1. We think that the answer to the question referred for our decision must be in the affirmative.
2. In the case of Queen-Empress v. Srinivasulu Naidu 21 M.k 124 it was held by a Full Bench of this Court that where action was taken by a Magistrate under Section 476 of the Code of 1882, such action was to be regarded not merely as the lodging of a com-plaint by the Magistrate but was a proceeding which was tantamount to an 'order' of the Court and was, therefore, subject to revision by the High Court under Section 439 of the Code.
3. The decision of this Court in the case of Eranholi Athan v. King-Emperor 26 M.k 98 proceeded on the ground that the Legislature in 1898, by the addition of the words 'and as if upon complaint made and recorded under Section 200' in Sub-section (2) of Section 476, intended to make it clear that when action is taken under Sub-section (1), such action is not to be regarded as an order but merely as the lodging of a complaint.
4. We think that this view is erroneous.
5. The addition in Sub-section (2) appears to have been introduced in order to give Legislative effect to the decision of the Full Bench of the Allahabad High Court in Ishri Prashad v. Sham, Lal 7 A.k 871 and in order to remove the doubts which previously existed as to whether an order under Section 476 could be treated as a complaint within the meaning of Sections 190 and 195 (c), Criminal Procedure Code, and also as to whether the Magistrate to whom the case was sent was bound under Section 200 to examine the complainant, i.e., the presiding officer of the Court upon oath. The Allahabad High Court in the case referred to held that the order of the Court was a sufficient complaint within the meaning of Section 195'.
6. The words as if upon complaint made and recorded under Section 200 'introduced in the Code of 1898 gave effect to this view, and at the same time Section 200 was amended by having the words 'subject to the provisions of Section 476' prefixed to it. The effect of the two amendments was that the order of the Court under Sub-section (1) was to be regarded as a complaint and was to be treated as having been recorded under Section 200. [See the judgment of Banerji, J. In re Bhup Kunivar 26 A.b 262
7. This being, as we think, the correct view to take of the addition made in the Code of 1898, there is no reason to attribute to the Legislature any intention to alter the previously existing law as to the revisional powers of the High Court. If such an intention existed we think that so important a change would have been effected directly by including orders under Section 476 among the orders which are declared by Section 435 (3) not to be proceedings within the meaning of that Section and, therefore, not subject to revision by the High Court, or by some other express words. We may add that the amendment made in 18.98 to Section 537 to the effect that no order of a competent Court shall be altered on appeal or revision on account of any irregularity in proceedings taken under Section 476, unless it has, in fact, occasioned a failure of justice, implies that if it has, in fact, occasioned such failure it is subject to appeal or revision.
8. For these reasons our answer to the reference made to us is that the High Court, as a Court of Revision, has power, under Section 439, Criminal Procedure Code, to interfere, on grounds other than want of jurisdiction, when a Criminal Court has taken action under Section 476, Criminal Procedure Code.