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Shamji Khima Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1966CriLJ964; (1965)GLR953
AppellantShamji Khima
RespondentThe State of Gujarat
Cases ReferredSurendra Nath v. Susil Kumar
Excerpt:
.....or revenue or criminal court, it is true that an appeal is provided from the order of refusal by any civil, revenue or criminal court, but the jurisdiction exercised under section 476 would be criminal in nature and such an appeal could be dealt with like any other criminal appeal. without such consequential power being implied, the appellate power could not be effectively exercised. 7. in the result, both these petitions must fail and i reject the same rule accordingly discharged in each case......shamji khima against the order of the learned sessions judge, amreli, who had allowed the appeal filed by the complainant against the order of the learned judicial magistrate, first class, amreli, granting b summary with prosecution and as a result of which two complaints were filed against the complainant. the learned sessions judge had remanded the matter to the trial magistrate with a direction that he should hold a regular preliminary inquiry and record a finding whether it was expedient in the interest if justice to file a complaint.2. the short facts which have given rise to these revision applications are as under:the police authorities had filed two police reports no. 15 of 1963 and no. 16 of 1963. the report no. 15/63 related to the complaint of petitioner shamji khima.....
Judgment:
ORDER

J.B. Mehta, J.

1. These two revision petitions arise, from a common judgment and are being disposed off by this common order. They are filed by the original complainant Shamji Khima against the order of the learned Sessions Judge, Amreli, who had allowed the appeal filed by the complainant against the order of the learned Judicial Magistrate, First Class, Amreli, granting B Summary with prosecution and as a result of which two complaints were filed against the complainant. The learned Sessions Judge had remanded the matter to the trial Magistrate with a direction that he should hold a regular preliminary inquiry and record a finding whether it was expedient in the interest if justice to file a complaint.

2. The short facts which have given rise to these revision applications are as under:

The police authorities had filed two police reports No. 15 of 1963 and No. 16 of 1963. The Report No. 15/63 related to the complaint of petitioner Shamji Khima against three accused persons Kathi Meram Unad, Kathi Jagu Bhim and Kunbi Ravji Pata who were alleged to have committed trespass and robbery by going into the verandah of the house of the complainant and by robbing his son Bhailal of his gold buttons and an amount of Rs. 14/- on the night of 20th December 1962 and thereby the accused had committed offences under Sections 451, 392 read with Section 34 of the I.P. Code. The other police report No. 16/63, however, related to the complaint dated 2.3.63 of the complainant against the three accused Kalyan Manji, Ravji Pata and Gokal Pata alleging that they had committed a theft of 25 cartloads of manure belonging to the complainant and lying in his laud of plot No. 33 by removing the same to some other land of the accused persons. These two separate reports had been submitted by the police authorities under Section 173 before the learned Magistrate who had granted 'B Summary with prosecution' on both these reports. Evidently that order for prosecution of the complainant was passed under Section 476B of the Code of Criminal Procedure. The complainant, therefore, in both the cases, filed an appeal under Section 476B of the Code before the learned Sessions Judge, Amreli. The learned Sessions Judge was of the view that as no preliminary inquiry was held by the learned Magistrate for forming an opinion whether it was expedient in the interest of justice to prosecute the complainant, he had allowed the two appeals and had remanded both the matters for holding a preliminary inquiry as aforesaid and had stayed the two complaints filed by the complainant. The petitioner has, therefore, filed these two revision petitions against the said order.

3. Mr. Chhanesara argued-that Section 476B of the Code was a self-contained provision and the appellate Court, while exercising powers under Section 476B of the Code, had no jurisdiction to order a remand of the case to the learned Magistrate or to stay the complaints. According to Mr. Chhanesara the Sessions Judge was bound to record additional evidence himself and to come to his own decision. On this question it appears there is a good deal of conflict of opinion amongst the various High Courts, The High Court of Lahore in Dhanpat Rai v. Balak Ram AIR 1931 Lah 761, the Chief Court of Oudh in Mendi Lal v. Ram Adhin AIR 1935 Oudh 59, the High Court of Mysore in M. Subba Rao v. K. Anantha AIR 1959 Mysore 153, and the Full Bench of the Allahabad High Court in Manni Lal v. Emperor : AIR1937All305 , seem to have taken the view that there was no such bar under Section 476B to order the remand. As. against this the Full Bench of the Madras High Court in Janardhan Rao v. Lakshmi Narasamma AIR 1984 Mad 52 (FB), and the Full Bench of the Patna High Court in Dhup Narain Singh v. State AIR 1954 Pat 76 (FB) and the Division Bench of the Calcutta High Court in Surendra Nath v. Susil Kumar : AIR1931Cal604 , appear to have taken the view that Section 476B is riot a sell contained provision and it being of a supplementary nature, the appellate Court Had all the powers including the power of remand under Section 423(c) and (d) of the Code and also the power of summary disposal of the appeal.

The former view has been succinctly expressed in the Full Bench decision of the Allahabad High Court in : AIR1937All305 . That view mainly proceeded on a consideration of the following factors: (1) that there would be no inherent jurisdiction as to invoke any such inherent power which would make the provisions of the Code quite unnecessary. The inherent jurisdiction was generally confined to proceedings before the appellate Court and did not include the authority to issue orders to the Court below directing it to do something in the case. (2) Section 476B was considered to be a self-contained provision. The analogy was drawn from Section 486 which provided that a person sentenced by any Court under Section 480 or Section 485 might notwithstanding anything contained, appeal to the Court to which decrees or orders made in such Court were ordinarily appealable, Clause (2) of Section 486 specifically provided that the provisions of Chap. XXXI shall, so far as they are applicable, apply to appeals and the appellate Court may alter or reverse the finding, or reduce or reverse the sentence appealed against. Even though Section 478B also provided an appeal from the orders pissed under Section 476, there was no similar provision which made Chap XXXI applicable to such an appeal as in the case of Section 486 (2) which was in the same Chap. XXXV. Absence of this provision was considered as definitely indicating the intention of the Legislature to make Section 476B a self-contained provision and, therefore, to appeals under that Section the provisions of Chap. XXXI were held not to be applicable. (3) It was also considered that Section 423(c) or (d) which provides for the power of the appellate Court to alter or reverse an order or to make any consequential order that might be just or proper would not include the power to mike a remand. (4) The wording of Section 476B which confer a specific power on the appellate Court to direct withdrawal of the complaint or as the case may be, itself make the complaint which the subordinate Court might have made under Section 476, indicated the limited nature of power conferred on the appellate Court. (5) Section 476B also contemplated an appeal from the order of not only criminal Court but also of a civil or revenue Court and, therefore, such an appeal could not be considered to be a criminal appeal which could be dealt with under Chip. XXXI. As against this view, the other view has been represented by the Full Bench of the Madras High Court in AIR 1934 Mad 52 (FB), wherein all these difficulties have been tried to be resolved and Section 476B is not held to be a self-contained provision. It approves the decision of the Division Bench of the Calcutta High Court in : AIR1931Cal604 . The Full Bench of the Patna High Court in All 1954 Pat 76 (FB), also held that an appeal under Section 478B even from an order passed under Section 478B by a Civil Court must be deemed to be a criminal appeal to which provisions of the Code of Criminal Procedure were applicable in so far as they were applicable to appeals under the said Code. I am in respectful agreement with this view of the Madras, 'Calcutta and Patna High Courts. A single Judge of Andhra Pradesh High Court in In Re K. Narahari Pillai : AIR1959AP51 , also took the same view.

4. Section 476(1) provides that when any Civil, Revenue or Criminal Court is, whether on application 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 that Court. Section 476B provides for an appeal against the said order. It indicates that any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under Section 476 or Section 47 6A, 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 478, and if it makes such complaint the provisions of that Section shall apply accordingly. The intention of the Legislature is clearly to provide an appellate forum in Section 476B when the application to make a complaint under Section 476 has been refused by any Civil or Revenue or Criminal Court, It is true that an appeal is provided from the order of refusal by any Civil, Revenue or Criminal Court, but the jurisdiction exercised under Section 476 would be criminal in nature and such an appeal could be dealt with like any other criminal appeal. In fact Section 404 in Chap. XXXI itself indicates the wide amplitude of the criminal appeals as it provides that no appeal shall lie from any judgment or order of a criminal Court, except as provided by this Court or by any other law for this time being in force. Merely because Section 428, dealing with the power of the appellate Court to take additional evidence, specifically refers to appeals under Chap. XXXI, it would not be proper to hold that all the sections in the said Chapter are applicable only to appeals under that Chapter and not to all the appeals under the Code or to other criminal appeals. Unless, there is a specific restriction as in Section 428 which restricts that provision in its application to appeals under that Chapter, there would be no justification to restrict the wide amplitude of Section 423 to only appeals under Chap. XXXI and to make it inapplicable to other criminal appeals. Even the provision for summary dismissal as in Section 421 was held to be applicable even by Allahabad High Court in the aforesaid decision as an implied power of the appellate Court. On the same reasoning such a power of remand could always be implied in the appellate Court when it reverses the order and decides to send the matter back to the trial Court for being disposed of in accordance with law. Without such consequential power being implied, the appellate power could not be effectively exercised. The doctrine of implication of powers could be rightly relied upon for this purpose. Even if additional evidence could not be taken under Section 428, as pointed out by the Allahabad High Court, the same could be done under Section 540. There would also be no difficulty because of the fact that Section 478B provides an appellate forum even from the decisions of Civil or Revenue Court because those Courts would also be disposing of the applications under Section 476 by exercising criminal jurisdiction and there would be no inherent difficulty in treating the appeal even from those orders as a criminal appeal to which all the provisions of Chap. XXX would be applicable in so far as there was no restriction to the contrary as in the case of Section 428. finally, from the nature of the orders indicated in Section 476B it would be wrong to limit the wide powers of the appellate Court while entertaining such a criminal appeal I, therefore, cannot accept Mr. Chhanesara's contention that the appellate Court had no power of remanding the matter to the trial Court for holding a preliminary inquiry.

5. Mr. Chhanesara also argued that in that event, there would be two complaints, one which, was already filed and the other which would have to be filed after the preliminary inquiry was completed by the trial Court. There is no substance even in that contention, because the complaint which is at present filed U obviously premature until the procedure requisite under Section 476 was gone through by the trial Court over which really constitutes a condition precedent for the validity of the complaint. Unless, there-fore, the trial Court held a preliminary inquiry and 'formed its opinion that it was expedient in the interests of justice to launch such a prosecution, no such complaint could be legally filed. It is true that the learned Sessions Judge has directed stay of the complaint which was wholly unnecessary in view of the fact that the complaint was entirely premature in both the cases.

6. In the result, I entirely agree with the order of the learned Sessions Judge that both these matters should be remanded to the trial Court for holding preliminary inquiry for recording evidence to form an opinion whether it was expedient in the interests of justice to launch the proposed prosecution.

7. In the result, both these petitions must fail and I reject the same Rule accordingly discharged in each case.


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