AIYAKANNU PILLAI Vs. EMPEROR

JUDGEMENT

(1.) The question raised in this Order of Reference was considered by a Bench of three Judges in Rahimadulla Sahib V/s. Emperor 31 M. 140; 17 M.L.J. 584. The learned Judges by whom the present Order of Reference was made were desirous, for the reason stated in the Order of Reference, that the question should be further considered.

(2.) I have carefully considered the points taken in the Order of Reference and the judgments of the Bombay High Court in the case In re Lakshmidas Lalji 10 Bom. L.R. 28; 32 B. 184, and I am of the same opinion as I was when the case was first argued before a Full Bench.

(3.) Sub-section (2) of Section 476, Criminal Procedure Code, indicates the procedure which is to be followed when an order under Sub-section (1) has been made. The subsection says "such Magistrate shall thereupon, etc.," that is after the making of an order under Sub-section (1). With all respect to the learned Judges who take a different view I cannot see how Sub- section (2) throws light on the question of the time when the order under Sub-section (1) must be made. The express reference to Section 476 in Section 200 would seem to show that the object of Section 476(2) was to relieve the Magistrate who makes the order under Section 476(1) from the obligation of making a complaint on oath before the Magistrate to whom the case is sent for inquiry or trial. I do not think it follows that because a complaint can be presented at any time subject to the law of limitation, an order under Section 476(1) can be made at any time.