1. This is a reference by the learned District Judge of Moradabad in a matter arising out of an appeal purporting to be under Section 476-B, Criminal P.C. The learned District Judge has not stated under what rule of law he has made the reference, but we presume that his reference is under Section 113 and Order 46, Civil P.C. If that is so, the reference is quite competent.
2. The facts are briefly these: A certain person who was the appellant before the learned District Judge, viz., Ram Prasad, was ordered to be prosecuted for perjury by the learned Subordinate Judge of Moradabad. When the appeal came up for hearing, the objection was taken that no appeal lay. A ruling of a single Judge of the Lahore High Court, viz., Satto v. Emperor A.I.R. 1929 Lah. 9, was quoted before the Judge. The learned Judge was not satisfied that the ruling was a correct one. He did not like to take upon himself the responsibility of differing from a decision of a High Court, although the High Court was not the Allahabad High Court. He accordingly made the reference.
3. The question is whether where a Court takes action under Section 476, not being moved by any party, an appeal under Section 476-B, Criminal P.C., lies.
4. The matter is really a reading of the section itself. As we read it, the section would run like this:
Any person on whose application any civil... Court has refused to make a complaint under Section 476 or Section 476-A or (any person) against whom... a complaint (under Section 476 or 476-A) has been made
5. In our opinion to the word 'such' before the word ''complaint' in the third line of the authorized edition of the Code refers to a complaint 'under Section 476 or 476-A.' The word 'such' has no reference to the case of a complaint being filed at the instance of a party.
6. We have considered the case cited before the learned District Judge and with all respect, we are unable to agree with that decision.
7. We direct that the learned District Judge do proceed to decide the appeal as properly cognizable by him. We make no order as to costs.