MANI SUBBA RAO Vs. KANANTHA BHATTA

JUDGEMENT

(1.) This revision petition is directed against the order passed by the Civil Judge, Shimoga, in Miscellaneous Appeal No. 20 of 1956 directing that a complaint against the petitioner be laid before the Special First Class Magistrate, Sagar, under Section 476-A read with Section 474 of the Code of Criminal Procedure for offences punishable under Sections 193, 465 and 466 read with Section 109 of the Indian Penal Code.

(2.) The facts of the case necessary for appreciation of the several contentions raised by the petitioner briefly stated are as follows: The respondent K. Anantha Bhatta filed a suit against one Nagesh Sait in Original Suit No. 233 of 1954 on the file of the Munsiff, Sagar for recovery of certain amounts and got the areca crop standing on garden attached before judgment. The garden on which the areca plants stood belonged to the petitioner and it had been leased out to Nagesh Sait. The petitioner filed an application under Order 211 Rule 58 of the Code of Civil Procedure for raising the attachment on the ground that the lease was not in force and that Nagesh Sait had surrendered his lease in his favour in the month of April 1954 itself. It may be stated here that the attachment was effected on 17-10-1954 and the claim petition by the Petitioner was filed on 30-10-1954. The respondent resisted the application for raising the attachment and contended that it was false that the lessee had surrendered the lease in favour of the petitioner. After recording the evidence of the parties, the learned Munsiff came to the conclusion that it was false that the lessee Nagesh Sait had surrendered his lease in favour of the petitioner and that the petitioner was in possession of the garden on the date of attachment and dismissed the application. Subsequently the respondent made an application (I. A. No. IV) on 22nd August 1955 under Section 151 of the Code of Civil Procedure praying for sanctioning of the prosecution of the petitioner and others concerned for offences under Sections 198, 465, and 408 of the I. P. C. after necessary investigations and in view of the fact that an application marked Exhibit P. 6 purported to have been filed before the Tenancy Amildar by the petitioner in October 1954 alleging that the lessee had surrendered the garden to him on 5-4-1954 bore on it an ante-dated stamp. It was also alleged in the petition that the applications marked Exhibits D-2, D-3 and D-4 produced before the Tenancy Amildar clearly established the fact that the signature of C. Ramachandrappa, stamp vender, had been actually forged on one of them. The respondent did not examine the stamp vendors in spite of the several opportunities given to him. After recording the evidence of the respondent, the learned Munsiff came to the conclusion that no case was made out for ordering prosecution against the petitioner and rejected I. A. No. IV with costs. The respondent preferred, an appeal against the said order to the Court of the Civil Judge, Shimoga and the same was registered as Miscellaneous Appeal Number 20 of 1956. The appeal was heard in part en 15-6-1957; the respondent then made an application purported to be under Section 151 of the Code of Civil Procedure praying for permission to examine two more witnesses in the light of the observations made by the learned Munsiff in the course of his order rejecting I. A. No. IV. The petitioner objected to an opportunity being afforded to the respondent to adduce any additional evidence but yet the learned Civil Judge allowed the application and directed the learned Munsiff to examine the two stamp vendors and also the Clerk of the Tenancy Court and remanded the case under Order 41 Rule 27 of the Code of Civil Procedure to the Court of the Munsiff, Sagar. After remand the respondent examined the two stamp vendors as additional witnesses. The petitioner did not adduce any rebuttal evidence. The learned Munsiff submitted the re-cords to the appellate Court for necessary orders. The learned Civil Judge having perused the additional evidence recorded by the learned Munsiff after remand, came to the conclusion that a prima facie case for launching prosecution had been made out and directed that a complaint be lodged against the petitioner for offences punishable under Sections 193, 465 and 466 read with Section 109 of the Indian Penal Code. It is the legality of this order that is challenged by the petitioner in this revision petition.

(3.) The short point for decision is whether the order passed by the learned Civil Judge remanding the case for recording additional evidence to the Munsiff is correct. The principal point taken by Sri Govinda Bhat, the learned Counsel for the petitioner, is that the learned Civil Judge had no jurisdiction to remand the case for further enquiry. He contended that the terms of Section 476-B of the Code of Criminal Procedure make it abundantly clear that no such power is vested in the appellate Court and the only powers that an appellate Court has in an appeal from an order under Section 476 are to withdraw a complaint or to make a complaint or to direct the Court from whose order the appeal had been preferred to make a complaint and therefore, the order passed by the learned Civil Judge remanding the case for collecting additional evidence was without jurisdiction and that the learned Civil Judge was not justified in relying upon the evidence so collected in coming to the conclusion that a prima facie case had been made out against the petitioner. There is considerable force in this contention. In Manni Lal v. Emperor, AIR 1937 All 305 a Full Bench of the Allahabad High Court presided over by Sulaiman C. J. held that an appellate Court cannot invoke the aid of its inherent jurisdiction in ordering a subordinate Court to do something in a case and observed that on an appeal under Section 476-B of the Code of Criminal Procedure, the appellate Court has no power to remand a case for further inquiry and reconsideration of it by the subordinate Court, and that there is no other provision in the Code allowing a remand for fresh inquiry corresponding to a re-trial in a case of conviction. The learned Judges of the Full Bench further observed that "it is open to the appellate Court when it finds that the subordinate Court has not made a proper enquiry to report the matter to the High Court on its revisional side and in such special cases the High Court can pass any orders that it considers just and fit. In such cases the High Court would have before it the opinion of the first Court as well as of the appellate Court and would be able to decide whether fresh evidence should be taken or not and whether a fresh enquiry should or should not be ordered." The Lahore High Court took the same view in the Full Bench case reported in Dhanpat Rai v. Balak Ram, AIR 1931 Lab 761. The Court held that "irrespective of whether the trial Court be civil, criminal or revenue, the procedure on appeal under Section 476-B is a procedure under the Criminal Procedure Code. The Appellate Court cannot make a remand to the trial Court, but it can itself make an inquiry in a case where it comes to the conclusion either that the trial Court has made no preliminary inquiry at all, or has made a detective inquiry, and take all evidence necessary for making or completing the preliminary inquiry. It cannot however take additional evidence under Section 428 as that section is specifically limited to appeals under the chapter in which it occurs." The Madras High Court took a contrary view in a Full Bench case reported in Janardana Rao v. Lakshmi Narasamma AIR 1934 Mad 52. The learned Judges held that the provisions of Chap. 31 can be applied to the hearing of an appeal under Section 476-B. The calling for further evidence is not permissible under Section 423, but a remand for proper disposal is competent under Clauses (c) and (d), Section 423. In an appeal under Section 476-B in a civil proceeding therefore the appellate Court has power to remand the matter back to the lower Court for disposal. In coming to this conclusion their Lordships relied upon a decision of the Calcutta High Court reported in Surendra Nath Maity v. Susil Kumar Chakrabarty (AIR 1931 Cal 604). All these decisions were cited and considered by Mudholkar J. in Vithoba Bala v. Goval Prasad, AIR 1949 Nag 343. His Lordship after reviewing all the decisions held that the appellate Court in an appeal from an order under Section 476 refusing to make a complaint, has no power to remand the case for recording evidence and for making further inquiry. His only powers under Section 476-B are to withdraw the complaint or to make a complaint or to direct the Court from whose order the appeal is preferred to make a complaint. He further held that the only other provision which applies to an appeal under Section 476-B is Section 423. Neither Clause (c) nor Clause (d) of Section 423(1) gives this power to the appellate Court. Dealing with the several decisions His Lordship observed as follows: "The main point taken by the learned counsel for the applicant is that the Additional District Magistrate had no jurisdiction to remand the case for further inquiry. In support of this contention he relies on the terms of Section 476-B, Criminal P. C. The learned counsel for the non-applicant relies on the decisions in Krishnamachari v. Emperor, AIR 1933 Mad 767 35 Cri LJ 503. AIR 1934 Mad 52: 35 Cri LJ 392 (FB) and Vithoo Raghoji v. Emperor AIR 1938 Nag 487: 40 Cri LJ 388 and argues that the appellate Court has power to remand a case for further inquiry. In AIR 1933 Mad 767: 35 Cr. LJ 503 the learned Judges say that Section 476-B, Criminal P. C. is not exhaustive of the powers of an appellate Court and that an appellate Court has power to remand a case. While I agree with the former proposition I am afraid I cannot agree with the latter, in support of which no reason even is given. In AIR 1934 Mad 52 the learned Judges say that an appellate Court has power under Section 423(1)(c) and (d) to remand a case for further inquiry. Neither Clause (c) nor Clause (d) seems to confer such power on the appellate Court. The former gives power to the appellate Court to 'alter or reverse' an order, while the latter gives the appellate Court power to 'make any amendment or any consequential or incidental order that may be just and proper.' An order of remand of the nature contemplated by the learned Judges does not clearly fall under Clause (c) nor again, can it fall under Clause (d) as it is neither a consequential nor an incidental order. With great respect to the learned Judges I am, therefore, unable to accept their view. As regards the decision in AIR 1938 Nag 487: 40 Cr. LJ 388 there is apparently, a misconception on the part of counsel. In this case it has nowhere been stated that an appellate Court can remand case for taking additional evidence or for making further inquiry, nor did this question at all arise. All that is said by Grille C. J. who decided the case is that an appellate Court can remand a case for making a complaint, which is quite another matter. It seems to me to be plain from the words of Section 476-B, Criminal P. C. that the only powers which an appellate Court has in an appeal from an order under Section 475 are to withdraw a complaint or to nuke a complaint or to direct the Court from whose order the appeal had been preferred to make a complaint. The only other provision which applies to an appeal under Section 476-B is Section 423 Criminal P. C. As I have already said, that section does not entitle the appellate Court to pass an order of remand." "With great respect, I am in entire agreement with the above view expressed by Mudholkar J. I am clearly of the opinion that the learned Civil Judge had no jurisdiction to remand the case to the lower Court for recording additional evidence and to base his conclusions on the additional evidence so collected. The prosecution ordered by the learned Civil Judge on the basis of the additional evidence so collected cannot be supported and is liable to be set aside.