KODURU JANARDANA RAO Vs. PRATTIPATY LAKSHMI NARASAMMA

JUDGEMENT

(1.) The question that has been referred to us is: In an appeal under Section 476B of the Criminal Procedure Code in a civil proceeding has the appellate Court power to remand the matter back to the Lower Court for disposal?

(2.) In the course of the argument reference has been made to Rama Aiyar v. Venkatachella Padayachi (1906) I.L.R. 30 Mad. 311 : 17 M.L.J. 123. In that case it was held that a Court exercising what is therein called its appellate jurisdiction under Section 195, Criminal Procedure Code, that is under the now abolished Clause (6) of that section, had no power to remand a case for fresh enquiry. I do not, however, think that that decision can be quoted as an authority directly bearing on the point now under reference. Though Section 195(6) gave to the superior Court powers that were of an appellate character, the clause said nothing as to the powers which it gave of granting or revoking a sanction to prosecute being given to a Court as a Court of Appeal. On the other hand the new Section 476B specifically refers to the powers which may be exercised on appeal by a superior Court in a case where an inferior Court has refused to make a complaint or has directed that a complaint should be made. This has made the position very different, as what was of the nature of an appeal has become definitely an appeal. It has to be considered, then, whether a Civil Court when sitting as an appellate Court under Section 476B has the power of remand which this Court found that it did not possess under Section 195(6).

(3.) What has first to be considered is whether an order passed by a Civil Court under Section 476B, Criminal Procedure Code, is of a civil character so that the provisions of the Civil Procedure Code can be applied to it. In this Court it is the practice to treat revision petitions against an order passed under Section 476B as being made under Section 115, Civil Procedure Code. If this practice be correct, then, in the view of Duval, J. in Hamid Ali V/s. Madhu Sudan Das Sarkar (1926) I.L.R. 54 Cal. 355, an appeal under Section 476B, Criminal Procedure Code, is a Civil Miscellaneous Appeal to which Order 41 of the Civil Procedure Code applies. And if Order 41 applies then the Civil Court that takes action under Section 476B will no doubt have power to remand. There has, however, been a variance of opinion as to whether a Civil Court that takes action under Section 476B, Criminal Procedure Code, can be considered to be acting under the provisions of the Civil Procedure Code. In the matter of the Petition of Bhup Kunwar (1903) I.L.R. 26 All. 249 a majority of two Judges, dealing with Section 476, Criminal Procedure Code, as it stood before Section 476B was added, held that they could revise such an order under Section 622 (now Section 115), Civil Procedure Code, but the third Judge held that such power of revision was exercised under Section 439, Criminal Procedure Code. After the introduction of Section 476B it has been held in Abdul Haq V/s. Sheo Ram (1927) I.L.R. 49 All. 536 by a single Judge that an appellate order in such a case was revisable by the High Court only on its Civil Side. The same view has been expressed by the Calcutta High Court in Emperor V/s. Har Prasad Das (1913) I.L.R. 40 Cal. 477 (F.B.), which is a decision by five Judges. In this it has been tersely put that it is plain that an order under Section 476 may be revised by the High Court under Section 115 of the Civil Procedure Code. The same view has been expressed by the Patna High Court in Jagannath v. Rajagopalachari A.I.R. 1931 Pat. 411.