MANNI LAL Vs. EMPEROR

JUDGEMENT

(1.) The question that arises in this case is whether the language of the various provisions of the Criminal P. C. justify an inference that an appellate Court when hearing an appeal under Section 476-B has the power to remand the case for further evidence to be taken or itself take further evidence. Before 1923 when the previous Criminal P. C. was in force, there was no appeal provided from an order under Section 476-B, Criminal P.C. The Legislature apparently thought that when there is a question whether prosecution should be ordered or not, the first Court which had examined the entire evidence should be the sole Judge. It is not necessary that there should be a right of appeal in every case, particularly when there is no final order convicting or acquitting the accused but merely a complaint in a case fit for further enquiry. The policy was somewhat changed by the amendment of 1923, while sanction to a complainant has been abolished, a right of appeal has been given. Now the Legislature might think that the appellate Court should have all powers for taking fresh evidence for remanding the case, for ordering a re-trial, etc. or it may consider that as the question is merely one of filing a complaint; in a criminal Court or withdrawing such a complaint, the appellate Court should not possess the widest powers, but its final opinion should be confined to the evidence and materials already on the record. I do not think that either view is necessarily absurd. One has therefore to see whether all the powers have been conferred on the appellate Court.

(2.) There has undoubtedly been a great conflict of opinion in the various High Courts. Some Judges have held that the appellate Court's powers are strictly restricted, and others have said that the powers are wider; but the Judges who have taken the view that the appellate Court has wider powers have felt considerable difficulty in finding the true basis for it and in relying on particular sections of the Code. The shortest out has been adopted by some Courts which have held that an appellate Court has an inherent power to make any order it thinks just and that accordingly it can do anything it thinks fit. It has been held by a Division Bench of the Madras High Court in Ramayya V/s. Emperor , following an earlier case of that Court that the appellate Court has power of remand and also summary dismissal in such cases. A somewhat similar view has been expressed by a Division Bench of the same Court under the old Code in Subbasari V/s. Emperor A.I.R. 1921 Mad. 453. With great respect, I do not think that an appellate Court can invoke the aid of its inherent jurisdiction in ordering a subordinate Court to do something in a case. In the first place, new categories of inherent jurisdiction should not be invented; particularly if prior to 1923no appeal was at all permissible. In the second place, the inherent jurisdiction is generally confined to the proceedings before the appellate Court and does not include an authority to issue orders to the Court below directing it to do something in the case. If such inherent powers were invoked, then the provisions of the Code would become quite unnecessary. Before examining the provisions of Section 476 itself, it may be convenient to consider whether the other sections of the Code at all apply. The order of the learned Sessions Judge is in the following words: I return the case to the learned Magistrate, who will take evidence on this question whether there were two separate Mohammad Ishaqs or they were one and the same, and will then prosecute or refrain from prosecuting on a consideration of this evidence.

(3.) It seems to me that on the merits themselves the order is not correct. A mere finding as to whether there were two separate Mohammad Ishaqs or only one may not be absolutely conclusive, unless the learned Judge intended that if it were established that there were two Mohammad Ishaqs, then there would be some doubt and he would not make the complaint. It seems that the existence of two Mohammad Ishaqs was perhaps admitted by the opposite party. It was the identity of the person which was in question. Now the power to order enquiry is conferred on a Sessions Judge by Section 436, Criminal P.C. That section is limited to particular cases mentioned therein; and therefore the authority conferred by it cannot be exercised when dealing with other cases. I am quite unable to hold that the learned Sessions Judge had any power to order inquiry under this section when he is hearing an appeal under Section 476-B.