AHAMADAR RAHMAN Vs. DWIP CHAND CHOUDHURY

JUDGEMENT

(1.) This is an appeal from an order, dated 5 March 1927, and made by the District Judge of Chhittagong under Section 476-B, Criminal P.C. It appears that the appellant was a tenant to and tahsildar of a certain party; He, in the course of his duty, appears to have collected rents due to his masters and there was certain litigation between the parties. In 1924 the masters brought certain rent suits for arrears in respect of the years 1920 to 1923 against the present appellant and his co-sharers. He pleaded full payment as regards the rent of 1920 and part payment as regards the later years, and on this latter point he supported his case by producing two dakhilas, Ex. A and Ex. A-1. It is said that Ex. A is a dakhila emanating from the sudder cutchery and Ex. A-1 was given by one Mahendra under orders of the sudder cutchery. Be that as it may, the Munsif, in whose Court the suit was brought, decreed the rent suit in full and appears to have made an observation that the dakhilas were suspicious. Thereupon the plaintiffs in the case made an application to the Munsif under Section 476, Criminal P.C., asking him to take steps by making a complaint to institute prosecution of the present appellant for producing in evidence these documents known by him to be false in other words, for perjury and forgery. The case itself-the rent suit-went on appeal to the District Judge, but the Munsif's finding was affirmed on 10 July 1926, Thereupon the petition asking the Munsiff to make a complaint to the Magistrate was revived and a miscellaneous case was started and the parties commenced to contest the question whether the Munsif's Court ought not to make a complaint against the present appellant. How far they contested it on the merits is doubtful, because it would appear that in the end, on 4 December 1926, the application of the plaintiffs-landlords was dismissed for default. Taking that order of dismissal for default as being, in the words of Section 476-B, a refusal to make a complaint, the plaintiffs-landlords appealed against it to the District-Judge who, on 5 March 1927, made the order against which the present appeal is brought. By his order the learned District Judge gives certain reasons which appear to him to amount to good prima facie proof that the dakhilas were forgeries. He goes into the questions of the counterfoils, the numbers of the counterfoils and so on. He comes to the conclusion that there is a good prime facie case, not only that they were forgeries, but that the present appellant used them knowing them to be forgeries.

(2.) In the present appeal the first question that arises is whether, in a case like this, an appeal lies to the High Court or not. That question depends upon the words of Section 476-B, Criminal P.C. What is said is that, in a case where the first Court, in dealing with an application to lodge complaint, refuses to lodge a complaint, and an appeal is taken to a superior Court which decides to make a complaint there is a further right of appeal from that; because Section 476-B, having operated to give an appeal from the order of the first Court dealing with the matter, operates all over again when the second Court decides that a complaint should be made. Mr. Fazlul Huq, the learned Advocate who appears for the appellant, does not contend that, if in such a case as this the superior Court had dismissed the appeal, thereby refusing to make a complaint and agreeing with the Court below from such an order, a right of appeal to the High Court would lie. He contends that it makes all the difference that the order of the superior Court was an order which for the first time amounted to the making of a complaint. He agrees, too, that if in the first Court a complaint had been made and on appeal the appeal had been dismissed, no further appeal would lie to this Court. He contends that in the particular case, where the first Court having refused to make a complaint a superior Court differs and does for the first time make a complaint then Section 476-B operates to give what is in effect a second appeal. There is some authority upon this question and it is very important that the matter should be rightly decided. The question is whether the intention of the legislature was to give one appeal from every decision upon an application for an order that a complaint shall be made, or whether the intention of the Code is not merely to give that right, but in addition to give a right to one appeal from every order directing a complaint.

(3.) In my judgment it is desirable to refer to three cases in which this matter has been dealt with. The first case to which I would refer is the case of Somabhai Valabh Bhai V/s. Aditbhai Parshottam A.I.R. 1924 Bom. 347 That case was one in which a Subordinate Judge decided to make a complaint The language used by the Subordinate Court was language applicable to the old Code, but in fact the first Court decide to make a complaint. On appeal the superior Court, namely, the Sessions Judge, reversed that order and recalled the complaint. Thereupon an appeal was brought to the High Court and the decision of Macleod, C.J., and Shah, J. was to the following effect: From that order in effect directing withdrawal of the complaint the petitioner has filed an appeal. The first question is whether the appeal lies. We are clearly of opinion that no appeal lies under the provisions of the Cod against an order made by the Court to wine the Court making a complaint is subordinate.