1. The respondent made an allegation against the appellant that he had caused the disappearance of a ledger from the precincts of the Court and fabricated some secondary evidence. The same allegation was put forward during the course of the suit in which the ledgers had been filed. The trial Court found against the respondent. The respondent appealed and the appeal was dismissed. The second appeal to this Court is still pending. During the course of the appeal and second appeal, the respondent filed this application, requesting the Court under Section 476, Criminal Procedure Code, to file a complaint against the appel ant. The Court, acting on very much the same evidence as it had in the course of the suit, concluded that the disappearance of the evidence was due to somebody acting on the part of the respondent and not of the appellant and that the secondary evidence was true. He then fore refused to file a complaint. On appeal under Section 476-B, the learned District Judge thought that the enquiry of the learned Subordinate Judge had been rather perfunctory; so he allowed the appeal and remanded the suit, with a direction that the present Subordinate Judge (the successor to the Judge who had passed 'the order' refusing to complain) should make such enquiry as he deemed fit and hear and decide whether any prosecution or prosecutions were necessary in the interests of justice.
2. Whatever the powers of remand may be, the learned Judge was not justified in ordering a remand under the circumstances, lie did not feel himself in a position to give any definite finding on the questions before him; but he thought that a, further enquiry carried out by the Subordinate Judge suo motu might produce something more definite on which he could act. The provisions of Order 41, Rule 23 were not therefore complied with, as a remand can be ordered only where the appellate Court finds it necessary to set aside a decree. That he can do only if he has material for concluding that the decree was wrong. Apart from this, however, clearly an appellate Court cannot direct the trial Court to think over a matter once again and give fresh findings on the same issues, giving some vague and general direction to make some further enquiry. The learned advocate for the respondents argues that the learned District Judge was justified in ordering what he did; because the wording of Rule 25 of the same order gives support for that argument. The learned Judge directed the trial Court to make such enquiry as it deemed fit and hear and decide whether any offences were prima facie established and whether any prosecution or prosecutions were necessary in the interests of justice. Those were the very matters which the trial Court had already considered.
3. It may be open to the learned District Judge, in view of the fact that a complaint may be made suo motu as well as on applications from parties, to delve into the matter himself if he so wishes and decide on any fresh material that may be forthcoming as a result of his researches to complain or not to complain; but he must do that himself and riot direct the Subordinate Judge to do so.
4. The petition is allowed and the appeal (CM.A. No. 13 of 1948) remanded to the District Judge for fresh disposal in the light of the observations contained in this judgment. The costs of this civil revision petition will abide the result of the appeal.