Patna High Court
Mulchand R. Thacker vs Sm. Kamla Bai And Ors. on 24 August, 1966
Equivalent citations: AIR1967PAT166, 1967CRILJ641, AIR 1967 PATNA 166
ORDER Tarkeshwar Nath, J.
1. This application in revision is directed against the order of the District Judge directing that a complaint be lodged against the petitioner before the District Magistrate for the commission of an offence under Section 406, Indian Penal Code, and such other section as may be found applicable in connection with 200 tons of coal and 38 coal tubs which were entrusted to the petitioner on 25-6-1961 as surety after the attachment thereof under a a writ issued by the trial court.
2. The facts leading to the application are these. Devji Shivji, husband of opposite party No. 1 and father of opposite party Nos. 2 to 6, obtained a decree for Rs. 72851 against opposite party No. 7 and others in the court of the Subordinate Judge, Dhanbad, and in execution of the said decree realised Rupees 27,306/15/- and cost amounting to Rs. 4252/-from opposite party No. 7. Opposite party No. 7 filed an appeal against the said decree in High Court and the appeal was allowed and the decree against opposite party No. 7 was set aside. Thereafter, opposite party No. 7 filed Execution Case No. 66 of 1960 in the Court of the Subordinate Judge, 1st Court, Dhanbad, for restitution and refund of the amount of cost which had been realised from him. Opposite party No. 7 made a prayer for attachment of 200 tons of coal and 38 coal tubs lying within the colliery premises of Devji Shivji and an order of attachment was passed.
The attachment was effected on 25-6-1961 in Jeolgora Gobindpur Colliery and the attached articles were entrusted to the petitioner (brother of opposite party No. 7) as surety and he granted a receipt to that effect. The petitioner alleged that the attached, coal tubs remained in the colliery premises. On 13-7-1961 Devji Shivji deposited the amount for the realisation of which the attachment was effected and he filed a petition on 19-7-1981 for the return of the attached articles. By a notice dated 24-11-1961 the petitioner was directed to release the attached property by 8-12-1961. On receipt of the said notice, the petitioner filed an application on 8-12-1961 stating that the attached articles were never removed by him from the said colliery as they were very bulky and besides that, coal being a controlled commodity could not be removed without a permit. The petitioner expressed his willingness to point out the attached articles in the said colliery premises, if necessary.
By an order dated 16-0-1962 the petitioner was directed to point out the articles and deliver possession of them to the judgment debtor. On 23-6-1962 the petitioner filed an application staling that he could not go to the colliery for pointing out the attached articles on account of the obstruction by the judgment debtor. On 6-7-1962 the petitioner was directed to file an affidavit and on 9-7-1962 he filed an affidavit stating that the court peon had no doubt attached 38 tubs and 200 tons of coal within the premises of the said colliery but the coal tubs being heavy and there being no permit for the removal of the coal those articles could not be removed and they were put in his charge. He further staled that he as well could not remove the attached articles and they were still lying in the premises of the said colliery.
On 13-7-1962 one Krishna Chandra Sinha, an employee of Devji Shivji filed an affidavit alleging that the petitioner had removed 38 coal tubs and 200 tons of coal in a motor truck on 25-6-1961 and no part of the attached articles were lying in the colliery premises. On 20-7-1962 the court directed the petitioner to point out the attached articles and deliver them to Devji Shivji in presence of the Nazir and 8-8-1962 was the date fixed for that purpose but the petitioner could not go to the said spot and filed an application for some time. On 25-8-1962 the court again directed the petitioner to point out the articles in presence of the Nazir on 30-8-1962. On 31-8-1962 the Nazir submitted a report that the petitioner did not go to the spot but the petitioner filed an application stating that he did go to the spot and the Nazir was not available.
Subsequently, Devji Shivji filed an application on 6-10-1961 in the court of the Subordinate Judge. Dhanbad, alleging that the petitioner (surety) did not return the attached articles and he had committed the offence of criminal breach of trust. Devji Shivji made a prayer for an inquiry under Section 476. Criminal Procedure Code. This application was registered as Miscellaneous Case No. 68 of 1962 under Section 476, Criminal Procedure Code, and the petitioner was directed to show cause why action under the said section should not be taken against him for misappropriating the properties given in his custody by the court peon Jahmna Upadheya on 25-6-1961 in Execution case No. 66 of 1960. The petitioner showed cause stating that he had not misappropriated the articles attached, in any manner and he had not removed them from the colliery premises. According to him, those articles were still lying there. The Subordinate Judge held that there was no prima facie case against the petitioner (surety) and it was not at all expedient in the interest of justice to institute a criminal case against him. Accordingly, he rejected the petition of the judgment-debtor.
3. Devji Shivji died and hence his legal representatives (opposite party 1 to 6), being aggrieved by the said order of the Subordinate Judge filed a miscellaneous appeal under Section 476B of the Code of Criminal Procedure before the District Judge. Dhanbad. The learned District Judge took a contrary view and held that it was expedient in the interest of justice that a complaint should be made against the petitioner for his prosecution for commission of an offence under Section 406, Indian Penal Code, and such other appropriate section as may be found to be applicable in connection with the said attached articles which were entrusted to him. He allowed the appeal and set aside the order of the court below. Hence, the petitioner has filed this application for the setting aside of the order of the District Judge.
4. Learned counsel for the petitioner submitted that the provisions of Section 476 of the Code of Criminal Procedure were not applicable at all to the facts of the present case. The learned District Judge had come to the conclusion that it was expedient in the interest of justice to file a complaint against the petitioner for his prosecution for commission of an offence under Section 406, Indian Penal Code, and such other appropriate section as may be found to be applicable. Learned counsel contended that the offence under Section 406, Indian Penal Code, was not one of the offences mentioned in Section 195 (1) (b) and (c) of the Code of Criminal Procedure and as such the order in question for filing the complaint was without jurisdiction. The portion relevant of Section 476 (1) of the Code of Criminal Procedure for the present purpose reads thus:
"When any Civil, Revenue or Criminal Court is whether on application made to it in this behalf or otherwise, 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, Sub-section (1) Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, 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 . .. .".
The argument was that since the court was empowered to complain only in respect of offences mentioned in Clauses (b) and (c) of Section 195 (1), an order for a complaint by the District Judge for an offence under Section 406, Indian Penal Code, was erroneous. There can be no doubt that the offence under Section 406, Indian Penal Code, is not at all mentioned in Clauses (b) and (c) of Section 195 (1), Criminal Procedure Code. Learned counsel, in support of his contention referred to Sarbeswar Nath v. Emperor, AIR 1924 Cal 501. The order in that case was for the prosecution of certain persons under Sections 186, 353, 341 and 147, Indian Penal Code. Their Lordships pointed out that offences under Sections 353, 341 and 147 were not mentioned in Section 195, Criminal Procedure Code, and therefore Section 476 had no application to them and those were offences in regard to which the officers of the court and the servant of the decree holder' might institute proceedings direct without the intervention of the civil court.
5. Learned counsel for the petitioner referred to Bajrang Marwari v. Durga Prasad Sao, AIR 1937 Pat 31. The Munsif in that case had declined to pass an order for a proceeding against Nathmal and others under Section 183, Indian Penal Code, but the plaintiff Durga Prasad, being aggrieved by that order presented a petition before the District Judge describing it as an appeal under Section 476B, Criminal Procedure Code, and the appeal was entertained by the District Judge. Rowland J. pointed out that no such appeal lay to the District Judge and Section 476-B gave an appeal against the refusal of a Subordinate Judge to make a complaint under Section 476. His Lordship further observed that Section 476 was the section which gave a court power to make a complaint of an offence referred to in Section 195 (1), Clause (b) or (c).
I would refer to Rajshahi Banking and Trading Corporation, Ltd. v. Surendra Nath, AIR 1942 Cal, 434. The Secretary of the Rajshahi Banking and Trading Corporation, Lid. and two peons to whom the warrant of attachment had been handed over by the Nazir of the Court went to the defendant's residence and explained the contents of the warrant to the defendant but the defendant got angry and assaulted the Secretary and the two pcons. Thereupon the Bank moved the Subordinate Judge to take action in the matter against the defendant under Section 476/195, Criminal Procedure Code, in respect of an offence alleged under Section 186, Penal Code. The teamed Subordinate Judge refused to do so. This view was approved and their Lordships observed that Section 476, Criminal Procedure Code, had nothing to do with the matter.
Learned counsel for the petitioner referred to M. Durgaprasadarao v. C. Sunder Bhutt, AIR 1952 Mad 607. It was held in that case that no complaint for an offence under Section 183, Indian Penal Code, could be filed by a court, as Section 476, Criminal Procedure Code, applied only to cases falling within Section 195 (1), Clauses (b) and (c) of the Code of Criminal Procedure. He relied on Virindar Kumar Satyawadi v. State of Punjab, AIR 1956 SC 153 as well. The observation relevant for the present purpose in that case was that Section 476 applied only to offences mentioned in Section 195 (1) (b) and (c) and not to those mentioned in Section 195 (1) (a). The position thus is that a complaint cannot be made In respect of offences not referred to in Section 195 (1) (b) and (c). In other words, if the offence in question does not fall within the purview of Section 195 (1) (b) and (c), a court has no jurisdiction to make a complaint. The Court is empowered to complain only in respect of offences mentioned in Clauses (b) and (c) of Section 195 (1).
6. In view of the said provisions of sec-lions 195 and 476, Criminal Procedure Code, and the principles laid down in these decisions, it is necessary to examine the findings of the learned District Judge. He held that the petitioner's failure to go to the spot for pointing out the articles to the Nazir in spite of the direction of the Court and opportunities having been given to him twice for that purpose was sufficient to make out a prima facie case in support of the judgment-debtor's version that the articles were no longer lying at the spot and had been dishonestly misappropriated by the petitioner. He thus decided that it was expedient in the interest of justice that a complaint should be made against the respondent (before him) for his prosecution for commission of an offence under Section 406, Indian Penal code, and such other appropriate section as may be found to he applicable to the case.
In the order portion of his judgment as well, he "directed that a complaint be lodged against the respondent to the District Magistrate for the commission of an offence Under Section 406 I.P.C. and such other section as may be found applicable .. .. .. .. ". It is quite clear that his finding was that a complaint should be filed in respect of the offence under Section 406, Indian Penal Code. I have already indicated that this offence under Section 406, Indian Penal Code, was not at all mentioned in Clauses (b) and (c) of Section 195 (1), Criminal Procedure Code. Accordingly, I am of the view that the order of the learned District Judge for the filing of a complaint in respect of the offence under Section 406, Indian Penal Code, is without jurisdiction.
7. Learned counsel for the opposite party supported the order of the learned District Judge and submitted that apart from mentioning Section 406, Indian Penal Code, the learned Judge had used the expression "such other appropriate section as may be found to be applicable". He contended that on the receipt of the complaint, it was open to the Magistrate taking cognizance of the offence to frame charges under other sections as well of the Indian Penal Code and the learned Judge had at the present moment tentatively indicated the offence which was made out according to him.
He referred to Jamuna Singh v. Laldhari Singh, AIR 1934 Pat 536. The Munsif of Hajipur had filed a complaint against one Jamuna Singh for having used a handnote which the Munsif thought was forged. The Munsif did not fee! sure as to which section would apply to the facts of that case and, therefore, he mentioned a section which was not at all applicable but he had added the words "or in any other section which may apply in this case". On the strength of that complaint, cognizance was taken by the learned Magistrate. The chief point urged on behalf of Jamuna Singh was that there should have been a preliminary inquiry under Section 476 of the Code of Criminal Procedure before filing of the complaint but it was held that a preliminary inquiry was only discretionary and there was no error even if it was not held.
It appears that the Magistrate had framed a charge against Jamuna Singh under Section 471. Indian Penal Code. Learned counsel pointed out that, although the complaint in that case was curiously worded yet this Court refused to interfere. The question, however, as to whether Section 476 of the Code of Criminal Procedure was applicable docs not seem to have been raised in that case. Moreover, it is not clear from the decision as to whether the section which was mentioned by the Munsif in the complaint was one of the sections mentioned in Clauses (b) and (c) of Section 195 (1) of the Code of Criminal Procedure. The main point urged on behalf of Jamuna Singh was a different one as indicated above. This decision is thus of no avail to the opposite party.
8. Learned counsel for the opposite party relied on two decisions of the Allahabad High Court and the first one is in the case of B. Ambika Sahi v. Emperor, AIR 1948 All. 80. The Small Cause Court Judge (in that case) had issued a notice to the petitioners to show cause why they should not he prosecuted for offences under Sections 406 and 426. Penal Code. The petitioners failed to appear in answer to that notice and then the learned Judge passed an order that let a complaint be sent under Section 476 as prayed. A complaint was accordingly made by the court and it came up for disposal before a Magistrate of the First class. In that court the petitioners challenged the validity of the complaint principally on the ground that the offences with which the petitioners had been charged in the complaint were not mentioned in Clauses (b) and (c) of Section 195 (1). Criminal Procedure Code, and hence the Small Cause Court Judge had no jurisdiction to institute a proceeding under Section 470. Criminal Procedure Code.
This contention was rejected by the learned Magistrate on the ground that it did not appear from the contents of the complaint or other record that the court concerned had sent up the complaint specifically under Section 476, Criminal P. Code. He took the view that the complaint could be treated as an ordinary complaint by a court of offences alleged to have been committed under Section 406 and 426, Penal Code, and cognizance of the offences was rightly taken by the court. The same objection was taken in the High Court as well and Mulla J, observed thus:
"No argument is needed to show that the view taken by the learned Magistrate is, wholly wrong in law. No Court functioning as a Court is authorised to make a complaint except in accordance with the procedure laid down by the law in Section 476, Criminal P. C. It is evident, therefore, that the learned Small Cause Court Judge had no jurisdiction to make a complaint in the present case because the offences with which the applicants had been charged were not offences falling within the purview of Section 195, Criminal P. C. The complaint was not made by the learned Small Cause Court Judge in his private capacity. This is clear from the order passed by the learned Small Cause Court Judge himself which has been set out above and which appears to have been ignored by the learned Magistrate."
These observations support the view taken by me that the learned District Judge had no jurisdiction to make a complaint in respect of the offence under Section 406. Indian Penal Code, as the said offence did not fall within the purview of Clauses (b) and (c) of Section 195 (1). The next question which Mulla J, considered as to whether the whole proceeding should be quashed as desired by the petitioners and his Lordship took the view that although the complaint made by the Small Cause Court Judge might not be a complaint either made by the court under Section 476. Criminal Procedure Code, or by a private individual but it certainly was information within the meaning of Section 190 (1) (c), Criminal Procedure Code, upon which the Magistrate could take cognisance of the offences with which the applicants had been charged. His Lordship expressed no opinion as to whether offences under Sections 406 and 426 had been committed and left this mailer to be considered by the learned Magistrate on giving an opportunity to the petitioners, for showing that, no offence had really been committed. The application in revision was dismissed.
Learned counsel for the opposite party relying on this decision submitted that in the present case as well, if for any reason, the order for filing a complaint in respect of the offence under Section 406. Indian Penal Code, was erroneous or without jurisdiction then the complaint should be treated as an information within the meaning of Section 190 (1) (c). Criminal Procedure Code, and the case should proceed against the petitioner. It is not possible to accept this contention. The District Judge was hearing an appeal under Section 476-B of the Code of Criminal Procedure directed against the order of the learned Subordinate Judge who had refused to file a complaint and Section 476-B itself provides inter alia that the superior Court may itself make the complaint which a subordinate court might have made under Section 476, and, if if makes such a complaint the provisions of that section shall apply accordingly. The position thus is that the learned District Judge in the present case decided to make a complaint which the Subordinate Judge himself could have made under Section 476.
In other words, the superior court while making a complaint has to follow the procedure prescribed by Section 476 and record the necessary finding as required by that section. The learned District Judge exercised his powers under Section 476-B for the filing of a complaint and it cannot be held that he was giving an information within the meaning of Section 190 (1) (c). Criminal Procedure Code. In support of this conclusion. I can usefully refer to AIR 1937 Patna 31 (already referred to above on another point). It was urged in that case for the Crown that the District Judge being a public servant to whom the peon was subordinate had an independent power of his own under Section 195 (1) (a) of the Code to make a complaint, and that if a District Judge made a complaint under that provision the order was an administrative one.
Rowland J. held that that might be so but the District Judge in that case had purported to act as a Court and the District Judge did not pass that order in any other capacity, that is to say, in the capacity of a public servant to whom the peon was subordinate. The procedure for taking action against a person who committed the , offences mentioned in Clauses (b) and (c) of Section 195 (1), Criminal Procedure Code, has been laid down in Section 476 and a complaint can be filed even by a superior court while dealing with an appeal under Section 476-B and if either the trial court or the appellate court acts under those provisions it cannot be held that they were laying information under some other provision of the Code. On this point, I am not able to agree with fee view taken by Mulla J. in the case referred to above.
9. The other decision of the same Court relied upon by learned Counsel for the opposite party is in Ram Brichha Misra v. mperor, AIR 1948 All. 121. The revision there was against the applicant's conviction under Section 186, Penal Code, for having obstructed a commissioner appointed by a civil Court in his attempt to enter his house in order to attach articles. A complaint in that case had been filed by the Munsif and he had indicated that he was making the complaint under Section 182 of the Penal Code for the trial of the accused for that offence. The argument was that on that complaint the accused could not have been tried and convicted of an offence under Section 186, Penal Code, because the Court did not lodge the complaint for trial under Section 186, Penal Code, as required by Section 195 (1) (a). Criminal Procedure Code. This contention was repelled and it was held that the mis-description of the section of the Penal Code with reference to the offence made out by the facts alleged did not vitiate the complaint, inasmuch as when a complaint was made to the court tinder Section 195. Criminal Procedure Code, the criminal court was free to frame any charge on the basis of those facts.
Dayal. J, observed that omission to mention the offence made out by the facts or mentioning a wrong section did not invalidate a complaint and did not take away the jurisdiction of the court to whom the complaint was made to try a person complained against for any of the offences which could be made out on the basis of the allegations in the complaint. His Lordship held that the criminal court took cognizance of the case on the complaint of the Munsif and was competent to try the accused for any offence made out against him on the material on record; especially when the offence made out was based on the facts alleged in the complaint lodged by the Munsif. There was thus no illegality in the conviction of the applicant and the application in revision was dismissed. The facts of that case were quite different. The petitioner there had moved the High Court after his conviction by the Magistrate but in the present case the petitioner has come up to this Court against the order for the filing of a complaint. Besides this, the offences under both the Sections 182 and 186 of the Indian Penal Code have been mentioned in Section 195 (1) of the Code of Criminal Procedure and in case of commission of an offence under those sections a complaint had to be filed by the public servant concerned. It was not the position in that case that a complaint had been made in respect of an offence which did not at all come within the purview of Section 195 (1) (a). Criminal Procedure Code, or the other Clauses (b> and (c) of that sub-section. This decision is thus of no assistance to the opposite party.
10. With regard to the contention of learned counsel for the opposite party that the learned Judge had mentioned the expression "such other appropriate section as may be found to be applicable to the case" in his order and that was sufficient the relevant question is as to which court would ascertain the "appropriate section"? It is true that when the Magistrate takes cognizance of an offence it would be open to him to frame charge under one or the other section of the Indian Penal Code, but that would be at a stage subsequent to the receipt of the complaint and the taking of the cognizance. If the order to file a complaint or the complaint itself does not indicate the "appropriate section" there is no other court which will intervene between the filing of the complaint and the taking of the cognizance for determining the "appropriate section" The complaint dated 11-3-1964 in the present case subsequent to the order of the learned District Judge mentioned Section 406. Indian Penal Code, in the heading but the prayer was that the accused be proceeded against for commission of an offence under Section 406, Indian Penal Code, and such other section or sections as may be found applicable.
The position thus is that the complaint actually filed does not improve the matter any further and it is in the same terms in which the learned Judge passed the order which has been impugned in this case Section 476 (1) Criminal Procedure Code, provides that the court has to record a finding that an inquiry should be made into an offence referred to in Section 196, Sub-section (1), Clause (b) or Clause (c) and the said offence appears to have been committed. If the contention of learned counsel for the opposite party is to be accepted then the position would be that mere saving in the order for the filing of the complaint that the person concerned should be proceeded against for commission of an offence which may be found to be appropriate and applicable would be quite sufficient. I find it extremely difficult to accept this contention. An order of this kind cannot be countenanced and such a vague order cannot be accepted as valid. Taking for instance, if the order to file a complaint indicates only this much that the person concerned should be proceeded against for an offence which would be found applicable, it will not be at all possible for a superior court to determine the offence in respect of which that order was passed. An order of that kind would never fulfil the requirements of Section 476 (1). Criminal Procedure Code.
11. Learned counsel for the opposite party referred to Kuldip Singh v. State of Punjab. AIR 1956 SC 391 and submitted that it was open to this Court to remand the case to the learned District Judge, if the order in question was not valid for any reason. The facts of the case were entirely different. Mr. Barlow (Subordinate Judge) had held that the receipt did not appear to be genuine document and that the appellant's evidence was not true. A preliminary decree was passed against the appellant and the decree was up held even by the High Court. The plaintiff then made an application in the Court of Mr. W. Augustine, who is said to have succeeded Mr. Barlow as Subordinate Judge of the first class, asking that a complaint be filed against the appellant under Sections 193 and 471. Penal Code. But before it could be heard Mr. Augustine was transferred and no Subordinate Judge of the first class was appointed in his place. Mr. K.K. Gujral, a Subordinate Judge of the fourth class, was sent to that area and he was asked to decide that matter but he made a report to the District Judge that he had no jurisdiction because the offence had been committed in the Court of the Subordinate Judge of the first class.
The District Judge thereupon transferred the matter to the Senior Subordinate Judge Mr. Pitam Singh and that officer made the complaint which was under consideration by the Supreme Court. The appellant filed an appeal against that order to the Additional District judge Mr. J. N. Kapur and the learned Judge held that the Senior Subordinate Judge (Mr. Pitam Singh) had no jurisdiction to make the complaint because he was not Mr. Barlow's successor. He also held, on the merits, that there was no prima facie case. The matter went to the High Court in revision and the High Court held the Senior Subordinate Judge had jurisdiction and that the materials disclosed a prima facie case. Accordingly, the High Court set aside the Additional Judge's order and restored the order of the Senior Subordinate Judge making the complaint. Their Lordships held that the Senior Subordinate Judge Mr. Pitam Singh had no jurisdiction, to entertain that matter and the Additional Judge Mr. J. N. Kapur, who had called himself an Additional District Judge also had no jurisdiction.
Another observation was that the High Court was right so far it set aside the order of Mr. Kapur, Additional Judge, but it went wrong in upholding the complaint made by the Senior Subordinate Judge. Their Lordships further observed that Section 195 contained an express prohibition against taking cognizance of the kind of complaint which was in that case, unless the bar was lifted either by the original court or the court to which it was subordinate within the meaning of Section 195 (3) and even the High Court in that case was not a superior court within the meaning of Section 195 (3) with the result that the High court as well had no jurisdiction to make the complaint of its own authority. Their Lordships indicated that the High Court could and should have sent the case to the District Judge for disposal according to law. In that view of the matter, their Lordships sent the case to the District Judge for dealing with the application for the making of a complaint.
The reason for remitting the application for the making of a complaint to the District Judge was that Mr. J. N. Kapur, the Additional Judge was not at all competent to exercise any power in that matter and it was only the District Judge who was competent to exercise the powers inasmuch as appeals lay before him as an appellate court against the orders of the original court either making a complaint or refusing to make a complaint. The position thus was that the appeal against the order of Mr. Pitam Singh was not heard by a court which had jurisdiction to hear the appeal and in those circumstances the application was sent to the District Judge. In the present case, the appeal was heard by the District Judge and he had jurisdiction to hear it. I do not find any jurisdiction for remanding the case to him for recording another finding on merits.
12. Learned Counsel for the opposite party submitted that this Court should not interfere in revision as the powers under Section 115 of the Code of Civil Procedure were limited and in support of it he referred to Keshardeo Chamria v. Radha Kissen. AIR 1953 SC 23 There can be no doubt about this proposition but the High Court is entitled to set aside an order of a court subordinate to it, if the order was without jurisdiction and, therefore, there is no bar to interference.
13. Learned Counsel for the opposite party submitted that the coal and the tubs in question (articles attached) were admittedly in charge of the petitioner hut he refused to return them and thus there was a prima facie case against him According to him, on those facts an offence under Section 206, Indian Penal Code, was made out as held in Crown Prosecutor v. T. Sellamuthu, AIR 1940 Mad 271. He further pointed out that Section 206 was one Of the sections mentioned in Clause (b) of Section 195 (1), Criminal Procedure Code, and submitted that the petitioner could be proceeded against in respect of the offence under Section 206, Indian Penal Code. This, however, is not the finding of the learned Judge in the order which is the subject-matter of revision and it is not proper to express any opinion on this point. This was a matter to he considered by the court which filed the complaint.
14. Learned Counsel for the petitioner further submitted that on reading together the provisions of Section 476 (1) and Section 195 (1) (b). Criminal Procedure Code, the order of the Subordinate Judge refusing to make the complaint was not appealable to the District Judge inasmuch as Section 406, Indian Penal Code, was not one of the sections mentioned in Clause (b) of Section 195 (1). In support of it he relied on AIR 1956 SC 153 (already referred to on another point). He relied on a passage appearing at page 156 of that decision which reads thus:
"The result then is that if the complaint relates to offence mentioned in Sections 195 (1) (b) and 195 (1) (e), an appeal would be competent, but not if it relates to offences mentioned in Section 195 (1) (a)."
It is not necessary to deal with this point in view of my conclusion that the order of the learned District Judge was without jurisdiction. Learned Counsel for the petitioner took another objection that Devji Shivji having died after the order of the Subordinate Judge his heirs and legal representatives (Opposite party Nos. 1 to 6) were not at all competent to file an appeal before the District Judge under Section 476-B, Criminal Procedure Code, and in support of it he referred to Hafiz Nehal Ahmad v. Ramji Das, AIR 1925 All 620. Mukherji, J. held that the language of Section 476-B did not indicate that any legal representative of the deceased appellant could file an appeal, or support it on the death of the appellant. It is not necessary to decide even this point as the application succeeds on the other grounds.
15. In the result, the application is al lowed and the order of the learned District Judge is set aside. Parties will bear their own cost throughout.