1. The question that has been referred to us is:
In an appeal under Section 476B of the Criminal Procedure Code in a civil proceeding has the appellate Court power to remand the matter back to the Lower Court for disposal
2. In the course of the argument reference has been made to Rama Aiyar v. Venkatachella Padayachi I.L.R. (1906) Mad. 311 : 17 M.L.J. 123. In that case it was held that a Court exercising what is therein called its appellate jurisdiction under Section 195, Criminal Procedure Code, that is under the now abolished Clause (6) of that section, had no power to remand a case for fresh enquiry. I do not, however, think that that decision can be quoted as an authority directly bearing on the point now under reference. Though Section 195(6) gave to the superior Court powers that were of an appellate character, the clause said nothing as to the powers which it gave of granting or revoking a sanction to prosecute being given to a Court as a Court of Appeal. On the other hand the new Section 476B specifically refers to the powers which may be exercised on appeal by a superior Court in a case where an inferior Court has refused to make a complaint or has directed that a complaint should be made. This has made the position very different, as what was of the nature of an appeal has become definitely an appeal. It has to be considered, then, whether a Civil Court when sitting as an appellate Court under Section 476B has the power of remand which this Court found that it did not possess under Section 195(6).
3. What has first to be considered is whether an order passed by a Civil Court under Section 476B, Criminal Procedure Code, is of a civil character so that the provisions of the Civil Procedure Code can be applied to it. In this Court it is the practice to treat revision petitions against an order passed under Section 476B as being made under Section 115, Civil Procedure Code. If this practice be correct, then, in the view of Duval, J. in Hamid Ali v. Madhu Sudan Das Sarkar I.L.R. (1926) Cal. 355, an appeal under Section 476B, Criminal Procedure Code, is a Civil Miscellaneous Appeal to which Order 41 of the Civil Procedure Code applies. And if Order 41 applies then the Civil Court that takes action under Section 476B will no doubt have power to remand. There has, however, been a variance of opinion as to whether a Civil Court that takes action under Section 476B, Criminal Procedure Code, can be considered to be acting under the provisions of the Civil Procedure Code. In the matter of the Petition of Bhup Kunwar I.L.R. (1903) All. 249 a majority of two Judges, dealing with Section 476, Criminal Procedure Code, as it stood before Section 476B was added, held that they could revise such an order under Section 622 (now Section 115), Civil Procedure Code, but the third Judge held that such power of revision was exercised under Section 439, Criminal Procedure Code. After the introduction of Section 476B it has been held in Abdul Haq v. Sheo Ram I.L.R. (1927) All. 536 by a single Judge that an appellate order in such a case was revisable by the High Court only on its Civil Side. The same view has been expressed by the Calcutta High Court in Emperor v. Har Prasad Das I.L.R. (1913) Cal. 477 , which is a decision by five Judges. In this it has been tersely put that it is plain that an order under Section 476 may be revised by the High Court under Section 115 of the Civil Procedure Code. The same view has been expressed by the Patna High Court in Jagannath v. Rajagopalachari : AIR1931Pat411 .
4. As to the nature of an appeal under Section 476B, Criminal Procedure Code, it has been held in Nasaruddin Khan v. Emperor I.L.R. (1926) Cal. 827 that the procedure relating to it is governed by the Civil and not by the Criminal Procedure Code and it was held that it followed from the fact of the appeal, though itself one which is allowed by the Criminal Procedure Code, being one which must be heard by a civil appellate Court, that the procedure governing it was one which has to be sought within the four corners of the Civil Procedure Code. The same view has also been taken in Surendranath Maiti v. Sushilkumar Chakrabarti I.L.R. (1931) Cal. 68. But in Hamid Ali v. Madhu Sudan Das Sarkar I.L.R. (1926) Cal. 355, to which reference has already been made, Chotzner, J. was of opinion that it was plain from the wording of Section 476B that where a complaint has been made under Section 476 the person affected by the complaint may take an appeal to the Court to which the Court making the complaint is subordinate, and that that appeal must be dealt with as an ordinary appeal under the Criminal Procedure Code. And a Full Bench of the Lahore High Court has held in Dhanpat Rai v. Balak Ram (1931) that the High Court deals with all cases of revision of an order passed under Section 476B, whether the Court passing the order was a Civil, Criminal or Revenue Court, under Section 439, Criminal Procedure Code, from which it would seem to follow almost logically that the procedure on appeal under Section 476B must be procedure on appeal under the Criminal Procedure Code.
5. As to the applicability of Section 115, Civil Procedure Code, as that section empowers a High Court to revise the proceedings of any Court subordinate to it, it is hard to see how it cannot apply to the proceedings of a Civil Court even when they are taken under Section 476B of the Criminal Procedure Code. I can see nothing in the language of the section to suggest any such restriction. Even, however, taking it that that section applies in cases of revision, I cannot see how it follows therefrom that the procedure of a Civil Court in hearing an appeal under Section 476B must be taken to be that allowed by the Code of Civil Procedure. As pointed out in Nasaruddin Khan v. Emperors I.L.R. (1926) Cal. 827 the Civil Court gets its power to hear such an appeal from the Criminal Procedure Code and when it gets the power from that Code I should take it that it must also exercise it according to the provisions of that Code and that it does not follow merely from the fact of its being a Civil Court that, being once seised of the appeal, it can proceed to apply the provisions of the Civil Procedure Code from which its right to hear the appeal has not been derived. This is the view that was taken in Rama Aiyar v. Venkatachella Padayachi I.L.R. (1906) Mad. 311 : 17 M.L.J. 123 with reference to Section 195, Criminal Procedure Code. The opinion was therein expressed that even if proceedings under Section 195, Criminal Procedure Code, before Judges of Civil Courts might be revisable under Section 622 (now Section 115), Civil Procedure Code, it did not follow that such proceedings, which are of a criminal rather than of a civil nature, can be held to come under Section 647 (now Section 141), Civil Procedure Code. That reasoning I would respectfully adopt. Though the law has been altered and we now have Section 476B where formerly we had Section 195(6) the position still is, with reference, to proceedings under Section 476B, that they are of a criminal rather than of a civil character.
6. When I take this view it is unnecessary for me to discuss whether the proceedings of a Civil Court under Section 476B could be revised by a High Court under Section 439, Criminal Procedure Code. If they could be revised under that section then it would appear necessarily to follow that the Civil Court, when exercising its powers under Section 476B is acting as provided for by the Criminal Procedure Code, as, in any view, it does even if the High Court exercises its revisional authority under Section 115, Civil Procedure Code.
7. What then is the power of any Court, Civil or Criminal, in dealing with an appeal under Section 476B? Does that section stand complete by itself, except in so far as it is connected with Sections 476 and 476A, or is it to be read along with the provisions of Chapter XXXI of the Criminal Procedure Code relating to appeals? Section 428 in Chapter XXXI certainly cannot be read with Section 476B, as it is made applicable only to appeals under that Chapter. That is the section as to taking additional evidence. It is also pointed out that Section 486, which allows an appeal against a conviction under Section 485 for contempt of Court, expressly provides that the provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under that section, and it is argued that, when there is no similar provision with reference to Section 476B, it must follow that that section must stand by itself and cannot be read with Chapter XXXI. But here comes in the difficulty that a Court in disposing of an appeal under Section 476B must at times exercise a power which is not given to it by that section. That is the power of dismissal. That section does not give the Court the power to dismiss an application and so it would appear that its power to do so must be derived from Section 423. And so, I take it, it must be held that the provisions of Chapter XXXI can be applied to the hearing of an appeal under Section 476B. The calling for further evidence is not permissible under Section 428, as has already been held by a single Judge of this Court in Sami Vannia Nainar v. Penasami Naidu I.L.R. (1927) Mad. 603 : 55 M.L.J. 218; but I would hold that a remand for proper disposal is competent under Clauses (c) and (d) of Section 423. My view as to that and as to Section 476, 476A and 476B not being self-contained is supported by the judgment of a Bench of the Calcutta High Court in Surendranath Maiti v. Sushil kumar Chakrabarti I.L.R. (1931) 59 Cal. 68. I would according answer the question that has been referred to us in the affirmative.
Horace Owen Compton Beasley, Kt., C.J.
8. I agree
9. I agree