1. This is an application from a complaint made by the Sessions Judge of Aligarh on 18th October 1942. The order allowing this complaint to be made is dated 23rd January 1942, nearly ten months, previously. I do not know why the learned Sessions Judge waited for ten months to draft a regular complaint which consists of half a page of typewritten matter. Proceedings under Section 107, Criminal P.C., were started in the Court of the S.D.M. at the beginning of 1939 and on 8th August 1940, the S.D.M. came to the conclusion that there was no likelihood of the breach of the peace. He, therefore, dismissed the application and discharged the accused. On 30th September 1940, an application was made by Chandra Shekhar against three persons that proceedings should be taken against them under Section 476, Criminal P.C. Nearly a year later on 10th July 1941, this application was dismissed in default owing to the absence of Chandra Shekhar. On 6th August 1941, an appeal was filed against this dismissal in default on the back of which the Munsarim wrote'an unsatisfactory note as follows : 'If the order appealed against amounts to refusal, the appeal lies.' The Munsarim should have given his opinion one way or the other. It is certain that an appeal did not lie to the Sessions Court but that Court could have written a considered order under Section 476A and an appeal would then have lain to the High Court under Section 476B. As the Sessions Court has wrongly taken up the matter in appeal from an order dismissing the application in default, there has been no proper appeal at all, the proceedings in this Court being on revision.
2. I do not think that any further steps should be taken against Niranjan Lal considering that the original application under Section 107 was dismissed in August 1940 and the first application in the Magistrate's Court under Section 476, Criminal P.C., was dismissed in default nearly a year later. The procedure is as follows. If the original Court records a finding and makes a complaint or refuses to make a complaint under Section 476, Criminal P.C., an appeal lies under Section 476B; a dismissal in default does not amount to a refusal. If there is such a dismissal, the Court concerned under Section 476A on application or on its own motion may make a complaint or refuse to make it, in which case an appeal lies to the High Court if the order is made by a Sessions Court. A dismissal in default under Section 476A does not amount to a refusal and in the event, of such dismissal by a Sessions Court, an application in revision lies to the High Court. An appeal under Section 476B can only be filed, therefore, from an order containing a complaint or from an order refusing to make a complaint giving reasons i.e., from an order equivalent to a judgment. The application is allowed and the order containing the complaint of the Sessions Judge, dated 18th October 1942, is set aside.