- (1.) THESE are two applications in revision against an order passed by the Sessions Judge of saharanpur dismissing the applicants' appeal under Section 476-B, Cr, P. C. on the ground that they were barred by time.
(2.) IN proceedings under Section 476 of the Code of Criminal Procedure a Magistrate found on 27-9-1950 that it was expedient in the interests of justice to file a complaint for the offence of section 193, I. P. C. which appeared to have been committed by them, what the learned magistrate actually did was to write that he had seen the file and heard counsel for the parties, that a 'prima facie' case under Section 476 read with Section 195, Cr. P. C. was made out and that a complaint would be made against the applicants for their prosecution under Section 193, etc. On the same date he made a complaint against them and it was sent to a court of competent jurisdiction. The applicants filed an appeal under Section 476-B, Cr. P. C. against the finding of the learned magistrate. The appeal was dismissed on 6-11-1951 by the Sessions Judge who held that the appeal should have been filed, not against the finding but against the making of the complaint. On 14-11-51 the applicants applied for a copy of the complaint made against them. They got it on 24-12-'51 and filed the appeal on 2-l-'52. As by that date the appeal had become barred by time, they applied for extension of the period of limitation under Section 5 of the Limitation Act. The learned Sessions Judge dismissed their application and dismissed the appeal as barred by time.
(3.) SECTION 476 lays down that when a court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195 (1) (b) or (c), it, "may, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the court, and shall forward the same to a Magistrate of the First Class having jurisdiction. " Section 476-B lays down that "any person against whom such a complaint has been made, may appeal to the court to which such former court is subordinate and the superior court may thereupon, direct the withdrawal of the complaint. " if in a proceeding under Section 476, a court wants to have an inquiry made into an offence referred to in Section 195 (1kb) or (c), it has to do two things. (1) to record a finding to the effect that it is expedient to have such an inquiry made and make a complaint thereof, and (2) to forward the complaint to a Magistrate having jurisdiction over the case. It has not to pass any order; it has not to order any person to be prosecuted for the offence. It has not even to order that a complaint be made against him. Jt has simply to record a finding that it is expedient to make a complaint and then to make a complaint and forward it to a Magistrate having jurisdiction. An appeal can be filed by a person against whom a complaint has been made and not by a person against whom a finding has been recorded. Even if a court has actually said that a certain person be prosecuted for a certain offence, that gives no right to him to file an appeal against the "order". He can file an appeal only if a complaint has actually been made against him. If there is only a finding to the effect that it is expedient to make a complaint against him or if there is even an order to the effect that a complaint should be made against him, so long as no complaint has actually been made against him he has no right of appeal. If the appeal is allowed the appellate court has to direct the withdrawal of the complaint. Unless a complaint has already been made, there can be nothing to be withdrawn. The appellate court is not required to set aside the finding about the expediency of making a complaint or the order, if any, made by the court, that the person be prosecuted. If in a proceeding under Section 476 the court refused to make a complaint, the person who had applied for starting the proceeding under section 476 has been given a right to file an appeal against the refusal and if it is allowed, the appellate court is required to make a complaint. The right of appeal has been given in such a case not to a person on whose application the court has refused to record the finding that it is expedient in the interests of justice to make a complaint, but to a person on whose application it has refused to make a complaint. If the appeal is allowed the appellate court is not required to record a finding about the expediency before making a complaint. It is clear from these facts that it is not the recording of the finding about the expediency, or the non-recording of a finding about the expediency, that is the subject-matter of appeal; it is the making of, or the refusal to make, a complaint, that is the subject-matter of appeal. That is the matter which gives rise to an appeal and that is the matter to be dealt with by the appellate court. The recording of, or the refusal to record, a finding about the expediency does not give rise to a right of appeal and is not to be dealt with by the appellate court.;