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Chhajoo Vs. Radhey Shyam - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Appeal No. 175 of 1964
Judge
Reported inAIR1968All296; 1968CriLJ1218
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 419, 476, 476(1) and 476B; Limitation Act, 1908 - Schedule - Articles 154 and 155; Code of Civil Procedure (CPC) , 1908; Indian Penal Code (IPC), 1860 - Sections 193 and 199
AppellantChhajoo
RespondentRadhey Shyam
Appellant AdvocateS.D. Misra, Adv.
Respondent AdvocateBishun Singh and ;B.C. Agarwal, Advs.
Excerpt:
criminal - intention of legislature - interpretation of statute - intention of legislature has to be gathered from the plain meaning of the words used in the statute - duty of court - not only fill in the gaps but remove the ambiguity also. - - ,where most of the cases above referred to were considered and it was held that the words 'complaint has been made' clearly denoted that it is the making of the complaint itself that entitles the concerned person to lodge an appeal. it may as well be an appeal from the order of a civil or revenue court. in 1950 (2) ah er 1236: we sit here to find out the intention of parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. in order,.....g.d. sahgal, j.1. the respondent to this appeal submitted to this court a petition under article 226 of the constitution for a writ of mandamus in which the appellant was arrayed as one of the opposite parties. the writ petition was allowed. later on the respondent who was the petitioner in those proceedings moved an application under section 478 of the code of criminal procedure for proceeding against the appellant praying that in the interests of justice after a preliminary inquiry a complaint under section 193 read with section 199, indian penal code he preferred against the appellant. the application came up for hearing before (sic) brother nigam who had decided the writ petition. after holding an inquiry he recorded a finding that it was expedient in the interests of justice that an.....
Judgment:

G.D. Sahgal, J.

1. The respondent to this appeal submitted to this Court a petition under Article 226 of the Constitution for a writ of mandamus in which the appellant was arrayed as one of the opposite parties. The writ petition was allowed. Later on the respondent who was the petitioner in those proceedings moved an application under Section 478 of the Code of Criminal Procedure for proceeding against the appellant praying that in the interests of justice after a preliminary inquiry a complaint under Section 193 read with Section 199, Indian Penal Code he preferred against the appellant. The application came up for hearing before (sic) brother Nigam who had decided the writ petition. After holding an inquiry he recorded a finding that it was expedient in the interests of justice that an inquiry be held as to whether an offence under Section 193 read with Section 199 of the Indian Penal Code which is mentioned in Clause (1) (b) of Section 195 of the Code of Criminal Procedure has been committed. As a result thereof he directed that a complaint he made against the appellant in respect of certain acts mentioned in the order. He also directed the counsel for the respondent (the applicant before him) to submit a draft of the complaint with a list of the witnesses and the documents He further directed that the complaint be preferred by the Deputy Registrarunder his signature to the District Magistrate, Bahraich. The appeal in which this reference as been made to the Full Bench is directed against that order.

2. It is common case of the parties that though the draft of the complaint has been submitted as directed by the learned Judge, it has not yet been approved and signed by the Deputy Registrar, much less lodged in the Court of the District Magistrate, Bahraich. In this State of affairs a preliminary point was raised on behalf of the respondent to the effect that the appeal was premature and should be dismissed on that ground. The preliminary point was supported by the authorities of this Court, Mohammad Illayas v. State of Uttar Pradesh : AIR1954All225 and Ramchandra Soti v. State of Uttar Pradesh : AIR1963All352 and if those two authorities are followed it should prevail. The Bench before whom the appeal came up for hearing and of which one of us was a member, however, felt doubtful as to whether the law laid down in these two authorities is correct and as such for obtaining an authoritative pronouncement the matter was referred to a Full Bench. That is how the case comes up before us for deciding whether the preliminary point raised in the appeal that the appeal is premature has any substance.

3. Having heard the learned counsel at length we now proceed to determine the question that has been referred to this Bench.

4. The appeal has been filed under the provisions of Section 476-B of the Code of Criminal Procedure which provides :--

'476-B. Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under Section 476 or Section 476-A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195 Sub-section (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate Court might have made under Section 476, and, if it makes such complaint the provisions of that section shall apply accordingly .

It would thus appear that a right of appeal has been given to the applicant on whose application the Court has refused to make a complaint and also to a person against whom a complaint as contemplated under Section 476 has been made. There is no difficulty about the case of the person filing an appeal on vhose application the Court has refused to make a complaint; for, such an order will be passed simultaneously with the finding under Section 476 that it is not expedient in the interests of justice to file a complaint and the right would accrue as soon as such a finding is given.

The difficulty, however, arises in a case where a complaint is filed, for in such a case finding has first to be recorded as to the expediency in the interests of justice of filing such a complaint and it is only thereafter that a complaint can be made. The law gives the right of appeal to the person affected after the complaint has been made, for the words used are 'againstwhom such complaint 'has been made' (the underlining (here in ' ') is ours) giving the plain meaning to the words 'complaint has been made'. As the complaint has not yet been made in the instant case the appeal may appear to be premature. The point, however, is not so simple as it at first appears and we have to probe into the matter further to arrive at the meaning of the words 'complaint has been made'.

'476 (1) 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, and may take sufficient security for the appearance of the accused before such Magistrate.

'Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.

5. From this it would appear that the Court has to record a finding whether in ihe interests of justice an inquiry should be made into the offence. If it records a finding in the negative, then it has to refuse to make a complaint. But if the finding is in the affirmative, it has to make a complaint of the offence contemplated in writing to be signed by him in the case of the High Court it has to be signed by such officer of the Court as the Court may appoint under the proviso to the section. After such a complaint has been signed by the presiding officer, or in the case of a High Court, by such officer as the Court may appoint, it snail be forwarded to a Magistrate of the first class having jurisdiction.

6. It may appear that Section 476 (1) does not specifically contemplate the passing of an order. It contemplates the giving of a finding for the purpose of the making of a complaint and the forwarding of the same to the Magistrate concerned. The passing of an order that a complaint be made, however, is implicit in case the Court comes to the conclusion that it is expedient in the interests of justice that an inquiry be made into offences referred to in the section. The finding itself does not amount to the making of a complaint. The stage of the making of a complaint comes after the finding has been recorded. After the finding has been recorded about the expediency of making an inquiry into the offence the Court will in the nature of things pass an order that a complaint be made.

Thus though the section may not provide specifically for the passing of an order after the recording of the finding, for the making of a complaint, but that is what the Court shall have inevitably to do before the making of the complaint. There shall always be some time, however small, between the recording of the finding contemplated under Section 476 (1) and the making of the complaint, in pursuance thereof. After giving the finding the complaint has first to be drafted and then made. An order, therefore, has to be made simultaneously with the recording of the finding that a complaint be made. It is, therefore, wrong to say that Section 476 (1) does not contemplate the passing of any order. It may not specifically mention about the passing of any order but the passingof an order is contemplated and even if it is not passed, it is implied

7. As to when a complaint is actually made, it has been held by Desai, ]., of our Court (as he then was) in : AIR1954All225 , that a complaint is made when it is signed by the presiding officer or such officer of the Court in the case of a High Court as the latter may appoint, the act of forwarding it to the Magistrate being only a ministerial act. According to that view, therefore, no right of appeal arises till the complaint has been actually signed. Further, it was held that it is not necessary that the complaint should actually be transmitted to a Magistrate and be received by him before the right arises. Justification tor this view has been found in the wordings of the section which contemplate the making of the complaint in writing signed by the presiding officer of the Court and in the case of a High Court, by such officer as it may appoint, and the forwarding of the same to a Magistrate of the first class having jurisdiction, the stages of the making of the complaint and the forwarding thereof being two different stages. The conclusion to which Desai, J., arrived was that the making of the complaint took place when the same was signed, the act of forwarding it to a Magistrate being only a ministerial act.

8. It is not necessary in this case to exa mine this view for the purpose of deciding whether it is correct or not though we are inclined to the view that the words relating to the forwarding of the complaint to the Magistrate concerned have been provided in the section to emphasise the fact that the presiding officer himself, or the officer appointed to sign the complaint in the case of the High Court, himself need not present the complaint.

9. This view of Desai, J., was subsequently confirmed by a Division Bench of this Court in : AIR1963All352 in which Desai, C, J., stuck to his view expressed in Mohammad Illyas's case and he was supported by B. L. Gupta, J., in that view.

10. In lagan Prasad v. State, 1957 All LJ 17, it was held that the law did not provide for an appeal against an order directing the filing of a complaint where a complaint itself has not been made in pursuance of the order The point as to when a complaint must be deemed to have been made, i. e., whether on its being signed by the presiding officer or the officer of the Court in the case of the High Court or on its actually being received by the Magistrate was neither raised nor decided.

11. In Sunder Lal v Badri Prasad 1957 All LJ 953, though the question did not directlyarise, Raghubar Dayal, J., was of the opinion that it would not be stretching the language of Sec, 476-B of the Code of Criminal Procedure if it be considered that an order under Section 476 (1), Criminal Procedure Code comes within the expression 'making of a complaint' by the Court concerned. As such it was ooserv-ed that an appeal Bled under Section 476 before the actual making of the complaint but after the recording of a finding that it was expedient in the interest of justice that a complaint be made is valid.

12. In Ram Prasad Singh v. State : AIR1959All529 , another Judge of this Court, viz. V. D. Bhargava, J., observed that there was no provision in the Code of Criminal Procedure after the passing of the order directing a complaint to be filed, lor a Magistrate to take any further action After the order of the Court for lodging a complaint it is only a ministerial action which has to be performed by the office and no further order is necessary from the Court. Thus it was held that an appeal always lies from an order of the Court passed under Section 476 Cr. P. C and not from its actual execution by the office.

13. We would thus see that in all the above three cases viz. 1957 All LJ 17, 1957 All LI 953 and : AIR1959All529 , it was presumed that an order is passed for the filing that it was expedient in the interests of justice that a complaint be made. None of the Judges seems to have taken the view that what is required under Section 476 (1) is that only a finding has to be given about the expediency in the interests of justice of making a complaint and that no order has to be passed.

14. The matter came up before other High Courts also from time to time. It came up before the Lahore High Court in the case of Fitzholmes v. Emperor AIR 1927 Lab 54, where it was observed that the law did not contemplate that any great interval should elapse between the passing of a formal order directing a complaint to be made and the actual making of the same, and, therefore, an appeal is allowed not from the finding of the Court that a complaint should be made but from the complaint itself. The learned single judge held that the time begins to run from the date on which the complaint is made. It was not decided in that case as to when the complaint will be deemed to have been made. i. e., whether it would be deemed to have been made when it was signed by the presiding officer or by the officer appointed by the High Court, as the case may be. or it would be deemed to have been filed only after it has reached the Magistrate concerned

15. It came up before the Bombay High Court in Daga Devji Patil v Emperor, AIR 1928 Bom 64, where it was held that till the order is supplemented by an actual complaint, it is, for the purposes of Section 476-B. incomplete, so that limitation only begins to run from the time that the complaint is actually made. Though the point was not specifically decided in that case as to when the complaint may be said to have been made, the words used indicate that the opinion of the Court was that it would begin to run from the date the Magistrate receives the complaint, for it is only on that date that it may be deemed to have been actually made.

16. Jn Ramjan Ali v. Moolji Sika and Co. : AIR1929Cal521 , a Bench of the Calcutta High Court held that in case of a complaint under Section 476, limitation for an appeal must be held to run from the date of the complaint, for the words of the section make it clear that it is only on the refusal to make a complaint or on a complaint bein.e made that an appeal is possible.

17. The Judicial Commissioner, Nagpur, also had had occasion to consider this point in Bal Govind v. Jamuabai, AIR 1935 Nag 199, and purporting to follow the Lahore and the Bombay cases, referred to above, he held that without any complaint the finding under Section 476 itself is inoperative and the limitation for purposes of appeal can only run from the date on which the complaint is made, i. e. the date on which the finding becomes operative to the prejudice of the party concerned. In that case also it was not decided as to whether the date on which the complaint is actually signed is the date of the making of the complaint or the date when it is received by the Magistrate.

18. In Naraindas V. Gidwani v. Emperor, AIR 1943 Sind 157, it was presumed that the right to file an appeal arises only after a com plaint has been made. In connection with the time from which the period of limitation in such cases would run it was remarked that the making of the complaint by the Court within the meaning of the words in Section 476-B is something antecedent to its despatch to the Magistrate ana cannot therefore be taken later than its signature by the presiding officer of the Court. This is in consonance with the view of Desai. C. J. already referred to above.

19. The view of the Fravancore-Cochin High Court in Velayudhan Pillai v. Travancore-Cochin State, AIR 1955 Trav-Co. 226, also if the same as that taken in the Lahore, Bombay and Nagpur cases referred to above.

20. The Madras High Court In re T Subramania Achari, : AIR1955Mad129 , took the view that where an application under Section 476 of the Code of Criminal Procedure asking the Court to make a complaint is refused, time runs from the date of the order of refusal. Where, however, an order is made directing a complaint to be Bled, time is to be calculated not from the date of such order but from the date when the complaint has actually been made. The reason given is that Section 476-B, Criminal Procedure Code, gives a right of appeal to a person against whom a complaint has been made. That case also decides that the date of making the complaint should be construed as the date on which the complaint is actually presented to or received by the Court and which may be either in person as in the case of an ordinary-complaint or through post as in the case of a Court or a public officer.

21. Here we will observe that though there might not have been an actual provision under Section 476 (1), Code of Criminal Procedure, tor passing an order for the making of a complaint, the existence of such an order being made in the case where a complaint is actually filed was presumed.

22. Lastly, the matter was considered by the Bajasthan High Court in Bahadurmal v. The State. , where most of the cases above referred to were considered and it was held that the words 'complaint has been made' clearly denoted that it is the making of the complaint itself that entitles the concerned person to lodge an appeal. The words are not to the effect that 'complaint is to be made'; consequently the right to appeal accrues only when the complaint is made and it does not obviously arise at a stage anterior to that, i. e. when the Court concerned has merely ordered that a complaint be made. It will be the making of the complaint that will be the starting point of the period of limitation. Making of the corn-plaint was explained as presenting it where personal presentation is necessary before tha criminal Court concerned and where personal presentation is not necessary it should at any rate be available to the criminal Court for action and the complaint will be available for action to the criminal Court only when it has reached that Court and not before.

23. The view, therefore, that has held the field so far is that a right of appeal arises only on the making of the complaint and not on the mere finding of the Court that it is expedient in the interests of justice that a complaint be made though there is difference of opinion as to when a complaint may be said to have been made. While the view of our Court as expressed in the two cases, referred to above, is that a complaint is made as soon as it is signed by the presiding officer or such officer of the Court as the High Court may appoint, as the case may be, the other view seems to be that it is made only when it is received by the Magistrate in whose Court it is filed. There is however a discordant note also in this connection by two of the Judges of this Court that a complaint may be said to have been made as soon as the finding is given as to the expediency contemplated under Section 176 Cr. P. C.

24. We have now to examine as to which of the two views is correct. If the right to file an appeal is allowed to accrue to a partv against whom a complaint is filed from the making of the complaint, be it when the complaint is signed by the presiding officer making it or by an officer appointed by the High Court or on the complaint actually reaching the Magistrate, difficulty would arise as to how such a person against whom a complaint is made will know of the date. The presiding officer will sign the complaint not in open Court or in bis presence. There may be an occasion when he would sign A complaint in open Court if it is made simultaneously with the recording of the finding contemplated under Section 476 (1). But such instances would be rare. It is also difficult to know for a person against whom the complaint has been lodged as to when it has actually reached the Magistrate before whom it is filed, for be will know about the complaint only after he receives notice thereof. The question would then arise as to the time when the period of limitation would actually begin.

25. The right of appeal was given by the Legislature in such cases for the first time in the year 1923 by replacing the old Section 476 by the new Sections 476, 476-A and 476-B. The Indian Limitation Act 1908 was in force at that time and the only provision that would be applicable to such appeals would be Article 154 of the First Schedule or 155 if the appeal was to be filed in any Court other than a High Court or it was to be filed in a High Court, as the case may be. While in one case the period of limitation is thirty days from the date of sentence or order appealed from, in the other case it is a period of sixty days also from the date of sentence or order appealed from. If for the sake of argument we take the making of the complaint as the date of sentence or order, then as it would not be possible in most of the cases for a person against whom the complaint has been filed to know at once when the complaint is either signed by the presiding officer concerned or when it reaches the Court of the Magistrate, as the case may be, some of the period of limitation may have expired before he actually comes to know about it. In some cases the entire period may have expired before he actually comes, to know about the complaint being made against him. The Legislature could not possibly have given the right of appeal and at the same time to have made it very difficult for the appellant, if not impossible, to exercise that right. Such an intention cannot be attributed to the Legislature. When the Legislature gives the right of appeal and a period of limitation is prescribed for the appeal, the Legislature must be deemed to have intended that the wholeperiod of limitation would be at the disposal of the suitor in the matter of the filing of the appeal. The principle of interpreting a statute according to the plain words used in the statute, therefore, would, to a certain extent, negative or destroy the very right which the statute grants to a party inasmuch as the period during which that right may be exercised may expire before the party adversely affected is in a position to know that he has a right to file an ap peal.

26. The answer to this question is that Section 5 of the Limitation Act would be available to that party (vide the Bombay case referred to above). Section 5 vests discretion in the Court to allow an appeal to be filed beyond the period of limitation on sufficient cause being shown to the satisfaction of the Court for not preferring the appeal within time. In that case the party will not be entitled to file an appeal as of right, but would have to seek favour from the Court and pray that the discretion be exercised in his favour. The statute gives the party a right to file an appeal. This right cannot be made by the interpretation of the statute subject to the discretion of the Court howsoever judicial that discretion may be. This is one difficulty in interpreting Section 476-B by attributing plain meaning to the words used therein.

27. There is yet another difficulty in starting the period of limitation from the date of the making of the complaint, be it the signing of the complaint by the Judge, or the Magist rate or an officer appointed by the High Court, as the case may be, or the actual receiving of the complaint by the Magistrate the appeal is one contemplated under the provisions of the Code of Criminal Procedure. When Section 476 was introduced into the Code no corresponding amendment was made in the Indian Limitation Act. The only provisions in the Indian Limitation Act which could be made applicable to such appeals were Articles 154 and 155 of the first Schedule. Both these Articles provided periods of limitation for appeals under the Code of Criminal Procedure. Article 154 applied to appeals when filed before any Court other than a High Court while Article 155 applied to appeals that were to be filed under the Code before the High Court. With regard to both these types of appeals it has been provided that the period of limitation would start from the date of the sentence or order. The date when a complaint has been filed is the date of the filing of the complaint of any sentence or order. The law, therefore, contemplates that every appeal filed under the Code is directed against some sentence or order and that the limitation starts from the date of such sentence or order. There has, therefore, to be a sentence or order and the date of that sentence or order. The date of the filing of the complaint, be it the date of the signing of the complaint by the Judge or the date on which the complaint is received by the Magistrate cannot be the date of any sentence or order. There is no question of any sentence being passed in a case under Section 476. Putting harmonious construction to the provisions of Section 476 (1) and Articles 154 and 155 of the First Schedule to the Limitation Act, we can come to one and only one conclusion that the order contemplated under Articles 154 and 155 is the order which is implicit in the giving of the finding contemplated under Section 476 (1) though that order is the order passed at the time of the giving of the finding that a complaint be filed. The period of limitation, therefore, would start not from the date of the filing of the complaint but from the date of the order requiring the filing of the complaint. That would take us still backwards for the starting of period of limitation and if the right of appeal is held as arising only when the complaint is filed, that will make it all the more necessary for the provisions of Section 5 of the Indian Limitation Act to be resorted to in most of the cases and for the reasons already stated that makes the right of appeal not a real right but a right dependent on the discretion of the Court.

28. There is yet another difficulty, Section 419 of the Code of Criminal Procedure provides that every petition of appeal shall be accompanied by a copy of the judgment or order appealed against. what would be the judgment or order in this case? Would it be the finding recorded under Section 476 (1) or the complaint itself? The complaint certainly cannot be an order. A finding to the effect that it is expedient in the interests of justice that a complaint be made with respect to a certain offence also cannot be a judgment or an order.It is ft finding. It has been remarked in some of the cases that Section 476 does not contemplate the passing of any order. What then should be considered to be the judgment or order for the purpose of Section 419 in such circumstances? Desai, J. (as he then was) was of the opinion in Mohammad Illyas's case : AIR1954All225 (Supra) that it is the copy of the complaint that should be filed along with the petition of appeal for the purpose of Section 419 of the Code of Criminal Procedure which should be taken to be the order. He did feel difficulty in taking that view. He remarked that, strictly speaking, a complaint is not a judgment or order and an appeal under Section 476-B would not be required to be accompanied by a copy of the complaint. But the petition of appeal must be accompanied by some document. The complaint was treated as a 'sentence or order' within the meaning of Article 154 of the Limitation Act. Similarly, he held that it could be treated as an 'order' within the meaning of Section 419. This view he confirmed as Chief Justice in the Division Bench case of Ram-chandra Soti : AIR1963All352 , referred to above.

But with respect we find it difficult to agree with him. A complaint can never be an order. It is in fact a request to the Court before whom it is filed for taking certain action. On the other hand, a finding to the effect that in the interests of justice a complaint be filed in respect of a certain offence even though it may not be a judgment or an order, strictly speaking, is what has to be examined by the appellate Court as to whether it is correct or not and it is that finding a copy of which should accompany the petition of appeal and not the complaint.

29. Section 421 of the Code of Criminal Procedure contemplates summary dismissal of an appeal filed under Section 419, for it provides that the appellate Court shall peruse the petition of appeal and the copy submitted along with it and if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. A copy of the complaint will not serve the purpose. The only copy that may be useful at the stage when the appeal comes up for consideration under Section 421 will be the copy of the finding. We have already pointed out that in this finding the passing of an order is implicit and in fact it is not a finding but an order a copy of which should be filed when the appeal itself is filed under Section 419 of the Code of Criminal Procedure.

30. The provisions of Sections 419 and 421 of the Code of Criminal Procedure apply to appeals against the order of a Criminal Court only, as would appear from the provisions of Section 404 and the sections following it in the Code of Criminal Procedure. An appeal under Section 476B will not necessarily be an appeal from an order of a Criminal Court. It may as well be an appeal from the order of a Civil or Revenue Court. There are, however, provisions fimilar to Sections 419 and 421 of the Code of Criminal. Procedure in the procedure prescribed for appeals in Civil and Revenue Courts also. So far as the provisions of civil appeals are concerned, under Order 41, Rule 1, read with Order 43, Rule 2 of the Code of Civil Procedure an appeal against an order from a Civil Court has to be accompanied by a .copy of the order appealed against and under Order 41, Rule 11 it can be dismissed summarily also for Rule 11 of that Order will apply to appeals against an order also under the provisions of Rule 2 of Order 43. What has, therefore, been said in connection with the provisions of Sections 419 and 421 of the Code of Criminal Procedure that a copy of a complaint will not serve the purpose and the only copy that may be useful at the stage when the appeal comes up for consideration under Section 421 will be the copy of the finding, will apply with equal force if an appeal is filed under the provisions of Section 476B of the Code of Criminal Procedure against an order of a Civil Court. There are similar provisions with respect to the appeals in revenue cases also and it is not necessary to describe them in detail. Suffice it by saying that what has been said with respect to the provisions relating to appeals from orders of a Criminal Court and also to appeals from orders of a Civil Court will apply with equal force to appeals from orders of a Revenue Court.

31. An analysis of Section 476 of the Code of Criminal Procedure, as already pointed out, would show that it contemplates three stages in the making of a complaint: The first stage is when a finding has to be given by the Court concerned to the effect that it is expedient in the interests of justice to file a complaint, the second is the making of the complaint in writing signed by the presiding officer or by the officer appointed by the High Court and the third stage is that of forwarding the same to a Magistrate of the first class. The making of a complaint by signing it is the natural result of the giving of a finding and must automatically follow the giving of the finding as to the expediency, if one is given, and in a way can be said to be part and parcel of one and the same process. The sending of the complaint to the Magistrate may be another process and, as pointed out in some cases, it is no more than a ministerial process. It would not, in the circumstances, be doing violence to the provisions of the statute by deeming the complaint to have been filed as soon as a finding is given as to the expediency in the interests of justice that a complaint be filed, for a complaint has to be filed as a result of that finding and if we take that view and introduce this legal fiction that a complaint must be deemed to have been filed as soon as it is ordered to be filed, then the right of appeal would begin as soon as the application under Section 476 has been disposed of by the giving of a finding contemplated therein. Such an order would be passed in open Court in the presence of the parties and no party's right would be prejudiced by the allowing of any period of limitation to expire before that party actually gets information of the making of the complaint.

It, therefore, appears that it will be more in consonance with the principles of justice and in conformity with the intention of the Legislature if it is held that 'complaint has been made' as soon as a finding has been recorded under Section 476 (1) of the Code of Criminal Procedure with respect to the expediency for filing it and an order that a complaint be made which is implicit in the recording of that finding, has been made. This will nave an additional advantage to the person aggrieved to seek his remeay in the appellate Court at the earliest opportunity instead of his waiting till he received information that a complaint has actually been filed and allowing the sword, of Damocles to hang on his head for such a long time.

32. The learned counsel tor the respondent relied on a number of authorities to show that the plain meaning of the statute should not be departed from and that legal fiction of the type contemplated above should not be introduced to interpret the statute. The authorities that he has referred to are:

New Piece-goods Bazar Co., Ltd., Bombay v. Commissioner of Income-tax, Bombay AIR 1950 SC 165; Sm. Hira Devi v. District Board, Shahjahanpur : [1952]1SCR1122 , Nalinakhya Bysack v. Shyam Sunder Haldar : [1953]4SCR533 ; Sri Ram Ram Narain Medhi v. State of Bombay : AIR1959SC459 ; and British India General Insurance Co., Ltd v Capt. Itbar Singh. AIR 1959 SC 133J

33. In the New Piece-goods Bazar Com panys case AIR 1950 SC 165, it is pointed out that it is elementary that the primary duty of a Court is to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention.

34. In Sm. Hira Devi's case : [1952]1SCR1122 , it was pointed out that though it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature, it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.

35. In Nalinakhya Bysacks case : [1953]4SCR533 , it was laid down that it is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some detect in the phraseology used by the Legislature, the Court cannot aid the Legislature's defective phrasing of an Act or aid and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is for others than the Courts to remedy the defect.

36. In Sri Ram Ram Narain Medhi's case : AIR1959SC459 , it has been laid unambiguous it would not be legitimate for the Courts to add any words thereto and evolve therefrom some sense which may be said to carry out the supposed intentions of the Legislature. The intention of the Legislature is to be gathered only from the words used by It and no such liberties can be taken by the Courts for effectuating a supposed intention of the Legislature.

37. In British India General Insurance Company's case : [1960]1SCR168 , it waspointed out that no word can be added tu a statute unless the statute, as it stands, is meaningless or of doubtful meaning.

38. Reliance was also placed on an English authority in Magor and St. Mellons Rural District Council v. Newport Borough Council, 1951 (2) All ER 839 at p. 841, where Lord Simonds strongly criticised the following observations of Denning L. J. in 1950 (2) AH ER 1236:

'We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.'

It was pointed out that it is the duty of the Court to find out the intention of Parliament--and tiot only of Parliament but of Ministers also cannot by any means be supported. The duty of the Court is to interpret the words that the Legislature has used. Those words may be ambiguous, but, even it they are, the powers and duty of the Court to travel outside them on a voyage of discovery are strictly limited.

39. There is no dispute regarding the pro-positions of law on which the learned counsel has relied. The intention of the Legislature has to be gathered from the plain meaning of the words used in the statute. But there may be occasions when the rule of plain interpretation does not obviously bring out the intention of the Legislature. The duty of the Court in such cases is not to fill in the gaps but to give expression to the intention of the Legislature by putting such interpretation as may remove the ambiguity. Even the Supreme Court in Mamnohan Das Shah v. Bishun Das : [1967]1SCR836 , has laid down that the ordinary rule of construction is that provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons such as, where a literal construction would reduce the provision to absurdity or prevent the manifest intention of the Legislature from being carried out.

40. It will also be useful to quote from Crawford's 'The Construction of Statutes', Article 161, at p. 249. It reads:

'Consequently, when construing a statute, the reason for its enactment should be kept in mind, and the statute should be construed with reference to its intended scope and purpose. The Court should seek to carry out this purpose rather than to defeat it. Of course, if the language is unambiguous and the statute's meaning is clear, the statute must be accorded the expressed meaning without deviation, since any departure would constitute an invasion of the province of the Legislature by the Judiciary. And even where the statute is ambiguous, considerable caution should be exercised by the Court lest its opinion be substituted for the intent of the Legislature.'

41. The ordinary rule thus is to interpret a statute according to the plain meaning of the words used therein but sometimes the plain meaning attributed to the words may destroy the very purpose for which the statute has been framed. In this case, as pointed out above, the right of appeal against the making of the complaint contemplated under Section 476 of the Code of Criminal Procedure has been given lor the first time by the Legislature in the year 1923 by introducing Section 476B in the Code of Criminal Procedure. The Legislature must be deemed to have meant to give a real right of appeal and not an illusory right. It the statute is interpreted according to the plain meaning of the words, then the right in most cases will be reduced to a right exer-cisable at the discretion of the Court on an application under Section 5 of the Indian Limitation Act. It will in most cases be not exercised in full inasmuch as some period of limitation, even if the limitation is to be counted from the date of the making of the complaint, will always have elapsed before the suitor becomes aware of the making of the complaint against him.

In the circumstances when the ordinary rule of giving plain meaning to the words given in the statute is obviously destructive of the apparent intent of the Legislature, it has to be departed from and the intent of the Legislature has to be searched for from the context of the statute under interpretation. There are two pitfalls in departing from the rule of plain interpretation: the Court may enter into the domain of legislation or, what is sometimes called, be guilty of judicial legislation; or it may interpret to give effect to its own idea as to what the law ought to be rather than find what the law actually is. These pitfalls can be avoided if attention is concentrated in finding out the true intention of the Legislature. If tha very giving of a finding under Section 476(1) is treated as amounting to the 'making of the complaint' and the passing of an order at the time of the giving of the finding is taken to be implicit in the provisions of Section 476, as we think it is, the Court would neither be legislating nor interpreting the law as it should be rather than as it is, but it would be putting into force the intention of the Legislature.

42. We are, therefore, of the opinion that the law laid down in : AIR1954All225 (supra) and : AIR1963All352 (supra) that the right of appeal arises only when the complaint hasbeen filed by its being signed by the presiding officer or such officer of the Court in the case of a High Court as the latter may appoint with respect, is not correct. The right of appeal arises as soon us the finding is recorded under Section 476 (1) that it is expedient in the interests of justice that a complaint be filed and an order is made for the filing of a complaint. The giving of the finding and the passing of such an order must be treated to be the making of a complaint. By this interpretation the provisions of Section 476B and Section 419 of the Code of Criminal Procedure and similar provisions with respect to appeals from order in Civil and Revenue rases and Articles 151 and 155 of the First Schedule to the Limitation Act, 1908, which was in toroe when Section 476B was introduced into the Code of Criminal Procedure can be brought into harmony with each other.

43. Learned counsel for the respondent pointed out that the difficulty of the period of limitation expiring and taking resort to the provisions of Section 5 of the Limitation Act in case of an appeal under Section 476-B if the period of limitation is held to start from the time of the filing of the complaint can be obviated by making the period of limitation start from the date of the information as to the filing of the complaint. For this he places reliance on the case of Raja Harish Chandra v. Deputy Land Acquisition Officer : [1962]1SCR676 , wherein it has been laid down that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order, by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. In that case the expression 'the date of the award' used in proviso (b) to Section 18(2) of the Land Acquisition Act, 1894, was held to mean the date when the award is either communicated to the party or is known by him either actually or constructively. No doubt, if the period of limitation in the case is to be counted from the date of the making of the complaint, then on the strength of this authority which approves some authorities of the Madras High Court the date of the filing of the complaint can be deemed to be the date of the knowledge of the filing of the complaint to the appellant but that alone will not solve the difficulties that arise in thig case. The date of tha filing of the complaint cannot be the date of the order appealed against within the meaning of that term in Articles 154 and 155 of the Indian Limitation Act. If the complaint is deemed to be an order, then the mere filing of the complaint along with the memorandum of appeal under the relevant provisions relating to appeals from an order of a Criminal or a Civil Court or a Revenue Court also will make it difficult for the Court to exercise its powers of summary dismissal If it wants to examine whether the appeal should be dismissed summarily. In order, therefore, to give harmonious construction to the various provisions of Sections 476 and 476B the Code of Criminal Procedure and Articles 154 and 155 of the First Schedule of the statute of limitation relevant for the purpose and the provisions relating to the filing of the appeals and their summary dismissal in criminal, civil and revenue matter, the only interpretation possible to the term 'complaint has been made' is that the complaint must be deemed to have been made when the same has been ordered to be made for the passing of an order for the making of the complaint is as good as the making of the complaint as after the passing of the order what remains to be done is only a formal act of the Court in preparing the complaint and sending it to the Court concerned. This is the view of Raghubar Dayal, J., in Sundar Lal's case (supra) and we respect-fully agree with that view.

44. We are, therefore, of the opinion that the appeal is not premature.

45. Let this answer be sent to the Bench concerned.


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