1. This is an appeal under Section 476B, Criminal P.C. against an order of the second Additional District Judge of 24-parganas complaining or purporting to complain under Section 476 against; the appellants recommending their prosecution under various sections of the Indian Penal Code. The fasts are that an application for the appointment as guardian of two minors was made by the third appellant Surendra Nath Haldar under an authority purported to have been given by the father of the ehildTen appointing Surendra Haldar as the guardian of the minors after the father's death. Subsquently the mother of the minors (the respondent Bistoomoni Dassi) applied to have the order appointing Surendra as the guardian of the minors revoked. In the course of these proceedings an award was filed on behalf of Surendra compromising the case on certain terms. This award was objected to by Bistoomoni and the whole case was then tried by the then Second Additional District Judge, Mr. G.N. Roy, who by his judgment dated the 8th May, 1926, held that the authority conferring the guardianship and the award were both false documents; and the learned Judge revoked Surendra's certificate of guardianship and appointed Bistoomoni guardian of the minors. Against this order an appeal has been preferred to this Court (being M.A. 312 of 1926) and this appeal is pending.
2. On the 1st September, 1926 an application was made by the respondent Bistoomoni before Mr. Jameson who succeeded Mr. G.N. Roy as the Second Additional District Judge for an order under Section 476, Criminal P.C. complaining against the appellants under several sections of the Indian Penal Code mentioned therein. On that application an order was passed by Mr. Jameson (to which I will refer later) on the day namely the 1st September 1926. This order was passed exparte. The papers were sent to the Additional District Magistrate of Alipore and summonses were issused against all the appellants, excepting the appellant Kishore Gayen which were served upon them on the 20th October 1926. The appeal to this Court was presented on the 5th January 1927, when it was placed before the Court and admitted. Mr. Roy Chowdhury who represents the Crown has taken a preliminary objection on the ground that the appeal, at any rate of the first four appellants, was filed out of time and is therefore barred under Article 155 Limitation Act not having bean presented within 60 days of the order appealed against. The appellants are not entitled to any allowance of the time occupied in taking the necessary copies as appears from the dates mentioned on the back of the copy; but it is argued on their behalf that they are entitled under Article 156 Limitation Act to 90 days from the date of the order. This contention of the appellants 13 clearly wrong The appellants having come to know of the ex-parte order passed against them on the 20th October last the appeal presented by them on the 15th January 1927 is on the face of it time-barred.
3. The appellants argue that this is an appeal from the order of a civil Court and should therefore be considered as an appeal in a civil case. This view is erroneous inasmuch as the right to appeal is given by the Criminal P.C. against an order passed under that Code, In Chunder Kumar Sen v. Mathuriya Debya A.I.R. 1228, it was held that an appeal under Section 476B, must be presented within the time prescribed by Article 154 Limitation Act the appeal in that case being to a Court subordinate to a High Court. The same rule of law will apply to an appeal preferred under Section 476B against an order of the lower Court to the High Court the governing article being Article 155, Limitation Act. In this view the appeal of the first four appellants must therefore be held to be time barred. But there is another circumstance which we cannot lose sight of. The appeal was admitted by our learned brothers Coming and Gregory, JJ. The facts on which the appellants rely for an extension of time if the appeal was held to be out of time, are mentioned in the petition. We are not in a position to say that these facts were not brought to the notice of the learned Judges who admitted the appeal and the might have thought that it was a proper case for concession in favour of the appellants. This view gain some strength from the decision of this Court in the case of Hamid Ali v. Madhu Sudan Das A.I.R. 1927. There Chotzner J., was of opinion that an appeal under Section 476 B, Criminal, P.C. must be treated as an ordinary appeal under the Criminal P.C. But Duval, J., was of opinion that such an appeal must be treated as a miscellaneous civil appeal and regulated by Order 41, Civil P.C. This difference of opinion between two learned Judges may afford a reasonable ground for appellants to suppose that the appeal was a civil appeal and they had 90 days' time from the date of the order to prefer an appeal to this Court. In this view we propose to hear the appeal of the first four appellants.
4. As regards the appeal by Kishore Mohan : there is no doubt that it is within time. The order for the issue of summons against him was passed on the 6th December 1926 and it was actually served upon him on the 18th December 1926. The fact that Kishore's appeal is in time, and that we have to hear it, has induced us to a certain extent to admit the appeal of the other four appellants.
5. Now, to come to the real question in the case, namely whether there was a proper order under Section 476, Criminal, P.C. upon which action could bo taken by the criminal Court. The opposite party, Bistoomoni Dasi, filed an application on the 1st September stating all the circumstances of the case and prayed:
Your Honour may be graciously pleased to lodge a complaint with the Magistrate for trial of the opposite parties Nos. 1, 2, 3, 4 and 6 under Sections 463, and 193, I.P.C., and of the opposite party No. 1 under Sections 463, 471, 193 and 196, I.P.C., and of the opposite party No. 5 under Section 193, I.P.C.
6. On the margin of this application the order written by the learned Judge Mr. Jameson is:
Write to A.D.M. about the matter and ask him to proceed under Section 475, Criminal P.C.
7. It is not apparent what further proceedings were taken in this matter, but it appears from the Magistrate's record that in all probability this application, with the order thereon, was sent to the Magistrate because there is a letter dated the 16th November; 1926, from Mr. Jameson to the District Magistrate in which it is stated that no preliminary enquiry as was asked for by the Magistrate was necessary as prima facie the case had been made out in the judgment of his predecessor. On receipt of this letter the Additional District Magistrate passed the following order:
The order of the Additional District Judge on the margin is treated as a complaint and cognizance taken. I have made over to S.D.O. Diamond Harbour, for disposal.
8. This shows that the order written by Mr. Jamsson on the margin of the application of the opposite party was treated as a complaint upon which criminal proceedings were started under Section 476, Criminal P.C. Section 476, so far as it is relevant for oar present purpose, runs like this : When any civil Court is of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Section 195, &c.;, which appears to have been committed in or in relation to a proceeding in that Court, such Court may record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court and shall forward the same to a Magistrate, &c.; The section therefore requires that the Court has himself to find that in the interest of justice an enquiry should be made; as also that he should record a finding to the effect that such enquiry should be made into any offence committed in relation to a proceeding in that Court. The Court has further to make a complaint thereof in writing signed by the presiding officer of the Court. Complaint' has been defined in Section 4, Criminal P.C., as:
An allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence.
9. The section therefore requires that the Court should record a finding that in the circumstances of the case before it an enquiry into the offences mentioned should be made and that he should make a complaint in those terms in writing signed by him. In the present case the only order was 'write to A.D.M. about the matter.' This order was presumably passed upon the office and was not in any way a recommendation or a complaint to the criminal Court to take action in the matter. It is not therefore an order passed under Section 476, Criminal P.C., nor a complaint within the meaning of the Criminal Procedure Code.
10. But it has been argued on behalf o the Crown, as well as by Mr. Pakrashi who appears for Bistoomoni Dassi that the order must be construed with reference to the petition upon which it was passed. Though I am not sure that it would be correct for a Court to refer to a petition in passing an order like this according to the term3 of Section 476, but conceding that it can be read along with the petition I do not find that there is any order which can be said to be a complaint to the criminal Court. I am accordingly of opinion that the order upon which the proceedings have bean started in the criminal Court ii not an order under Section 476, Criminal P.C. It is not necessary in this view to set a3ide the order passed by Mr. Jameson on the 1st September 1926, in so far as it directs the office to take certain steps. But if it is regarded as an order under Section 476, it must, in my opinion, be discharged.
11. I should like to add that in the circumstances of this case, when an application was made under Section 476, Criminal P.C., before a Judge who had not heard the case it would have been a better exercise of discretion to issue notices upon the opposite parties and pass proper orders after hearing them. In the present case the opposite party had already filed an appeal to this Court against the order o Mr. G.N. Ray. If this fact was brought to the notice of Mr. Jameson, it was possible that he might have stayed his hands till the disposal of the appeal.
12. It is still open to the respondent opposite party to apply for a fresh order under Section 476, Criminal P.C., in which ease the learned Judge will no doubt act according to law. But considering that an appeal is pending in this Court, in my opinion, the proper course is to wait for the result of the appeal. In this view I will allow the appeal.
13. I agree with what ha3 fallen from my learned brother and with the order which he proposes to pass. I wish to add that in a case such as the present it was necessary for the Judge who intended to make a complaint to look into the facts of the ease and to decide what offences had teen committed by what particular person. Mr. Jameson did not try the case for# revocation and he was not aware of the facts. The judgment which was delivered by his predecessor does not contain anything from which it can be ascertained that particular persons had taken part in the commission of any particular offence. The law requires that when certain classes of offences are committed, no Court should take cognizance of such offence3 unless the Court, before whom or in relation to the proceeding before which such offences have been committed, moves for this purpose and removes the legal bar to the prosecution. There is nothing on the record to show that Mr. Jameson applied his mind to this matter or decided what offences had been committed or who had committed them; and therefore it must be taken that the second letter written by him to the Magistrate cannot by any stretch of language amount to a complaint. In my opinion that complaint, if it is treated as one, should be quashed because it is not in compliance with law. I would further point out that in the petition that was filed by Bistoomoni there is a prayer for the prosecution of the accused parsons (appellants before us) on charges under Section 463. No offence is punishable under that section, for Section 463 defines forgery. The offence is punishable under Section 465. I find from the record that the Magistrate has issued summons under Section 463, I.P.C. This would lead to trouble later on. In all these circumstances I agree with the order which my learned brother has passed.