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Somabhai Valabhbhai Vs. Aditbhai Parshottam - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberAppeal No. 128 of 1924
Judge
Reported inAIR1924Bom347; (1924)26BOMLR289
AppellantSomabhai Valabhbhai
RespondentAditbhai Parshottam
Excerpt:
.....not ordinarly exercised-discretion of lower courts.;no appeal lies, under the provisions of the criminal procedure code, against an order made by the courtt to which the court making a complaint under section 176 is subordinate.;although the high court may, in extraordinary cases, exercise revisional powers in cases falling under section 476 b of the criminal procedure code, yet generally speaking where the lower appellate court withdraws a complaint inside under section 476, it is very difficult for the high court to interfere in revision.;the question whether a complaint should be made under section 476 is almost invariably a matter of discretion, and if the trial court or the court to which it is subordinate thinks that no complaint should be made, it is not desirable that the high..........penal code. the subordinate judge did not comply with the provisions of section 476 of the amended criminal procedure code by which the court is directed, incase it thinks that proceedings should be taken, to make a complaint in writing signed by the presiding officer of the court and forward the same to a magistrate of the first class having jurisdiction.2. against the order of the subordinate judge dated september 29, 1923, an appeal was filed to the sessions judge of ahmedabad and under section 476 b, criminal procedure code. the judge allowed the appeal and directed that the sanction against the appellants should be withdrawn. there again the learned judge has not followed the provisions of section 476 b because he should have directed withdrawal of the complaint.3. from that order.....
Judgment:

Norman Macleod, C.J.

1. The petitioner in this case prayed for an inquiry under Section 476, Criminal Procedure Code, into offences alleged to have been committed by the opponents under Sub-section 193, 209, 465, 471 and 114, Indian Penal Code. The Subordinate Judge, after holding an inquiry, directed that the opponents should take their trial before the Court of the First Class Magistrate of Nadiad for offences under Sub-sections 193, 465, 471 and 209, Indian Penal Code. The Subordinate Judge did not comply with the provisions of Section 476 of the amended Criminal Procedure Code by which the Court is directed, incase it thinks that proceedings should be taken, to make a complaint in writing signed by the presiding officer of the Court and forward the same to a Magistrate of the First Class having jurisdiction.

2. Against the order of the Subordinate Judge dated September 29, 1923, an appeal was filed to the Sessions Judge of Ahmedabad and under Section 476 B, Criminal Procedure Code. The Judge allowed the appeal and directed that the sanction against the appellants should be withdrawn. There again the learned Judge has not followed the provisions of Section 476 B because he should have directed withdrawal of the complaint.

3. From that order in effect directing withdrawal of the complaint the petitioner has filed an appeal. The first question is whether the appeal lies. We are clearly of opinion that no appeal lies under the provisions of the Code against an order made by the Court to which the Court making a complaint is subordinate.

4. The only question is whether we should entertain application in revision under Section 439, Criminal Procedure Code. It must be noticed that Section 439 of the amended Code makes no mention of Section 195, Indian Penal Code, which was referred to in Section 439 before the Code was amended. Therefore, unless we take a very wide view of our powers under Section 439, it would not be competent to this Court to revise an order such as the one made in this case.

5. At the same time wo are not anxious to lay down any such principle which would prevent us from exercising revisional powers, in extraordinary cases, although, generally speaking, where the lower appellate Court has thought fit to withdraw a complaint made under Section 476, it would be very difficult for this Court to interfere in revision. I think that the question whether the complaint should be made under Section 476, Criminal Procedure Code, is almost invariably a matter of discretion and if the trial Court or a Court to which it is subordinate thinks that no complaint should be made, then it would not be desirable that this Court should interfere. In any event in this case the Sessions Judge has considered that no complaint should be made, and we are not disposed to interfere with that order.


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