V SEEMIAH NAIDU Vs. ABDUL WAHAB SAHIB

JUDGEMENT

(1.) This is a petition to revise the order of the Sub-Divisional Magistrate of Chittoor dismissing the appeal to him from an order of the Stationary Sub-Magistrate of Chittoor whereby the petitioner who was the complainant in a case of assault before that Magistrate was ordered to pay under &. 250 of the Criminal Procedure Code Rs. 100 by way of compensation to the accused as, in his opinion, the complaint was false and vexatious.

(2.) Two points are taken in his petition, viz., (1) that the appellate Magistrate acted without jurisdiction in taking further evidence purporting to act under Section 428 of the Criminal Procedure Code, because, according to the appellant's Advocate, the appeal was not one under Chap. XXXI of the Criminal Procedure Code to which alone Section 428 applies and (2) that the appellate Magistrate acted illegally in omitting to record reasons for taking further evidence as he was required to do under Section 428.

(3.) As to the first objection reliance is placed upon the decision of Mr. Justice Devadoss in Sami Vannia Nainar V/s. Periaswami Naidu in which that learned Judge held that in an appeal under Section 476-B, Criminal Procedure Code, the Appellate Court has no jurisdiction to take additional evidence whether the party objected to the reception of such evidence or not. I do not think that the decision is applicable to this case. The ground of that decision was that an appeal under Section 476-B of the Criminal Procedure Code was not one under Chap. XXXI of that Code. That decision was itself based upon an earlier decision in In Re: Krishna Reddy 5 Ind. Cas. 881 : 33 M. 90 : 7 M.L.T. 128 : 20 M.L.J. 102 : 11 Cr.L.J. 280 to the same effect. The reason of that decision is seen from the terms of Section 476 B itself which says that any person on whose application a Court has refused to make a complaint,, under's 476 or against whom such a complaint has been made may appeal to the Court to which such Court is subordinate. Upon the terms of that section it is clear that not only the right of appeal but the forum to which the appeal should be preferred are clearly prescribed. That section is in other words self-sufficient and any appeal under that section is not one under Chap. XXXI. In this case, however, that is not so. Section 250 (3) says that a complainant or informant who has been ordered by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding Rs. 50 may appeal from those orders as if such complainant or informant had been convicted on a trial held by such Magistrate. Now, it is contended on those words that the appeal is under that section on the analogy of the decision above referred to. But the analogy is not complete because all that Section 250 (3) says is that a complainant against whom an order for compensation is made is, so far as the right to appeal is concerned, put on the same footing as if he had been convicted and sentenced to pay a fine, by that Magistrate. To find out to what Court the appeal is to be filed, we have to resort to the general Chapter on appeals and that is Chap. XXXI, and the section applicable to this case is Section 407. It follows, therefore, that it is incomplete to say that an appeal from an order under Section 250 is an appeal under that section; for, to make the statement complete it must be said that the appeal is by virtue of Secs.250 and 407. I am, therefore, of the opinion that this particular appeal was none-the- less under Chap. XXXI of the Criminal Procedure Code because the right of appeal was generally conferred by an earlier section not within that Chapter. If the appeal was in the terms of Section 428 "under this Chapter", all the powers conferred by that section were immediately attracted to this appeal and the Sub-Divisional Magistrate had ample power to take additional evidence. That disposes of the first contention.