Sir Zahhadur Rahim Zahid Suhrawardy, J.:— This Rule has been obtained for setting aside an order passed by the Magistrate committing the accused to the Sessions to take their trial of various offences mentioned in the order. The Magistrate took cognizance of the case on a complaint by the Muneif of Contai under s. 476 Criminal Procedure Code. It appears that on the application of the opposite party the Munsif made an order under s. 476 Criminal Procedure Code. Against that order an appeal was taken by the peti-tioner to the District Judge under s. 476-B and the learned Judge by his order dated the 28th May, 1928 held that the order made by the Munsif under s. 476 was otherwise good except that it was vague in asmuch as it contained a few sections of the-Indian Penal Code and “any other section of that Code found applicable.” He accordingly sent the case back to the Munsif and directed him to specify all the sections of the Indian Penal Code in his complaint under s. 476, Criminal Procedure Code. The Munsif accordingly made a complaint specifying the sections of the Indian Penal Code. No objection was taken to the legality of the proceedings before the trial Magistrate but it is complained before us that the order the District Judge remanding the case to the Munsif and asking him to make a complaint under s. 476 is bad in law and without jurisdiction and, therefore, the entire proceedings leading to the commitment of the accused must be set aside. In the circumstances of this case I am of opinion that this contention ought not to prevail, The order of the District Judge passed under s. 476-B has now become final. No objection was taken against that order under s, 115, Code of Civil Procedure, or any other law. This objection moreover, was not taken before the trial Court on the ground that the complaint upon which the case was started was not validly made before it. The learned Counsel appearing for the petitioners has referred us to two decisions of this Court in which it has been held that under s, 476-B the Appellant Court has no jurisdiction to remand a case but should make the complaint itself. These cases were decided upon different sets of facts. In these cases the original Court refused to make the complaint. There was an appeal and the Appellate Court was of opinion that the complaint should have been made. It was held that it was the duty of the Appellant Court to make the complaint and not to direct the trial Court to do it, in view of the wording of s. 476-B. Moreover, those cases were decided by Civil Benches of this Court under the Code of Civil Procedure. In Hamid Ali v. Madhu Sudan Das Sarkar*(1), the learned Judges held that the Appellate Court should have itself made the complaint; but the learned Judges composing the Benches differed in their opinion as to the procedure to be followed by the Appellate Court dealing with an appeal under s. 476-B, Criminal Procedure Cade. Mr. Justice Chotzaer being of opinion that it should be governed by s. 424, Criminal Procedure Code and Mr. Justice Duval holding that it should be governed by O. XLI, Civil Procedure Code, If the latter view is correct—and it seems to me, it is—there is no reason why the District Judge should have no power to remand the case to the lower Court if he acts in accordance with the rule conatined in O. XLI, Code of Civil Procedure. In the present case the District Judge did not overrule the Munsif and take upon himself the responsibility of making a complaint against the accused. He affirmed the order of the Munsif and simply pointed out to him that the order passed by him should be properly worded. In my opinion the order passed by the District Judge in this case did not coma within the scope of the decisions referred to. Even if it did, I think in the circumstances of this case that order cannot be challenged at this stage.
2. Under s. 215, Criminal Procedure Code, we are entitled to quash the commitment only on point of law. Bat it has been argued on behalf of the petitioners that the District Judge has no jurisdiction to remand the case undar s. 478-B to the Munsif and, therefore, the entire subsequent proceedings are illegal and should be set aside.
3. As I have pointed out the order of the District Judge was not illegal and did not contravene the provisions of P. 476B, and if it did, it was not an order without juiis diction. In Manir Ahmed Chowdhury v. Jogesh Chandra Hoy(2) it has been held that the Appellate Court has no jurisdiction to remand a case to the Court of first instance to file a complaint. The words ‘no jurisdiction’ were used there in a wide sense to include an act against the law. There was no absence of jurisdiction but at the most an illegal exercise of jurisdiction. The petitioners have lost their remedy (if they bad any) now, not having taken any action against the order of the District Judge passed under s. 476-B. They should not now be allowed to challenge that order which has become final between the parties, in collateral proceedings.
4. In this connection it may be necessary to consider the case of Raj Chunder Mozumdar v. Gour Chunder Mozumdar(3). Under the old Criminal Procedure Code sanction granted by a Court under s. 193 enured for a period of six months only within which camplaint was to have been final in a Ori-uiinal Court, In that case the complaint was filed after six months and it resulted in the commitment of the accused. The learned Judges quashed the commitment on the ground that the complaint was made against the express provisions of the las. With reference to the application of s. 537 it was observed that it did not save the proceedings because they contravened the express provisions of s. 195, Criminal Procedure Code. In the present case I do not see why s. 537 should not cure the defect, if any. There is no contravention of any express provisions of the Code. If there is any error, it is one provided against by s. 537, Criminal Procedure Code. In this view I would die-charge this Rule.
Graham, J.:— I agree that the Rule should be discharged. There can, I think, be no question as to the jurisdiction of the Magistrate to make the commitment and that it was a valid commitment according to law. The contentions which have been raised as to the legality of the proceedings in the Civil Courts are matters which ought to have been raised long ago by an appeal or by way of application in revision. It appears moreover that these objections were not even taken in the committing Court and that they are now raised at the eleventh hour after commitment.
6. Rule disharged.