The Judgment of the Court was as follows:—
Mukerji, J.:— The facts necessary to be stated for the purposes of this Rule are these: One Naimuddin was the complainant in a case under sec. 426, I.P.C, against one Hanif and others, which was tried by Moulvi Mir Hossain, a Magistrate of the 3rd class. The accused persons pleaded that the land concerned had been purchased by them and that the complainant Naimuddin was himself an attesting witness to the deed of purchase. The Petitioner Mohim Chandra Nath Bhowmik gave evidence in support of the defence, proving the execution of the deed and the signature of Naimuddin thereon. Naimuddin, while the trial was pending, denied his signature in the deed and applied to the trying Magistrate for the prosecution of all concerned in the forgery. The accused persons were acquitted, the trying Magistrate being doubtful as to the forgery. After the case was over, Naimuddin pressed his aforesaid application. The trying Magistrate instead of dealing with the matter himself, as he should have done, forwarded the papers to the Sadar Sub-Divisional Officer for necessary action. The Sadar Sub-Divisional Officer returned the papers to the trial Magistrate with the following remarks:— “The only materials are the denial of execution by the complainant, and the dissimilarity of the left thumb impression of the complainant from those on the document Ex. 1. The Court too did not on the judgment come to any finding that it is forged. As such I would leave the complainant to move in the matter if the left thumb impression be really forged.” What other action on the part of the complainant was contemplated by these remarks it is difficult to see: evidently the learned Sub-Divisional Magistrate was thinking of sanction under sec. 195 as distinguished from an order for prosecution under sec. 476, Cr. P.C forgetting for the moment the changes effected by the Amendments of 1923. As the trying Magistrate did not pass any final order in the matter, the complainant moved Mr. L.B Das, a Deputy Magistrate who had powers under sec. 407(2), Cr. P.C and that officer asked the trying Magistrate to pass such orders. When the said order of Mr. L.B Das arrived before the trying Magistrate, he rejected the complainant's prayer in these words: “Read the order of the Appellate Court. Looked into the connected records including the petition of Naimuddi. I have not been personally convinced about the guilt of the accused party and I do not think it quite proper to proceed under sec. 476, Cr. P.C” The complainant then preferred an appeal which was admitted by the joint Magistrate, and on the latter vacating his office, Mr. L.B Das who, it is said, succeeded him, dealt with the appeal and being of opinion that the acquittal of the accused persons Hanif and others was wrong and that a primâ facie case was made out against the Petitioner directed under sec. 476B, Cr. P.C, a complaint to be lodged against the Petitioner for offences under secs. 193 and 465 read with sec. 109, I.P.C On that complaint the Petitioner has been put upon his trial. He impugned at his trial the validity of the proceeding taken against him on the ground that Mr. L.B Das though he had power under sec. 407(2), Cr. P.C was not competent to pass the order under sec. 476B, Cr. P.C and that consequently the proceedings taken on that complaint cannot stand. The objection has been over-ruled by the Court in which the trial is going on and the Sessions Judge on being moved to make a reference to this Court has declined to interfere. The Petitioner has then moved this Court and obtained the present Rule.
One of the grounds upon which the Sessions Judge has declined to make a reference to this Court is that the petitioner not having appealed from the order passed by Mr. L.B Das under sec. 476B, is precluded by reason of sec. 439(5), Cr. P.C from invoking the revisional powers of this Court. This ground has no substance as, apart from other reasons, no appeal lay from Mr. L.B Das' order [Ahamadar Rahaman v. Dwip Chand Chowdhury ].
In support of the contention that Mr. L.B Das, though empowered under sec. 407, sub-sec. (2), Cr. P.C to hear appeals from the sentences of the Court of Moulvi Mir Hossain, was not the presiding officer of a Court to which appeals from the Court of Moulvi Mir Hossain ordinarily lay within the meaning of sec. 195, sub-sec. (3), Cr. P.C so as to be competent to hear the appeal under sec. 476B, Cr. P.C the petitioner has relied upon the decision of this Court in the case of Sadhu Lall… v. Ram Churn Pasi…Opposite Party. . On the other hand, the Crown has in the first place relied upon the contention urged in the Magistrate's explanation which seeks to make out that the decision is no longer of any force because of the alteration in sec. 195 by the Amending Act of 1923. The alteration to which reference has been made in this behalf is the omission of the word “only” from sub-sec. (7) of that section as it stood in the Act of 1898 [Vide sub-sec. (3) of sec. 195 as it stands at present]. It has been urged that because the word “only” is no longer in the sub-section, there is nothing to prevent two Courts, namely, that of the District Magistrate as well as that of the Deputy Magistrate empowered under sec. 407, sub-sec. (2) being regarded as Courts from which appeals ordinarily lay from the Court of Moulvi Mir Hossain, and that if that be the position then under proviso (a) to the sub-section, the Court of Mr. L.B Das would be the only Court to which the Court of Moulvi Mir Hossain would be subordinate within the meaning of sec. 195. In my opinion the omission of the word “only” has no such significance, and the words “to which appeals ordinarily lie” should still be understood in the sense attributed to them in the decision aforesaid. The wording of sec. 407 has not undergone any change and the decision aforesaid appears to have been followed by almost all the superior Courts in this country, and no dissent against it has been expressed anywhere except in the dissentient judgment of Benson, J., who was in the minority in the Full Bench case of Eroma Varier v. Emperor (3). The Crown has, in the next place, relied upon the decision in the case of Queen-Empress v. Subbaraya Pillai (4). That case, however, was decided under the Code of 1882 in which the wording of sec. 407 was materially different as has been pointed out by White, C.J, in the case of Eroma Varier v. Emperor , and in any event I do not see any good reason to depart from the view which our own Court has taken of the meaning of the words “to which appeals ordinarily lie.”
Finally, it has been contended on behalf of the Crown that if Mr. L.B Das had no jurisdiction to make a complaint under sec. 476B, it should be held that the case has been instituted without a proper complaint and an omission of this character is curable by sec. 537, Cr. P.C This argument overlooks the bar which sec. 195 imposes. It also overlooks that what sec. 537 provides for is an error, omission or irregularity in the complaint and not the entire absence of a complaint without which no cognizance of the offence can be taken under the law.
The result is that the proceedings instituted upon the basis of Mr. L.B Das' order which purports to have been made under sec. 476, Cr. P.C cannot go on. They are accordingly quashed.
We should observe that in the view that we take the complainant's appeals from the order of Moulvi Mir Hossain refusing to make a complaint under sec. 476, Cr. P.C has not yet been disposed of by a Court competent to deal with it. It follows, therefore, that if the complainant desires to proceed with that appeal any further, it will necessarily have to be heard by the District Magistrate and disposed of by him in accordance with law and in the light of those well-established principles which govern appeals of this description.
The Rule is made absolute.
Graham, J.:— The true construction of the words “Court to which appeals ordinarily lie” in sec. 195(3), Cr. P.C seems to be not free from doubt. But on the whole I see no reason to differ from the view taken by my learned brother, and I agree that we should follow the decision of this Court in Sadhu Loll v. Ram Churn Pasi and that the Rule should be made absolute.
P.C