- (1.) THIS is an application for revision by Hukumchand and is directed against the order of the learned Additional Sessions Judge, Jaipur, who has remanded a case under section 476 of the Code of Criminal Procedure to the first court with the direction to hold a preliminary enquiry and thereafter give its fresh finding in accordance with law.
(2.) THE facts are that in a Civil suit brought by the firm Motilal Suresh-chandra against Ghinnaram (opposite party in this revision) in the court of the Civil Judge, Phulera, Hukumchand was examined as a witness for the plaintiff. During his cross-examination on the 8th April, 1950, a notice Ex. C. 1 was shown to him and it was admitted by him. On the 25th April, 1950, the opposite party made an application before the learned Civil Judge under sec. 476 of the Code of Criminal Procedure praying to the court that a complaint be made against the applicant under sec. 466 of the Penal Code as the applicant had torn a portion of the notice Ex. C. 1 after its production in court and had added certain thing on its back. On this application, the learned Civil Judge, issued a notice to the applicant to show cause why a complaint under sec. 476 be not made against him. 5th May, 1950 was fixed for showing cause. On the said date parties appeared before the Civil Judge and the applicant filed his reply. No evidence seems to have been produced by either party and after hearing the arguments, the learned Civil Judge, dismissed the application. Against this order, the opposite party went in appeal to the court of District Judge, Jaipur City to whom the appeals ordinarily lay, at that time against the decrees and orders of the Civil Judge, Phulera. This appeal subsequently reached the court of the learned Additional District Judge, Jaipur who allowed the appeal and remanded the case to the first court as noted above. Against this order, the applicant has come to this court in revision. It has been argued by the learned Counsel for the applicant that the Additional District Judge, Jaipur had no jurisdiction to hear and decide the appeal. His order was, therefore, bad. The second objection is that at any rate, the learned Judge could not decide the appeal as Additional Sessions Judge, because the case arose out of the proceedings in a civil court and therefore, an appeal lay under sec. 476-B to the District Judge and not to Sessions Judge. The third objection is that the Learned District Judge had no power to remand the case under sec. 476-B to the lower court. The last objection is that the Civil Judge was not bound to make a preliminary enquiry and when the parties did not adduce any evidence, he was perfectly entitled to decide the case on the basis of the material on the record, which being insufficient the application was rightly dismissed On behalf of the opposite party, it has been argued that subsequent to the filing of the appeal, jurisdiction for the appeals against the decrees and orders of civil courts at Phulera was vested in the Additional District Judge, Jaipur. He was, therefore, perfectly entitled to hear the appeal. As regards the misdescription of the court, as the court of the Additional Sessions Judge, it was argued that it was only a technical mistake and did not affect the case. As regards the illegality of the order of remand, it was argued that even in a case under sec. 476 of the Code of Criminal Procedure, an appellate court has power to remand a case in proper cases. As regards the last argument, it was argued that no opportunity was given to the opposite party to produce evidence and it was a case in which preliminary enquiry was very necessary. I have considered the arguments of the learned counsel for both the parties. So far as the first objection of the learned counsel for the applicant is concerned, it has no force. After the appeal was filed, jurisdiction was vested in the learned Additional District Judge, Jaipur in civil cases coming from Jaipur district excepting Jaipur City and Kishangarh Sub-division. The learned Additional District Judge, was, therefore, perfectly entitled to decided the appeal. In view of the decision which I am giving on the third point, the decision on the second point is immaterial. However, I may remark that in civil cases the District and Sessions Judge should describe himself only as a District Judge and in criminal cases only as a Sessions Judge. The description of the Judge as District and Sessions Judge both in civil and criminal cases sometimes leads to confusion that in a civil case the District Judge is mis-described as a Sessions Judge and a Sessions Judge in criminal cases as a District Judge. As the Learned Judge was hearing an appeal, which arose out of the proceedings of a civil suit and was consequently a civil appeal, he should have described himself only as a District Judge. His description of himself as a Sessions Judge was certainly wrong. Arguing that a court of appeal in a case under section 476-B of the Code of Criminal Procedure, has no power of remand, the learned Counsel for the applicant drew my attention to the provisions of section 476-B. It was urged that the said section is self-sufficient and clearly defines the powers, which can be exercised by an appellate court. According to that section an appellate court may either direct the withdrawal of the complaint or as the case may be, itself make the complaint which the subordinate court might have made under section 476. It was argued that this section gives no power of remand to the appellate court. Reliance has been placed upon the ruling reported in Vithoba Bala vs. Goval Prasad Rangilal (A. I. R. 1949 Nagpur p. 343), Dhanpatrai vs. Balak-ram (A. I. R. 1931 Lahore p. 761), Mendi Lal vs. Ram Adhin (A. I. R. 1935 Oudh p. 59) and Mannilal vs. Emperor (A. I. R. 1937 Allahabad P. 305.) In all these rulings it was decided that section 476 is self-contained and contains a complete provision of the powers of the first and appellate courts. According to these provisions the appellate court has no power to remand a case for further enquiry and reconsideration of it by the subordinate court. Learned Counsel for the opposite party has cited Surendra Nath Maity vs. Susil Kumar Chakrabarty (A. I. R. 1931 Calcutta p. 604) and Janardana Rao vs. Prattipati Lakshmi Narasamma (A. I. R. 1934 Madras p. 52 [koduru] ). In both these rulings it has been held that an appellate court under section 476-B has a power to remand. I have considered both the sets of rulings and have given my anxious care because there is high authority of two of full benches of Lahore and Allahabad High Courts on one side and of Madras High Court on the other. With utmost respect to the learned Judges of Madras and Calcutta High Court, I find myself in agreement with the view taken by Allahabad Full Bench in A. I. R. 1937 Allahabad, and Lahore Full Bench in A. I. R. 1931 Lahore 761 and Oudh Chief Court and Nagpur High Court in A. I. R. 1935 Oudh p. 59 and A. I. R. 1949 Nagpur 343 respectively. Looking to section 476-B one finds utter absence of power of remand under that section. An appellate court, under that section, may 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 sec. 476. In 1931 Calcutta 604 it was held that sec. 476-B is not exhaustive, but provides powers supplementary to those which are given under Chapter 31. On a careful perusal of section 476-B as well as 486 of the Code I am unable to subscribe to the view taken by the learned Judges of the Calcutta and Madras High Courts, If the Legislature bad intended that provisions of Chapter 31 shall apply to an appeal under section 476 B, there should have been no difficulty in expressly saying so. The legislature had said so clearly in section 476 of the Code which provides appeals from convictions in contempt cases in sub-sec. 2. The legislature has said that the provisions of Chapter 31 shall, so far as they are applicable, apply to appeals under the section and the appellate court may alter or reverse the finding or reduce or reverse the sentence appealed against. In sec. 476 B, the legislature did not incorporate these words, which shows that it did not intend that the provisions of Chapter 31 shall have an application to such appeals. In taking the view that sec. 476 B is not intended to be exhaustive, the learned Judges of Calcutta and Madras High Courts were influenced by the absence of any provisions for dismissal of an appeal under section 476 B. They said that, if section 476 B is taken to be exhaustive, an appellate court under that section will have no power to dismiss an appeal. An answer has been furnished to this argument of the learned Judges by Suleman C. J. in the Full Bench ruling of Allahabad High Court quoted above. It would be profitable to quote the words of the learned Judge himself. He says - "in some cases much emphasis has been laid on the omission in S. 476-B of words indicating that the court may summarily dismiss the appeal without issuing notice. I quite agree that where the court is prepared to dismiss the appeal summarily, it need not issue notice to the opposite party. The words "may thereupon, after notice to the parties concerned etc. " mean that notice is necessary only where the court is going to reverse the decision. The meaning would have been different, if the words had been "after notice to the parties concerned, may direct the withdrawal etc. ". I do not think that the words as they stand make it incumbent upon the appellate court to issue notice to the opposite party even where it is prepared to dismiss the appeal summarily. It seems to me that whereas the reversal of the order of the subordinate court is discretionary, as the word "may" indicates, the power of dismissing the appeal is necessarily implied in section 476. "
(3.) IT is clear from the wordings of sec. 476 B that an appellate court is not bound to give a notice of the appeal to the parties concerned. IT may dismiss the appeal without sending any notice to the parties, but the only interference which it can make with the order of the subordinate court after notice to the parties concerned is that in case where the complaint has been made by the lower court, it may direct the withdrawal of the complaint or where the lower court has refused to make the complaint it may itself make a complaint. No other interference is allowed. But the appellate court is not bound to make such interference once it has issued notice to the parties. IT has got another power and it is that of not interfering with the order of the lower court i. e. of dismissal of the appeal. This power has not been expressly mentioned because the legislature thought that it can be read in sec. 476-B by necessary implication. Dismissal has not been mentioned under section 476-B, it is to be sought elsewhere in the Code and it is to be found in Chapter 31. To my mind sec. 476 B gives the power of dismissing the appeal summarily or after notice to the parties by necessary implication. IT expressly gives the power of interference with the order of the subordinate court only to this extent that either it may withdraw the complaint where it has been made by the lower court or it may itself make a complaint where the lower court has refused to make a complaint. No other power of interference can be read in the section either expressly or by necessary implication. The reason why sec. 476 B is self-contained is that tinder the said section appeals can be brought before a civil, revenue or criminal court. A separate procedure is given for appeals in civil courts under the Code of Civil Procedure. For appeals to revenue Courts another appropriate procedure is given, whereas for appeals in criminal courts general procedure is given in the Code of Criminal Procedure in sec. 476 which may be applied irrespective of the fact whether the court is civil, revenue or criminal. I find support for this view again from Suleman C. J. in the Full Bench case of Allahabad. The learned Judge says "if we were to hold that sec. 476 is not self-contained, and Ch. 31, Criminal P. C. , is ipso facto applicable because an appeal has been preferred from a criminal court, it may follow that in the case of an appeal from a civil court O. 41, Civil P. C, would be automatically applicable and another appropriate procedure in the case of an appeal from a revenue court. If O. 41, Civil P. C. , were to be applicable provisions for the demanding of security for costs and other in-congruent provisions like sending down an issue and the addition of parties may have to be invoked in it. Again, different High Courts would from time to time amend the rules and change the provisions. I very much doubt if the Legislature intended that an appellate court hearing an appeal under sec. 476 B should have different powers accordingly as it is hearing an appeal from a subordinate criminal, civil or revenue court. As sec. 476 is applicable to all such Courts, there is all the greater reason that it should be self-contained, and not stand in need of being supplemented by other provisions of the Code of Criminal Procedure. " In my view the learned Additional District Judge had no power to remand the case to the subordinate court. The appeal is, therefore, allowed. The order of the lower appellate court is set aside and the Case is sent back to it for decision in accordance with law. . ;