1. A number of illegal and improper orders have been passed as a result of the proceedings arising out of a petition filed by the respondent requesting the Sub-Magistrate, Trichinopoly, to make a complaint under Section 211, Indian Penal Code.
2. The Sub-Magistrate considered the petition and preferred a complaint to the Sub-Divisional Magistrate, Trichinopoly. The Sub-Divisional Magistrate, Trichinopoly, instead of taking the . case on file, as he was bound to do under Section 476 (2) of the Code of Criminal Procedure, said that he was not satisfied with the proceedings of the Sub-Magistrate and ordered him to make some further inquiries. About the same time, the respondent took the matter in appeal under Section 476-B, Criminal Procedure Code, to the District Magistrate. Instead of disposing of the matter himself, as he should have done, the District Magistrate sent it to the Sub-Divisional Magistrate, the very officer to whom the complaint had been made. The Sub-Divisional Magistrate then committed a further illegality by forwarding the appeal to the Sub-Magistrate in continuation of his previous order. Finally, the petitioner approached the District Magistrate in revision against the order of the Sub-Divisional Magistrate contending very rightly that the Sub-Divisional Magistrate had no jurisdiction to pass the order he did. The District Magistrate had no power to interfere in revision; but he rejected it under the misapprehension that Janardhana Rao v. Lakshmi Narasamma : AIR1934Mad52 . was an authority for the position that the Sub-Divisional Magistrate to whom the complaint was given did have the power that he purported to exercise.
3. Section 476, Criminal Procedure Code, which empowers the Court to make a complaint to the nearest First Class Magistrate having jurisdiction, lays down the procedure to be adopted and says that after such preliminary inquiry, if any, as it thinks necessary, it shall record a finding and may make a complaint. Under Section 476 (1) it is the Court which considers the question whether it shall lay a complaint or not that has to be satisfied whether it is expedient in the interests of justice that an inquiry should be made; and it gives to that Magistrate complete discretion whether to conduct the preliminary inquiry or not. When once the complaint is sent to the Magistrate having jurisdiction, he must proceed under Section 476 (2), which says that such Magistrate shall thereupon proceed according to law as if upon complaint made under Section 200. That it is for the Magistrate making the complaint to consider whether it is in the interests of justice to make a complaint and not the Magistrate to whom the complaint is made, is clear from the section itself, and this has been laid down in Raja Rao v. King-Emperor : (1926)51MLJ331 . The person against whom a complaint is made is not without a remedy; but that remedy does not lie in the Court of the Magistrate to whom the complaint is made, but in the Court to which appeals ordinarily lie from the Court which lays the complaint. The appellate Court has then to consider the same questions as the complaining Court; and it may thereupon exercise its discretion and direct the withdrawal of the complaint or itself may make a complaint. If it thinks that further enquiry is necessary, it may order it. The ordinary appellate Court would be, in this case, that of the District Magistrate. Although the District Magistrate has power in certain cases to delegate his appellate powers to Sub-Divisional Magistrates, he had no such authority in this case. Section 407, which deals with the delegation of appellate powers, says in the first sub-section 'any person convicted on a trial held by any Magistrate of the Second or Third Class...may appeal to the District Magistrate.' Sub-section (2) says that appeals under Sub-section (1) may be delegated by him to any Magistrate of the First Class Subordinate to him and empowered by the Local Government to hear such appeals. The appeal in this case was one under Section 476-B, Criminal Procedure Code and not under Section 407 (1), so that the District Magistrate in this case had no power to send the appeal to the Sub-Divisional Magistrate for disposal.
4. When the petitioner went in revision to the District Magistrate, the District Magistrate dismissed the revision application saying that the Full Bench decision in Janardhana Rao v. Lakshiminarasamma, : AIR1934Mad52 . was an authority which negatived the contention of the petitioner that under Section 476 (2) the Magistrate to whom the complaint was made had no power to consider whether the complaint was properly made. This case merely deals with the powers of the appellate Court and not of the Court to which the complaint is made.
5. The petition is allowed. The order of the District Magistrate sending the appeal of the respondent to the Sub-Divisional Magistrate, the first order of the Sub-Divisional Magistrate directing the Sub-Magistrate to make further inquiry into the matter, and the second order of the Sub-Divisional Magistrate directing the Sub-Magistrate to dispose of the appeal in accordance with his previous orders, are all set aside. The District Magistrate will proceed to dispose of the appeal preferred by the respondent. The Sub-Divisional Magistrate will exercise only such powers as are given to him under Section 476, Criminal Procedure Code.