1. The facts necessary to be stated for the purpose of this rule are these: One Naimuddin was the complainant in a case under Section 426, I.P.C., against one Hanif and others, which was tried by Maulvi Mir Hossain, a Magistrate of the Third Class. The accused persons pleaded that the land concerned had been purchased by them and that the complainant Naimuddin was himself an attesting witness to the deed of purchase. The petitioner Mohim Chandra Nath Bhowmik gave evidence in support of the defence proving the execution of the deed and the signature of Naimuddin therein. Naimuddin, while the trial was pending, denied his signature in the deed and applied to the trying Magistrate for the prosecution of all concerned in the forgery. The accused persons were acquitted, the trying Magistrate being doubtful as to the forgery. After the case was over Naimuddin pressed his aforesaid application. The trying Magistrate instead of dealing with the matter himself, as he should have done, forwarded the papers to the Sadar Sub-Divisional Officer for necessary action. The Sadar Sub-Divisional Officer returned the pipers to the trial Magistrate with the following remarks:
The only materials are the denial of execution by the complainant, and the dissimilarity of the left thumb impression of the complainant from those on the document Ex. 1. The Court too did not on the judgment come to any finding that it is forged. As such I would leave to complainant to move in the matter if the left thumb impression be really forged.
2. What other action on the part of the complainant was contemplated by these remarks it is difficult to see: evidently the learned Sub-Divisional Magistrate was thinking of sanction under Section 195 as distinguished from order for prosecution under Section 476, Criminal P.C., forgetting for the moment the changes effected by the amendments of 1923. As the trying Magistrate did not pass any final order in the matter the complainant moved Mr. L.B. Das, a Deputy Magistrate who had powers under Section 407(2), Criminal P.C. and that officer asked the trying Magistrate to pass such orders. When the said order of Mr. L.B. Das arrived before the trying Magistrate, he rejected the complainant's prayer in these words:
Read the order of the appellate Court. Looked into the connected record including the petition of Naimuddi. I have not been personally convineed about the guilt of the accused party and I do not think it quite proper to proceed under Section 476, Criminal P.C.
3. The complainant then preferred an appeal which was admitted by the Joint Magistrate, and on the latter vacating his office Mr. L.B. Das, who it is said, succeeded him, dealt with the appeal and being of opinion that the acquittal of the accused persons Hanif and others was wrong and that a prima facie case was made out against the petitioner directed, under Section 476-B, Criminal P.C. a complaint to be lodged against the petitioner for offences under Sections 193 and 465 read with 109 I.P.C. On that complaint the petitioner has been put upon his trial. He impugned at his trial the validity of the proceeding taken against him on the ground that Mr. L.B. Das though he had power under Section 407(2), Criminal P.C. was not competent to pass the order under Section 476B, Criminal P.C., and that consequently the proceedings taken on that complaint cannot stand. The objection has been overruled by the Court in which the trial is going on and the Sessions Judge on being moved to make a reference to this Court has declined to interfere. The petitioner has then moved this Court and obtained the present Rule.
4. One of the grounds upon which the Sessions Judge has declined to make a reference to this Court is that the petitioner not having appealed from the order passed by Mr. L.B. Das under Section 476-B, is precluded by reason of Section 439(b), Criminal P.C., from invoking the revisional powers of this Court. This ground has no substance as, apart from other reasons, no appeal lay from Mr. L.B. Das order: Ahamadar Rahman v. Dwip Chand Chowdhury : AIR1928Cal281 .
5. In support of the contention that Mr. L.B. Das. though empowered under Section 407, Sub-section (2), Criminal P.C., to hear appeals from the sentence of the Court of Moulvi Mir Hossein, was not the presiding officer of a Court to which appeals from the Court of Moulvi Mir Hosain ordinarily lay within the meaning of Section 195, Sub-section (3), Criminal P.C. so as to be competent to hear the appeal under Section 476 B, Criminal P.C., the petitioner has relied upon the decision of this Court in the case of Sadhu Lall v. Bam Chum Pasi  30 Cal, 394. On the other hand, the Grown has in the first place relied upon the contention urged in the Magistrate's explanation which seeks to make out that the decision is no longer of any force because of the alteration in Section 195 by the Amending Act of 1923. The alteration to which reference has been made in this behalf is the omission of the word 'only' from Sub-section (7) of that section as it stood in the Act of 1898 : vide Sub-section (3) of Section 195 as it stands at present. It has been urged that because the word 'only' is no longer in the sub-section, there is nothing to prevent two Courts namely that of the District Magistrate as well as that of the Deputy Magistrate empowered under Section 407, Sub-section (2) being regarded as Courts to which appeals ordinarily lay from the Court of Maulvi Mir Hossain and that if that be the position then under proviso (a) to the sub-section the Court of Mr. L.B. Das would be the only Court to which the Court of Moulvi Mir Hossain would be subordinate within the meaning of Section 195. In my opinion the omission of the word 'only' has no such significance, and the words to which appeals ordinarily lie' should still be understood in the sense attributed to them in the decision aforesaid. The wording of Section 407 has not undergone any change and the decision aforesaid appears to have been followed by almost all the superior Courts in this country, and no dissent against it has been expressed anywhere except in the dissentient judgment of Benson, J. who was in the minority in the Full Bench case of Eroma Variar v. Emperor  26 Mad. 656 (F.B.). The Crown has, in the next place, relied upon the decision in the case of Queen-Empress v. Subbaraya Pillai  18 Mad. 487. That case, however, was decided under the Code of 1882 in which the wording of Section 407 was materially different as has been pointed out by White, C.J. in the case of Eroma Variar v. Emperor  26 Mad. 656 (F.B.) and in any event I do not see any good reason to depart from the view which our own Court has taken of the meaning of the words 'to which appeals ordinarily lie.'
6. Finally it has been contended on behalf of the Crown that if Mr. L.B. Das had no jurisdiction to make a complaint under Section 476 B, it should be held that the case has been instituted without a proper complaint and an omission of this character is curable by Section 537,. Criminal P.C. This argument overlooks the bar which Section 195 imposes. It also overlooks that what Section 537 provides for is an error, omission or irregularity in the complaint and not the entire absence of a complaint without which no cognizance of the offence can be taken under the law.
7. The result is that the proceedings instituted upon the basis of Mr. L.B. Das' order which purports to have been made under Section 476, Criminal P.C., cannot go on. They are accordingly quashed.
8. We should observe that in the view that we take the complainant's appeals from the order of Moulvi Mir Hossein refusing to make a complaint under Section 476, Criminal P.C., has not yet been disposed of by a Court competent to deal with it. It follows, therefore, that if the complainant desires to proceed with that appeal any further, it will necessarily have to be heard by the District Magistrate and disposed of by him in accordance with law and in the light of those well-established principles which govern appeals of this description. The rule is made absolute.
9. The true construction of the words 'Court to which appeals ordinarily lie' in Section 195 (3), Criminal P.C., seems to be not free from doubt. But on the whole I see no reason to differ from the view taken by my learned brother and I agree that we should follow the decision of this Court in Sadhu Lal v. Ram Charan Pasi  30 Cal, 394 and that the Rule should be made absolute.