1. This is an application for revision by a petitioner, whose appeal to the Sessions Judge of Nasik has been rejected as time-barred.
2. It appears that the petitioner is being prosecuted on a charge of having made a false statement under Section 193 of the Indian Penal Code. A complaint against him was made by the First Class Magistrate, Malegaon Taluka, in the Court of the Sub-Divisional Magistrate at Malegaon on June 23, 1927. An appeal against this complaint was made beyond the period of thirty days from that date. But the appellant said that he only came to know of the complaint on August 6 and asked that the delay in presenting the appeal should be excused upon that ground. The Sessions Judge held that it was not true that he first knew of this complaint On August 6. The main reason he gives is that there had been a previous complaint against the petitioner in 1926, in which the petitioner appeared as an accused, but that that complaint was withdrawn for the technical reason, that it had not been signed by the Magistrate himself. That was in April or May 1927; and the appellant, therefore, knew that he was being prosecuted in the matter. It is contended by Mr. Valavalkar on his behalf that Section 476B of the Criminal Procedure Code only allows an appeal to be made after a complaint has actually been made, and that as the appeal was against the making of the complaint and not against the actual order on which that complaint was based, the case does not fall under Article 154 of the Indian Limitation Act, so as to be an appeal from an 'order' within the meaning of that Article. He, therefore, asks that the Sessions Judge's dismissal of the appeal should be set aside, In the alternative he contends that the finding of the Sessions Judge that the appellant did not know of the appeal till August 6, should be reversed, and the ease remanded to the Sessions Judge for disposal according to law.
3. I have given careful consideration to Mr. Valavalkar's contention. In my Opinion, an appeal in such a case is, in fact, one against the order of the Court directing a complaint to be made, for the petitioner, in appeal, will have to show that the reasons that the Court had for making a complaint and that are relied upon in its order, are erroneous. Under Section 476 of the Criminal Procedure Code the Court making the complaint has to 'record a finding' that enquiry, etc., should be made; and this 'finding' clearly comes under the word 'order' in Article 154 of the Indian Limitation Act. Section 476B gives the person affected a right of appeal from this order, but only after the complaint has been actually made.
4. In the circumstances it seems to me that the case falls under Article 154, the 'order' being the 'finding' under Section 476, when completed or supplemented by an actual complaint. Till the order is so supplemented, it is for the purposes of Section 476B incomplete, so that limitation only begins to run from the time that the complaint is actually made,
5. This is in accordance with the view taken by the Lahore High Court in Fitzholmes v. The Crown (1925) I.L.R. 7 Lah. 77. and I think that we should follow that decision.
6. Articles 150, 154, 155 and 157 are obviously meant to cover all orders under the Criminal Procedure Code, from which an appeal lies; and the Court should, in my opinion, lean to any reasonable construction, which would bring the case of an appeal under Section 476B within the category of those for which a period of limitation is prescribed. The case is a different one to that of applications that used to be made to revoke a 'sanction' under the old law. Those were held not to be 'appeals' and so not to come within any period of limitation prescribed by the Limitation Act: cf. Bapu v. Bapu I.L.R (1912) Mad. 750. and Pochai Meteh v. Emperor I.L.R (1912) Cal. 239.
7. The fact that an appellant may not know that a complaint has been filed till after the thirty days prescribed by Article 154 have expired is immaterial, as the appellate Court can excuse the delay under Section 5 of the Indian Limitation Act.
8. In the present ease, the Scissions Judge has refused to do this, and I do not think that there are any sufficient grounds for our interfering in revision. The basis of his refusal is disbelief of petitioner's allegation that he did not know of the complaint of June 23, 1927, till August 6, 1927, and this involves merely a questsion of fact and appreciation of evidence. It is not a case where the Judge has misdirected himself as to the law applicable to the consideration of the question, as occurred in Brij Indar Singh v. Kanshi Ram I.L.R (1917) Cal. 94. s. c 19 Bom. L.R. 866, p.c. I would, therefore, dismiss the application.
9. I agree.