EMPEROR Vs. DAGA DEVJI PATIL

JUDGEMENT

(1.) This is an application for revision by a petitioner, whose appeal to the Sessions Judge of Nasik has been rejected as time-barred.

(2.) It appears that the petitioner is being prosecuted on a charge of having made a false statement under Section 193 of the Indian Penal Code. A complaint against him was made by the First Class Magistrate, Malegaon Taluka, in the Court of the Sub-Divisional Magistrate at Malegaon on June 23, 1927. An appeal against this complaint was made beyond the period of thirty days from that date. But the appellant said that he only came to know of the complaint on August 6 and asked that the delay in presenting the appeal should be excused upon that ground. The Sessions Judge held that it was not true that he first knew of this complaint On August 6. The main reason he gives is that there had been a previous complaint against the petitioner in 1926, in which the petitioner appeared as an accused, but that that complaint was withdrawn for the technical reason, that it had not been signed by the Magistrate himself. That was in April or May 1927; and the appellant, therefore, knew that he was being prosecuted in the matter. It is contended by Mr. Valavalkar on his behalf that Section 476B of the Criminal Procedure Code only allows an appeal to be made after a complaint has actually been made, and that as the appeal was against the making of the complaint and not against the actual order on which that complaint was based, the case does not fall under Art. 154 of the Indian Limitation Act, so as to be an appeal from an "order" within the meaning of that Article. He, therefore, asks that the Sessions Judge's dismissal of the appeal should be set aside, In the alternative he contends that the finding of the Sessions Judge that the appellant did not know of the appeal till August 6, should be reversed, and the ease remanded to the Sessions Judge for disposal according to law.

(3.) I have given careful consideration to Mr. Valavalkar's contention. In my Opinion, an appeal in such a case is, in fact, one against the order of the Court directing a complaint to be made, for the petitioner, in appeal, will have to show that the reasons that the Court had for making a complaint and that are relied upon in its order, are erroneous. Under Section 476 of the Criminal Procedure Code the Court making the complaint has to "record a finding" that enquiry, etc., should be made; and this "finding" clearly comes under the word "order" in Article 154 of the Indian Limitation Act. Section 476B gives the person affected a right of appeal from this order, but only after the complaint has been actually made.