1. This is an application to revise the order of the District Judge of South Arcot declining to interfere with an order under Section 476, Criminal Procedure Code, passed by the District Munsif of Vridhachalam. Mr. Jayarama Aiyar's contention is that the learned District Judge had no jurisdiction to take additional evidence in a matter coming up under Section 476(b). The District Judge allowed an affidavit of the respondent's vakil to be filed before him and has relied mainly upon the affidavit in his judgment. It was held by a Bench of this Court in Krishna Reddi v. Emperor I.L.R. (1909) M. 90 : 20 M.L.J. 102 that a superior Criminal Court acting under Section 195 of the Criminal Procedure Code against the order by an inferior Criminal Court granting sanction had no power to take or call for further evidence. Section 195 has been amended and Section 476 empowers a Court, Civil, Revenue or Criminal, to forward a complaint to a Magistrate of the first class for inquiry into an offence which, it has reason to hold, has been committed before it. Under Section 476(b) an Appellate Court has power to withdraw the complaint or to direct a complaint to be filed when the lower Court declines to prefer a complaint. The decision in Krishna Reddi v. Emperor I.L.R. (1909) M.102 applies to a case coming under Section 476(b), for the section of the Criminal Procedure Code, which empowers the Appellate Court to take evidence, that is, Section 428, has no application to proceedings under Section 476(b).
2. The learned District Judge says that the affidavit was not objected to as if that was a ground for his relying upon it. Whether the petitioners' vakil objected to the reception of the affidavit or not, it is immaterial if the Court had no jurisdiction to receive the affidavit as evidence in an appeal against an order of the District Munsif under Section 476.
3. It is strongly urged by Mr. Patanjali Sastri for the respondents that this is a matter more than three years old and that I should not interfere in revision with the order of the District Judge, even though he acted without jurisdiction. The fact that the offence was committed more than three years ago is a matter for consideration by the District Judge. It is sufficient to remark here that the order of the District Munsif is very unsatisfactory. He says in paragraph 6:
I think that the production of this document is due only to carelessness and not to any deliberate fraudulent intention.
4. It is difficult to see how it could be said when a party to a suit presented a document and relied upon it that he did so owing to gross carelessness. It was open to the District Munsif to have refused to take action under Section 476 for other reasons than the reasons he has given. Seeing that the District Judge has acted without jurisdiction in receiving an affidavit in evidence and relying upon it, I set aside his order and direct him to restore the petition to file and dispose of it according to law. Petitioner is entitled to costs in this Court.