1. This is a Rule obtained by the petitioner calling upon the District Magistrate of Burdwan to show cause why an order made by the Sessions Judge of Burdwan who allowed an appeal against an order of the Assistant Sessions Judge of Burdwan and directed under Section 476-B, Criminal P.C., a complaint to be lodged to the effect that the petitioner had committed offences punishable under certain of those sections of the Indian Penal Code to which Section 195, Sub-section (1), para. (e), Criminal P.C., applies should not be set aside. It appears that an application was made to the Assistant Sessions Judge of Burdwan who was the successor of the Assistant, Sessions Judge who tried the case in connexion with which the offences are said to have been committed to make a complaint under Section 476. This the learned Assistant Sessions Judge refused to do. An appeal was made to the sessions Judge under Section 476-B with the result that the order refusing to make a complaint was set aside and the learned Sessions Judge expressed his intention of lodging a formal complaint before the Subdivisional Officer. We are not concerned with the merits of the Sessions Judge's decision because the Rule has been granted on two grounds alone which raise a question of jurisdiction.
2. It is said on behalf of the petitioner that in the circumstances of the case no appeal under Section 476-B lies to the Sessions Judge and that if the applicant before the Assistant Sessions Judge desired to question the propriety of the. Assistant Sessions Judge's refusal to lodge a complaint his remedy was by way of an appeal to the High Court. To decide this question it is necessary to examine the relevant sections of the Code of Criminal Procedure. Section 476-B provides that in a case where the Court has refused to make a complaint under Section 476 the person whose application has been rejected may appeal to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3). Section 195, Sub-section (3) enacts that a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the decisions of such former Court. In the case of Assistant Sessions Judges 13. 408, Criminal P.C, provides that an appeal shall lie to the Court of Sessions subject to the proviso that when an Assistant Sessions Judge passes a sentence of imprisonment for a term exceeding four years or any sentence of transportation an appeal shall lie to the High Court. I do not think it necessary to discuss what meaning is to be attached to the word 'ordinarily' in Section 195 or to come to any decision whether appeals from Assistant Sessions Judges ordinarily lie to the Court of Session rather than to the High Court or to the High Court rather than to the Court of Session. It is clear that appeals do lie from convictions by Assistant Sessions Judges some of which are to be dealt with by Courts of Session and some by the High Court. When we turn to the proviso of Section 195, 'Sub-section (3) we find that when appeals lie to more than one Court the appellate Court of inferior jurisdiction shall be the Court to which the trial Court shall be deemed to be subordinate.
3. It is clear that these words cover the case, to which the learned advocate for the petitioner has referred, of the Court of Subordinate Judge from whom an appeal lies either to the Court of the District Judge or to the High Court according to the value of the subject-matter of the suit. The question is whether the proviso gives us any indication to what Court an appeal lies from an under made by an Assistant Sessions Judge under Section 476. Mr. Basu contends that Sub-section (3) cannot apply to Assistant Sessions Judges and Courts of Session for he says that the subordinate Court must be a different Court from the one to which it is subordinate and the proviso contemplates a Court which is subordinate to two different Courts in the sense that appeals lie from it to both those Courts and lays down that in such a case the Court of inferior jurisdiction shall be the Court to which the original course shall be held to be subordinate for the purpose of the section. He also points out that Assistant. Sessions Judges, Additional Sessions Judges and Sessions Judges are all Judges of the same Court, namely, the Court of Session. That would appear to be the case both from the language of Section 6, Criminal P.C,, which only contemplates besides High Courts, Courts of Session and various Magistrates' Courts and also from the language of Section 9 which contemplates the establishment by the Local Government of a Court of Session for every Sessions Division and the appointment of a Judge of such Court and also of Additional Sessions Judges and Assistant Sessions Judges, all of whom are members of the same Court.
4. In addition to the Code there is also a case of The Superintendent and Remembrancer of Legal Affairs, Bengal v. Ijjatull Paikar : AIR1931Cal190 . In that case it was held that when an offence under Section 193, I.P.C., had been committed in a proceeding before an Additional Sessions Judge and the Additional Sessions Judge had been transferred, the Sessions Judge had jurisdiction to make a complaint under Section 476 because he was the Judge of the same Court,' namely, the Court of Session, as the Additional Sessions Judge. I think that there is considerable force in Mr. Basu's argument, but if it is sound it must follow that no appeal can lie under Section 476-B, Criminal P.C., against an order of a Judge of the High Court sitting singly on the original side to a Division Bench of the Court because if it is necessary for the Court from which an appeal is to lie under Section 476-B to be a Court different from the Court making the order under Section 476, that condition will not be satisfied because the High Court exercising its ordinary original civil jurisdiction is the same Court as the High Court exercising its appellate jurisdiction. This very point has been considered and decided in the case of Ramjanali v. Moolji Sheikh & Co. : AIR1929Cal521 where Rankin, C.J., and Buckland, J., held that not only did an appeal lie from a single Judge of the High Court exercising original civil jurisdiction to a Division Bench where a single Judge has made a complaint under Section 476 but also that such an appeal lay by virtue of the provisions of Section 476-B. In taking this view the learned Judges relied upon two decisions: one a Pull Bench decision of the Madras Court High Court and the other a decision of the Bombay High Court.
5. It appears to me that the same considerations apply in the present case. Although, as I have said, Mr. Basu's argument is attractive and the language of the Code is not altogether happily chosen we are of opinion that an appeal from the sentence of an Assistant Sessions Judge does ordinarily lie to a Court of Session even though an Assistant Sessions Judge is a member of that Court. If it cannot be said also ordinarily to lie to the High Court no question arises. But if it can be said 'ordinarily to lie to the High Court' proviso (a), Sub-section (3), Section 195, applies and the appeal under Section 476B must be held to lie to the Court of inferior jurisdiction, namely, Court of Session. These considerations dispose of the matter and since we are of opinion that the grounds on which the Rule was granted have not been shown to be sustainable the Rule must be discharged.
6. I agree.