Hamid Ali v. Madhu Sudan Das Sarkar

Chotzner, J.:— We are of opinion that this Rule must be made absolute on the first ground upon which it was issued, namely, that the judgment of the learned District Judge is not in accordance with law. It seems that the Subordinate Judge drew up an order directing the prosecution of the present petitioners on certain grounds. An appeal was taken from that order, under section 476B of the Criminal Procedure Code, to the District Judge. The learned Judge, however, seems to have regarded the complaint drawn up by the Subordinate Judge as defective, and he, therefore, sent instructions to the Subordinate Judge “to frame a proper complaint more or less in the form of a charge, giving the date of the alleged offence or offences, the way in which they were committed (i.e, in the case of the charge under section 471, the mode of user)”, and then he goes on to say “let him send me the complaint in this form,” and he then proceeded to state what apparently was one of the grounds of appeal which was “that judgment-debtors Nos. 2 and 3 took no active part in the prosecution of the case, and cannot be bound with anything which judgment-debtor No. 1 may have done. The Subordinate Judge should meet that objection.” This order was made on the 1st May 1926. On the 22nd May the learned Judge notes—“Heard arguments for the appellants, and read the Subordinate Judge's reply to the points referred to in my order. I am not prepared to interfere or order withdrawal.” Now it is plain from the wording of section 476B that where a complaint has been made under section 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 under the Criminal Procedure Code, as is provided for in section 424 of the Code. The procedure, however, adopted by the learned District Judge was not in accordance with that section. We doubt whether he had jurisdiction, when an appeal had been preferred against an order of the Subordinate Judge, to require the Subordinate Judge to answer arguments which he was required to answer himself. We are also of opinion that the summary method he had followed in disposing of the appeal, without giving any reason, cannot be supported. We consider, therefore, that the Rule must be made absolute, and the case remitted to the Court of the District Judge so that he may re-hear the appeal and write a judgment in accordance with law.

Duval, J.:— I agree with my learned brother that the appeal must be heard according to law. In my opinion, however, the appeal must be triable as a Miscellaneous Civil Appeal, and regulated by Order XLI of the Code of Civil Procedure, and not by sections 422-424 of the Criminal Procedure Code, it being an appeal against an order of a Civil Court to a Superior Civil Court, and the procedure in Civil Courts being provided for in the Civil and not the Criminal Procedure Code.

E.H.M

Rule absolute.