The Judgment of the Court was as follows:—
Buckland, J.:— This is an application to admit an appeal which it is sought to prefer against the judgment and order of Page, J., dated the 11th August 1928 whereby he recorded a finding that it was expedient in the interests of justice that an enquiry should be made into certain offences specified by him and ordered that a complaint thereof be made in writing signed by himself and forwarded to the Chief Presidency Magistrate, Calcutta.
The Registrar has endorsed upon the memorandum of appeal:— “I am unable to admit this appeal. It is open to Appellant to apply to the appeal Court.” The reason given for this is that the requisition for office copy was given after the expiry of twenty days. Primâ facie the Registrar would appear to be right and to have correctly applied the well-known rule applicable, but this application does not depend on any such considerations and no useful purpose would be served by reciting the several dates upon which the various steps customary between the making of an order and the presentation of an appeal were taken.
The learned Judge on the 30th August, pursuant to his finding and order of the 14th August, signed the complaint which he had ordered to be made. The document, of which we have been shown a copy, recites the suit in which the alleged offence took place, the fact that it was heard and determined before him, the application made to him under sec. 476. Cr. P.C, on circumstances and based upon materials which the complaint sets out in detail, his order thereon, and concludes as follows:— “Now I being the Judge who heard and determined the said suit No. 2178 of 1927, do make a complaint against the said Ramjan Ali pursuant to sec. 476 of the Code of Criminal Procedure that he the said Ramjan Ali has committed the said above-mentioned offences; and I annex to this complaint a certified copy of the judgment which was delivered by me in the said suit, and which is marked Ex. A.”
In his procedure and the terms of his order and complaint the learned Judge has been careful to observe the provisions and language of the section and no exception can be taken to the course which he has followed.
An appeal is allowed by sec. 476B, Cr. P.C which provides:— “Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under sec. 476 or sec. 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 sec. 195, sub-sec. (3).”
The arguments submitted by learned Counsel on either side turn upon the question whether an appeal against an order made by a Judge exercising the original jurisdiction of the Court to a Division Bench of the Court lies under sec. 476B or under cl. (15) of the Letters Patent. If the latter, it is submitted that nothing in the terms of sec. 476B can avail the applicant to save limitation, for Art. 151 of the Limitation Act would apply and time would run from the 14th August the date of the order appealed, against. If on the other hand the appeal is under sec. 476B, the section furnishes a starting point for limitation in the date of the complaint, for until a complaint has been made no appeal can be preferred under the section. In that case a further point arises, whether the article of the Limitation Act applicable is Art. 151 or Art. 155, for while the contention advanced on behalf of Mr. Sircar's client leaves no room for any such question, that advanced on behalf of the applicant leaves it still open.
These two views depend upon the interpretation to be placed upon the words “may appeal to the Court to which such former Court is subordinate within the meaning of sec. 195, sub-sec. (3).” The sub-section there referred to provides that 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. Ordinarily appeals lie from a single Judge of the Court to a Division Bench, but as the language of sec. 476B and of sec. 195(3) contemplates two Courts it is contended that they have no application. No doubt both a Judge sitting singly and a Division Bench both exercise the jurisdiction of the same Court, though the one exercises the original and the other the Appellate Jurisdiction of the Court. But it would be entirely contrary to the spirit of the Act to hold that by reason of this the sections are inapplicable. The definition of subordination is an arbitrary or conventional definition intended in my opinion to meet all cases where the Court of first instance is not subordinate to the Appellate Court in the ordinary sense of the word, and it must therefore be taken to comprise the case in point. To hold otherwise would lead to a most anomalous position. Though, if Mr. Sircar's contention is correct, it would be open to a Judge exercising Original Jurisdiction to make an order, as Page, J., has done, under sec. 476 in respect of one of the offences specified in sec. 195, the Bench which heard an appeal from the judgment and decree made in the suit would have no power to do so.
Authority on the point is not, however, lacking, for it arose in Munisang Mudaliar v. Raja Zarluari Pillai (1). In that case a single Judge on the Original Side of the High Court, under sec. 195 of the Criminal Procedure Code, granted sanction to prosecute in respect of an offence specified in that section. An appeal was preferred and it was contended that under sec. 195, sub-secs. (6) and (7), which for the immediate purpose are indistinguishable from sec. 195(3) of the Code as since amended, no appeal lay to the Division Bench of the High Court. A Full Bench of the Madras High Court, though the learned Judges guarded themselves against expressing any opinion as to whether a single Judge is subordinate to a Bench in any other sense, decided that as appeals ordinarily lie to a Division Bench from a Judge sitting alone the Division Bench of the Appellate Side of the Court had power to revoke the sanction. The same test of subordination was applied by the Bombay High Court in Abdul Latif v. Haji Tar Mahomed (2) and it was decided that an appeal lay to a Division Bench from an order made by a single Judge on the Original Side granting or refusing sanction to prosecute.
In my judgment the view taken by the Madras and Bombay High Courts is correct and the appeal lies under sec. 476B of the Code of Criminal Procedure. The question whether any appeal would lie under cl. (15) of the Letters Patent does not arise and indeed, in the present state of the law, it is difficult to see how it ever could arise.
In this view it becomes apparent that limitation must be held to run from the date of the complaint, for the words of the section make it clear that it is only on the refusal to make a complaint or on a complaint being made that an appeal is possible. But for this it would undoubtedly be open to argument that time ran from the date of the finding and order that a complaint should be made. As it is, though the order to be appealed against is that directing a complaint to be made, in this case the order of the 14th August, nevertheless, for the reasons stated and contrary to the usual rule, time does not begin to run until the complaint has actually been made. It was suggested that time did not run until the complaint reached the Magistrate to whom it was directed to be sent under sec. 476, on the ground that until it reached him there was no complaint, but this cannot be the case because sec. 476 says that “such Court may …. make a complaint … and shall forward the same to a Magistrate…..”
On this point also there is authority. For the same reasons as I have given already the Lahore High Court in Fitzholms v. The Crown (3) held that time runs from the date of the making of the complaint. This was followed by the Bombay High Court in Emperor v. Daga Devji Patil* (4) in which Fawcett, J., observed that until the order, being the finding under sec. 476, is supplemented or completed by an actual complaint it is for the purpose of sec. 476B incomplete.
This brings me to the final point, viz., the period of limitation applicable. Both Arts. 151 and 155 have been referred to, the two periods of limitation prescribed being twenty and sixty days, respectively. The order to be appealed against is dated the 14th August but the complaint is dated the 30th August. The Court closed for the vacation on the 14th September and as the memorandum of appeal was presented on the clay upon which the Court reopened it was presented within time whichever may be the article applicable. The question, which is by no means free from difficulty, need not therefore be decided on this application. If, as has been held [Nasaruddin Kuan v. Emperor* (5)] the procedure relating to appeals under sec. 476B is governed by the Civil and not the Criminal Procedure Code, the point is one which cannot be determined exclusively upon the wording of the two articles, and as it has not been argued fully, though we were referred to Budhu Lal v. Chattu Gope (6) and Chandra Kumar v. Mathuria Debya (7), I express no opinion in regard to it.
In my judgment the appeal must be admitted as it is within time and the Respondents must pay the cost of this application, but 1 desire to add a few observations as to the practice. Sec. 476 requires a finding and complaint. I have known, indeed I have done it myself, a direction given that the judgment in the suit out of which the matter arises shall be treated as a complaint, in which case a copy of the judgment has been signed by the Judge and sent by the Registrar to the Magistrate. Unless the judgment has been framed with that end in view this may lead to a want of precision and ambiguity which should be avoided at all times but especially in a criminal matter. The example set by Page, J., of a separate order containing the requisite finding, setting out in detail specific matters extracted from the proceedings, and directing a complaint to be made in respect thereof, this being followed by the complaint which conforms to the terms of the previous order, is greatly to be preferred. Such a course avoids the possibility of any mistake as to what is intended. In a matter which recently came to my notice when one of a Division Bench it appeared that another Division Bench of the Court when deciding an appeal under sec. 476B directed that a complaint should be made against a particular individual. The case then went back to the Chief Presidency Magistrate who himself made a complaint after a lapse of time. This was certainly wrong. The Division Bench had intended that their judgment should take the place of the complaint. In the circumstances of that case no one was ultimately prejudiced but the case affords an illustration of the advantage to be gained by a procedure such as Page, J., adopted in the present case.
Rankin, C.J:— I agree.
Messrs Akhil Bose & Co., Solicitors for the Appellant.
Messrs Orr, Dignam & Co., Solicitors for the Respondent.
S.C.M