MAHENDRA NATH DAS Vs. EMPEROR

JUDGEMENT

(1.) This rule has been obtained for setting aside an order passed by the Magistrate committing the accused to the Sessions to take their trial for various offences mentioned in the order. The Magistrate took cognizance of the ease of a complaint by the Munsiff of Contain under Section 476, Criminal P.C. It appears that on the application of the opposite party the Munsiff made an order under Section 476, Criminal P.C. Against that order an appeal was taken by the petitioner to the District Judge under Section 476-B and the learned Judge by his order dated 28 May 1928, held that the order made by the Munsif under Section 476 was otherwise good except that it was vague inasmuch as it cantained a few sections of the Penal Code and "any other section of that Code found applicable." He accordingly sent the case back to the Munsif and directed him to specify all the sections of the Indian Penal Code in his complaint under Section 476, Criminal P. C, The Munsif accordingly made a complaint specifying the sections of the Indian Penal Code. No objection was taken to the legality of the proceedings before the trial Magistrate but it is complained before us that the order of the District Judge remanding the case to the Munsif and asking him to make a complaint under Section 476 is bad in law and without jurisdiction and, therefore, the entire proceedings leading to the commitment of the accused must be set aside.

(2.) In the circumstances of this case I am of opinion that this contention ought not to prevail. The order of the District Judge passed under Section 476-B has now become final. No objection was taken against that order under Section 115, Civil P.C., or any other law. This objection moreover was not taken before the trial Court on the ground that the complaint upon which the case was started was not validly made before it. The learned Counsel appearing for the petitioners has referred us to two decisions of this Court in which it has been held that under Section 476-B the appellate Court has no jurisdiction to remand a case but should make the complaint itself. These cases were decided upon different sets of facts. In these cases the original Court refused to make the complaint. There was an appeal and the appellate Court was of opinion that the complaint should have been made. It was held that it was the duty of the appellate Court to make the complaint and not to direct the trial Court to do it, in view of the wording of Section 476-B. Moreover those cases were decided by Civil Benches of this Court under the Civil Procedure Code. In Hamid Ali V/s. Madhu Sudan Das , the learned Judges held that the appellate Court should have itself made the complaint; but the learned Judges composing the Benches differed in their opinion as to-the procedure to be followed by the appellate Court in dealing with an appeal under Section 476-B, Criminal P.C. Chotzner, J., being of opinion that it should be governed by Section 424, Criminal P.C. , and Duval, J., holding that it should be governed by Order 41, Civil P.C. If the latter view is correct and it seems to me, it is there is no reason why the District Judge should have no power to remand the case to the lower Court if he acts in accordance with the rules contained in Order 41, Civil P.C. In the present case the District Judge did not overrule the Munsif and take upon himself the responsibility of making a complaint against the accused. He affirmed the order of the Munsif and simply pointed out to him that the order passed by him should be properly worded. In my opinion the order passed by the District Judge in this case did not come within the scope of the decisions referred to. Even if it did, I think in the circumstances of this case that order cannot be challenged at this stage.

(3.) Under Section 215, Criminal P. C, we are entitled to quash the commitment only on point of law. But it has been argued on behalf of the petitioners that the District Judge has no jurisdiction to remand! the case under Section 476-B to the Munsiff and therefore the entire subsequent proceedings are illegal and should be set aside. As I have pointed out the order of the District Judge was not illegal and did not contravene the provisions of Section 476-B, and if it did, it was not an order without jurisdiction. In Manir Ahmed V/s. Jogesh Chandra , it has been held that the appellate Court has no jurisdiction to remand a case to the Court of first instance to file a complaint. The words, "no jurisdiction" were used there in a wide sense to include an act against the law. There was no absence of jurisdiction but at the most an illegal exercise of jurisdiction. The petitioners have lost their remedy (if they had any) now, not having taken any action against the order of the District Judge passed under Section 476-B. They should not now be allowed to challenge that order which has become final between the parties, in collateral proceedings.