SHAMJI KHIMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two revision petitions arise from a common judgment and are being disposed off by this common order. They are filed by the original complainant Shamji Khima against the order of the learned Sessions Judge Amreli who had allowed the appeal filed by the complainant against the order of the learned Judicial Magistrate First Class Amreli granting B Summary with prosecution and as a result of which two complaints were filed against the complainant. The learned Sessions Judge had remanded the matter to the trial Magistrate with a direction that he should hold a regular preliminary inquiry and record a finding whether it was expedient in the interest of justice to file a complaint.

(2.) The short facts which have given rise to these revision applications are as under:-

(3.) Mr. Chhanesara argued that sec. 476B of the Code was a selfcontained provision and the appellate Court while exercising powers under sec. 476B of the Code had no jurisdiction to order a remand of the case to the learned Magistrate or to stay the complaint. According to Mr. Chhanesara the Sessions Judge was bound to record additional evidence himself and to come to his own decision. On this question it appears there is a good deal of conflict of opinion amongst the various High Courts. The High Court of Lahore in Dhanpat Bai v. Balak Ram A. I. R. 1931 Lah. 761 the Chief Court of Oudh in Mandi Lal v. Ram Adhan A. I. R. 1935 Oudh 59 the High Court of Mysore in M. Subba Rao v. K. Anantha A. I. R. 1959 Mysore 153 and the Full Bench of the Allahabad High Court in Mandi Lal v. Emperor A. I. R. 1937 All. 305 seem to have taken the view that there was such bar under sec. 476B to order the remand. As against this the Full Bench of the Madras High Court in Janardan Rao v. Prattipati Lakshmi A. I. R. 1934 Mad. 53 and the Full Bench of the Patna High Court in Dhup Narayan Singh v. The State A.I.R. 1954 Pat. 76 and the Division Bench of the Calcutta High Court in Surendra Nath v. Susil Kumar A. I. R. 1931 Cal. 604 appear to have taken the view that sec. 476B is not a self contained provision and it being of a supplementary nature the appellate Court had all the powers including the power of remand under sec. 423(c) and (d) of the Code and also the power of summary disposal of the appeal.