HUKAMCHAND Vs. CHINNARAM POORANMAL

JUDGEMENT

(1.) THIS is an application for revision by Hukumchand and is directed against the order of the learned Additional Sessions Judge, Jaipur, who has remanded a case under section 476 of the Code of Criminal Procedure to the first court with the direction to hold a preliminary enquiry and thereafter give its fresh finding in accordance with law.

(2.) THE facts are that in a Civil suit brought by the firm Motilal Suresh-chandra against Ghinnaram (opposite party in this revision) in the court of the Civil Judge, Phulera, Hukumchand was examined as a witness for the plaintiff. During his cross-examination on the 8th April, 1950, a notice Ex. C. 1 was shown to him and it was admitted by him. On the 25th April, 1950, the opposite party made an application before the learned Civil Judge under sec. 476 of the Code of Criminal Procedure praying to the court that a complaint be made against the applicant under sec. 466 of the Penal Code as the applicant had torn a portion of the notice Ex. C. 1 after its production in court and had added certain thing on its back. On this application, the learned Civil Judge, issued a notice to the applicant to show cause why a complaint under sec. 476 be not made against him. 5th May, 1950 was fixed for showing cause.

(3.) IT is clear from the wordings of sec. 476 B that an appellate court is not bound to give a notice of the appeal to the parties concerned. IT may dismiss the appeal without sending any notice to the parties, but the only interference which it can make with the order of the subordinate court after notice to the parties concerned is that in case where the complaint has been made by the lower court, it may direct the withdrawal of the complaint or where the lower court has refused to make the complaint it may itself make a complaint. No other interference is allowed. But the appellate court is not bound to make such interference once it has issued notice to the parties. IT has got another power and it is that of not interfering with the order of the lower court i. e. of dismissal of the appeal. This power has not been expressly mentioned because the legislature thought that it can be read in sec. 476-B by necessary implication. Dismissal has not been mentioned under section 476-B, it is to be sought elsewhere in the Code and it is to be found in Chapter 31. To my mind sec. 476 B gives the power of dismissing the appeal summarily or after notice to the parties by necessary implication. IT expressly gives the power of interference with the order of the subordinate court only to this extent that either it may withdraw the complaint where it has been made by the lower court or it may itself make a complaint where the lower court has refused to make a complaint. No other power of interference can be read in the section either expressly or by necessary implication.