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Emperor Vs. Govind Hari Prabhu Mirashi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Appeal No. 401 of 1934
Judge
Reported inAIR1935Bom157; (1935)37BOMLR106
AppellantEmperor
RespondentGovind Hari Prabhu Mirashi
Excerpt:
criminal procedure code (act v of 1898), section 476b - high court-appeal-whether appeal lies against order passed by district fudge directing prosecution.;where a subordinate judge refuses to direct a prosecution under section 476 of the criminal procedure code, but the district judge on appeal reverses the finding and orders prosecution under section 476b, no further appeal lies to the high court from the order passed by the district judge.;ahamadar rahman v. dwip chand chowdhury (1927) i.l.r. 55 cal. 765, followed.;ranjit narain singh v. rambahadur singh (1925) i.l.r. 5 pat. 262 and narayan meher v. dhana mehar (1930) i.l.r. 10 pat. 446, dissented from.;somabhai vallavghai v. aditbhai parsottam (1924) i.l.r. 48 bom. 401 : s.c. 26 bom. l.r. 289, referred to. - john beaumont, kt., c.j.1. this is an appeal from an order of the, district judge of ratnagiri by which he directed that the appellant should be prosecuted for an offence under section 193 or section 209 of the indian penal code. the relevant facts are that an application to sanction such a prosecution by the ,! subordinate judge in or in relation to whose court the alleged offence had been committed was made under section 476 of the criminal procedure code, and was rejected by the subordinate judge, who considered that there was no sufficient cause to direct a prosecution. then there was an appeal to the district judge under section 476b of the code, and the learned district judge took the view that there was a prima facie case against the present appellant for proceeding under section.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from an order of the, district Judge of Ratnagiri by which he directed that the appellant should be prosecuted for an offence under Section 193 or Section 209 of the Indian Penal Code. The relevant facts are that an application to sanction such a prosecution by the ,! Subordinate Judge in or in relation to whose Court the alleged offence had been committed was made under Section 476 of the Criminal Procedure Code, and was rejected by the Subordinate Judge, who considered that there was no sufficient cause to direct a prosecution. Then there was an appeal to the District Judge under Section 476B of the Code, and the learned District Judge took the view that there was a prima facie case against the present appellant for proceeding under Section 209 of the Indian Penal Code, and he, therefore, set aside the lower Court's order, and directed that a complaint against the present appellant be lodged. From that order this appeal is brought, and a preliminary point is taken by the Government Pleader that no appeal lies against an order made by the lower appellate Court under Section 476B. It was held by this Court in Somabai Vallavbhai v. Aditbhai Parshottam ILR (1924) Bom. 401 : S.C. 26 Bom. L.R. 289 that where a prosecution had been sanctioned by the Subordinate Judge under Section 476, and his order was set aside on appeal by the District Judge, there was no second appeal to this Court, and that proposition has not been contested. But it is said that where the Subordinate Judge refuses to lodge a prosecution, and that order is reversed by the District Judge under Section 476B, and the District Judge himself lodges a complaint, then the District Judge is in effect acting in respect of the complaint as a Court of first instance, and a right of appeal is permitted to this Court. That view has prevailed in the Patna High Court in Ranjit Narain Singh v. Rambahadur Singh I.L.R. (1925) Pat. 262, where the whole question is elaborately discussed, and in Narayan Meker v. Dhana Meher I.L.R. (1930) 10 . 446, where the earlier decision of that Court was followed. The view of the Patna Court is that where, as in this case, the Subordinate Judge refuses to prosecute, and the District Judge sets aside the order and files a complaint under Section 476B, then under the last words of that section the provisions of Section 476 apply to such complaint. Then it is said that the earlier part of Section 476B provides that any person against whom a complaint has been made may appeal to the Court to which the Court lodging the complaint is subordinate, and as the District Judge's 'Court is subordinate to the High Court, a right of appeal is given by the express words of Section 476B in such a case to the High Court. That view has been dissented from by the Calcutta High Court in Ahamadar Rahaman v. Dwip Chand Chowdhury I.L.R.(1927) Cal. 765, the view of the Calcutta Court being that only one right of appeal against an order made under Section 476 is allowed, and that it makes no difference whether the result of the appellate Court's order is to quash a projected prosecution, or to initiate a prosecution. In either case there is no right of further appeal. No doubt the result of the view taken by the Patna Court, namely, that whether there is a right of appeal against an order made under Section 476B depends on the nature of such order, that is to say, whether it is an order which initiates or prevents a prosecution, is rather singular, but if on a fair construction of the section that result follows, we have no option but to give effect to it. But, to my mind, the answer upon the language of the, section to the view taken by the Patna Court is this, that under Section 476B a right of appeal is given to the person against whom such a complaint has been made, and such a complaint means in the context a complaint under Section 476 or Section 476A, and the section does not in terms give a right of appeal against a complaint made under the section itself, that is to say, under Section 476B. It is clear that in the case with which we are dealing, the complaint made by the District Judge is made under Section 476B. The fact that when the complaint is made under Section 476B the provisions of Section 476 are to apply to it does not affect the question. The District Judge can only make the complaint under Section 476B, and that being so, according to the strict language of the section, no right of appeal is given. I think, therefore, that the view of the Calcutta Court is to be preferred, and that there is no right of appeal to the High Court from the District Court in respect of an order made under Section 476B, of whatever character that order may be. That being so, the preliminary point must prevail, and the only question which remains is whether we ought to deal with this matter in revision,

N.J. Wadia, J.

2. I agree.

3. THE appeal was then allowed to be converted into a revision application, .and the application was heard on merits.

4. (delivering judgment on merits concluded :) It appears to us that the mention by the darkhastdar in his previous darkhast that the whole amount of Rs. 100 had been received shows conclusively that there could have been no deliberate intention to deceive, and we see no reason why the explanation given by the pleader should not be accepted. On these facts we do not think there is any chance of a prosecution succeeding. We, therefore, think that the order made by the District Judge directing the prosecution of the petitioner should be set aside,

Beaumont, C.J.

5. I agree.


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