that although the Court which hears the appeal under s. 476B is a civil Court nevertheless its procedure in dealing with the appeal is governed by the Criminal Procedure Code, and both those Courts have held that the powers conferred on a criminal Court of appeal by s. 423 of the Criminal Procedure Code can be exercised in an appeal under s. 476B. With all respect to those Courts, that seems to me to be some what illogical. If the Court hearing the appeal is a civil Court it seems to me that its procedure must be governed by the Civil Procedure Code, and if the Court holds that the procedure is governed by the Criminal Procedure Code, that must be on the basis that the Court is acting as a criminal Court, and if it is acting as a criminal Court, I do not see why the powers of revision should not be those conferred by s. 439 of the Criminal Procedure Code, and not those conferred by s. 115 of the Civil Procedure Code. There is no provision in s. 476B, such as we find in s. 486 of the Criminal Procedure Code, enacting that the provisions of Chapter XXXI are to be acted upon. Chapter XXXI deals with appellate powers. If one had got such a provision as that, it would be possible to hold that the powers conferred upon an appellate Court by s. 31 of the Criminal Procedure Code apply, but the powers in revision conferred by Chapter XXXII do not apply. But in the absence of any such provision I fail to see why the provisions of one chapter more than the other should apply to a case arising under s. 476B, if the Court hearing the appeal is a civil Court. On the other hand the High Court of Lahore in Dhanpat Rai v. Balak Ram has held that an order made under s. 476B can be revised by the High Court under s. 439, and in so holding the Court followed a practice which has long prevailed in that Court. A similar practice has long prevailed in this Court. The Government Pleader tells us that he has known of many cases in which revision orders have been made under s. 439 in respect of orders passed under s. 476B, and in my own experience such orders have been made in recent years. The case of Govind Hari v. Emperor is one instance. In that case the Court held that no appeal lay against an order made under s. 476B directing a complaint to be filed, but having so held the report shows that the Court proceeded to set aside the order complained against in revision. But the question of jurisdiction was not argued or considered in that case, and there seems to be no reported case in this High Court since the enactment of s. 476B in the year 1923 in which the question of jurisdiction has been considered. In my opinion, however, the practice which has prevailed in this Court is right. The order which the appellate Court, is called upon to make under s. 476B either quashing a complaint or directing a complaint to be filed is clearly an order of a criminal nature, and there is nothing in the section which enacts that the Court which passes that order is not a criminal Court. Mr. Dixit for the applicant contends that a Court acting under s. 476B is not a criminal Court as defined by s. 6 of the Criminal Procedure Code, and in certain cases that might be so, for instance, where the appellate Court is the Court of the First Class Subordinate Judge exercising appellate powers. But, on the other hand, I am not prepared to say that s. 6 is exhaustive. It is, however, in my view not essential to determine whether the Court which passes an order under s. 476B is technically a criminal Court or not. It is certainly a Court which is exercising jurisdiction in a criminal matter, and in my opinion orders passed by it can be revised by the High Court under s. 439. I agree with the view expressed in many cases, that s. 439 must be read in connection with the sections which precede it. Section 439 enables the High Court to interfere in revision in the case of any proceedings, the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. The expression “or other proceedings” must clearly be limited by the context. Nobody would suggest that under s. 439 a criminal Court could revise the orders of a civil Court in a civil matter. But it may well be that s. 439 goes rather further than s. 435 which refers to calling for the record of any proceeding before any inferior criminal Court. Whether or not in this case the order was technically made by an inferior criminal Court, I am clearly of opinion that it was an order made by an inferior Court exercising, under s. 476B, jurisdiction in a criminal matter. In my opinion not only does the procedure relating to criminal appeals apply to a proceeding under s. 476B, but any order made under that section can be revised by the High Court under s. 439, and the provisions of s. 115 of the Civil Procedure Code do not apply to such a case. I would, therefore, answer the first question submitted to us by saying that applications in revision from an order under s. 476B by any Court to the High Court may be heard and decided in accordance with the provisions of s. 439 of the Criminal Procedure Code.

Questions (2) and (3) are in the following terms:—

(2) Whether upon an order of an Assistant Judge in appeal under section 476B of the Criminal Procedure Code, directing that a prosecution filed against a party in a civil proceeding by a Subordinate Judge should be withdrawn, the Sessions Judge has jurisdiction under s. 435 of the Criminal Procedure Code to call for the record and proceedings of the case from the Court of the Assistant Judge? And

(3) Whether in view of the provisions of s. 438 of the Criminal Procedure Code the Sessions Judge has jurisdiction, apart from s. 435, Criminal Procedure Code, to make a reference submitting the record and proceedings of the Assistant Judge in such a case to the High Court for orders under s. 439 of the Criminal Procedure Code?

They can I think be dealt with together. I certainly doubt whether the Sessions Judge in this particular case had any power under s. 435 to call for the record and proceedings of the case before the Assistant Judge, because the Assistant Judge was exercising a jurisdiction concurrent with that of the Sessions Judge in a case transferred to him, under s. 17 of the Bombay Civil Courts Act, 1869. It is clear, however, that the Sessions Judge if he thinks that injustice has been committed by an order made by his Assistant Judge can refer the matter to the High Court, just as he could refer the matter to the High Court if he came to the conclusion that he had himself made a mistake which ought to be corrected by the High Court in revision. Once the matter has been brought to the attention of the High Court, the High Court can in my opinion act in revision under s. 439 whatever the method adopted in bringing the matter to its attention. It is not necessary I think to record a formal answer to the questions.

Question (4) is in these terms:—

Whether the High Court upon such reference in the exercise of its powers under s. 439 of the Criminal Procedure Code can either by itself launch a complaint against the party concerned or direct the lower Court to do so?

I do not think it necessary to answer that question. If this Court comes to the conclusion in revision that the order of the Assistant Judge was wrong, the order can be set aside and the complaint filed by the Subordinate Judge allowed to proceed. That is a matter to be considered on the merits by the criminal bench.

Broomfield, J.:—I think the common sense view is that proceedings relating to prosecutions for criminal offences alleged to have been committed in Court are proceedings of a criminal nature, whether the alleged offence took place in a criminal, civil or revenue Court. It is for that reason presumably that the provisions of Chapter XXXV have been made applicable to all Courts. Prima facie it seems reasonable that the procedure as to revision should be the same as in all other criminal proceedings.

The difficulties which have given rise to this reference are mainly due to the fact that the provisions of the Code dealing with revision, i.e Chapter XXXII, do not in terms deal with revision of criminal proceedings but with the revision of proceedings of inferior criminal Courts. A Subordinate Judge who decides to make a complaint or not to make a complaint under s. 476 is engaged in a criminal proceeding. But he does not for that reason become a criminal Court. A District or Assistant Judge who hears an appeal in such a case is engaged in a criminal proceeding, but is not a criminal Court, that is to say, if the words are used in their strict or ordinary meaning.

One argument for holding that s. 439 of the Criminal Procedure Code applies in these cases is that section gives the High Court power to deal in revision with any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge. It is true that this section, when it speaks of proceedings which have been called for or which have been reported for orders, is obviously referring back to ss. 435 and 438, and in that respect it appears that it is intended to apply to proceedings of criminal Courts only. But, although s. 439 must be read in connection with s. 435 I am not prepared to say that the words “any proceeding” in s. 439 are not wide enough to include at any rate any proceeding under the Criminal Procedure Code. If so, they would include proceedings under Chapter XXXV even in the case of civil and revenue Courts.

Another alternative is to say that in Chapter XXXII the words “inferior criminal Courts” are used rather loosely in a sense wide enough to include proceedings of civil and revenue Courts when engaged in criminal matters. This again is not a view which it is altogether easy to accept, but in my opinion it is not impossible. As the learned Chief Justice has pointed out, the way in which the other High Courts have dealt with the matter is somewhat illogical. They agree that the criminal procedure is to be applied in the case of appeals. But if so, it is difficult to see why it should not be applied in the matter of revision also.

There is a rather curious point about the provisions relating to contempt of Court which are contained in this same Chapter XXXV. These provisions apply to civil and revenue as well as to criminal Courts, and there is a provision for appeals in s. 486 just in the same way as an appeal is provided in s. 476B. In these provisions the subordination of Courts is the same, that is to say, an appeal from a Subordinate Judge lies to the District Judge and so on. It seems obvious, therefore that it was not the intention of the legislature to make civil and revenue Courts subordinate to the criminal Courts in such matters. But in s. 486 it is expressly provided that the procedure for hearing appeals and the powers of the appellate Court in dealing with the appeals are to be in accordance with the provisions of Chapter XXXI of the Criminal Procedure Code.

The convenience of the practice of dealing with these matters under s. 439, which practice I think is as well established here as in Lahore, seems to me to be obvious. As far as I can see there is nothing in the Code which can be said to prohibit the application of that section. I agree, therefore, with the learned Chief Justice and with the answers which he proposes to the questions referred.

Wassoodew, J.:—I agree that the answers to the questions referred should be as stated in the judgment of my Lord the Chief Justice.

Answer accordingly.

Y.V.D