KESAVA PILLAI Vs. STATE
LAWS(KER)-1955-1-18
HIGH COURT OF KERALA
Decided on January 27,1955

KESAVA PILLAI Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) The appellants in these two appeals were witnesses Nos. 11 and 12 respectively in Sessions Case No.1 of 1954 on the file of the Additional Sessions Judge of Trivandrum. They were ordered to be prosecuted for an offence under S.193 of the Indian Penal Code in respect of the statements given by them in that case and they have preferred these appeals under S. 476B of the Code of Criminal Procedure.
(2.) It is unnecessary to give a decision on the merits because in our opinion the appeals are now incompetent as it was stated that complaints have not yet been made as directed by the court below. S.476B reads as follows:- Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under S. 476 or S. 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 S. 195, sub-s. (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 S. 476, and if it makes such complaint the provisions of that section shall apply accordingly.
(3.) The right of appeal is given to a person against whom a complaint has been made under S.476 of the Code. Until such a complaint is made, the finding or order is incomplete and it does not give the right of appeal. The latter part of the section makes this clear. The function of the superior court in such a case is to direct the withdrawal of the complaint if it is satisfied that the complaint ought not to have been made. S. 476 does not contemplate a long interval of time between the order for prosecution and the making of the complaint but the delay that has occurred in this case cannot affect the question of right of appeal. This question arose for decision in Daga Devji v. Emperor (AIR 1928 Bom. 64) Ramjan v. Moolji Seeka ( AIR 1929 Cal. 521 ), Fitzholmes v. Emperor ( 27 Crl LJ 1321 ) and Balgovind v. Jamnabai ( 36 Crl LJ 1371 ). The point that arose for decision in these cases was whether appeals preferred under S.476B of the Code were barred by limitation. It was held that the starting point of limitation was the day on which the complaint was made and not the date of the order, as the right of appeal arose only on a complaint being made in pursuance to the order. We agree with the view expressed in the cases cited above and hold that the appeals are premature. It is open for the appellants to prefer appeals as soon as complaints are made against them as directed by the order of court below. These appeals are therefore dismissed.;


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