Authored By : Lancelot Sanderson, Panton

Lancelot Sanderson, C.J.

1. This is a Rule obtained on behalf of Chandra Kumar Sen, onthe 23rd of April 1925, calling upon the District Magistrate and the oppositeparty to show cause why the order complained of should not be set aside, orsuch other order passed in the matter as to this Court might seem fit andproper.

2. The order complained of was made by the learned DistrictJudge of Chittagong, on the 31st of January 1925, whereby the learned Judgedirected that criminal proceedings should be instituted against Chandra KumarSen and Bijoy Singh Hazari for offences under Sections 209 and 466 of theIndian Penal Code, and for abetment of these offences.

3. This Rule deals with the case of Chandra Kumar Sen only.I think it is necessary to mention certain dates. It appears that anapplication was made to the learned Subordinate Judge for filing a complaintagainst the petitioner Chandra Kumar Sen. That application was disposed of onthe 1st of October 1923. By that time the amendment of the Criminal ProcedureCode, created by the Act of 1923, had come into force, and the learned SubordinateJudge declined to make a complaint under Section 476 of the Code of CriminalProcedure as amended.

4. There was an appeal to the District Judge by thecomplainant. That was filed on the 7th of August 1924. It was not disposed ofuntil the 31st of January 1925, by the learned District Judge, when, as I havealready stated, the appeal was allowed, and the learned Judge decided thatcriminal proceedings should be instituted against Chandra Kumar Sen for theoffences which I have already mentioned.

5. The point upon which the learned Advocate, who appearedfor the petitioner, relied was that the appeal, to the learned Judge was out oftime, and the learned Judge had no jurisdiction to entertain the appeal and tomake the order. This point was taken before the learned Judge apparently, forhe said as follows: "It is urged in his case" (that is the case ofChandra Kumar Sen) "that the appeal is barred by time as the SubordinateJudge passed orders, on the 1st of October 1923, that he would not proceedagainst respondents 2 and 3. I do not think that I am bound by any rule oflimitation in a case of this kind. When an offence in connection with theadministration of civil justice comes to the notice of the District Judge, itis open to him to lodge a complaint in the Criminal Courts although asubordinate Civil Court may not have thought it necessary to take"action". The learned Judge then proceeded to say that the case wasof such gravity that he would be failing in his duty if he did not institute acomplaints

6. With much respect to the learned Judge I am of opinionthat the provisions of the material sections do not support the conclusion atwhich he arrived.

7. Section 476 of the Code of Criminal Procedure . dealswith the procedure which is to be adopted in cases referred to in Section 195,Sub-section (a) Clause (b) or Clause (c), by a Court, with regard to offenceswhich appear to have been committed in or in relation to a proceeding in thatCourt; and Section 476A confers certain powers upon a Superior Court, where theSubordinate Court has omitted to take action. It is desirable to refer to theterms of the section, which are as follows:

476A. "Superior Court may complain where SubordinateCourt has" omitted to do so.---The power conferred on Civil, Revenue andCriminal "Courts by Section 476, Sub-section (1), may be exercised, inrespect of any "offence referred to therein and alleged to have beencommitted in or in relation to any proceeding in any such Court, by the Courtto which 41 such former Court is subordinate within the meaning of Section 195,Sub-section (3), in any case in which such former Court has neither made acomplaint under Section 476 in respect of such offence, nor rejected andapplication for the making of such complaint; and, where the Superior Courtmakes such complaint, the provisions of Section 476 shall applyaccordingly."

8. In my judgment that section does not apply to this case,because there was an application made to the learned Subordinate Judge, and thelearned Subordinate Judge rejected the application for the making of thecomplaint.

9. The next Section 476B gives certain rights of appeal notonly to the person against whom a complaint has been directed, but also to theperson whose application for a complaint has been rejected. The words of thesection are as follows:

476-B. "Appeals.---Any person on whose application anyCivil, Revenue or Criminal Court has refused to make a complaint under Section476 or Section 476A, or against whom such a complaint has been made, may appealto the Court to which such former Court is subordinate within the meaning ofSection 195, Sub-section (3), and the Superior Court may thereupon, afternotice to the parties concerned, direct the withdrawal of the complaint or, asthe case may he, itself make the complaint which the Subordinate Court mighthave made under Section 476, and if it makes such complaint, the provisions ofthat section shall apply accordingly.

10. Therefore, it appears to me that the scheme of thesections is that, if the Subordinate Court has neither made a complaint underSection 476 nor rejected an application for the making of a complaint, then theSuperior Court may take action and make a complaint. But where, as in thiscase, the Subordinate Court has rejected the application for the making of suchcomplaint, then the procedure, which is contemplated by the Code, is by way ofan appeal to the Superior Court.

11. This matter came before the learned District Judge byway of appeal, and, in view of the abovementioned sections, the learnedDistrict Judge, in my judgment, should have considered whether the appeal wasfiled within the time specified.

12. The article in the Limitation Act which applies to thismatter is Article 154, and the material section of the Act is Section 3, whichprovides that "subject to" the provisions contained in Sections 4 to25 (inclusive), every suit instituted, appeal preferred, and application made,after the period of limitation prescribed therefore by the first schedule., shallbe dismissed, although limitation has not been set up as a defence".

13. Under Article 154 the period of limitation for an"appeal under the Code of Criminal Procedure, 1898 to any Court other thana High Court" is "thirty days", and the time from which the periodbegins to-run is the date of the sentence or order appealed "from ".

14. It is, therefore, clear that, as the order appealed fromwas made on the 1st of October 1923, and the appeal was not filed till the 7thof August 1924, the appeal was out of time.

15. This Rule, therefore, must be made absolute, and theorder of the learned District Judge of the 31st January 1925, directingcriminal proceedings to be instituted against Chandra Kumar Sen, must be setaside.

16. No order need be made as regards the appeal (No. 210 of1925) in connection with the same matter.

Panton, J.

17. I agree.

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Chandra Kumar Sen vs.Mathuria Debya (28.05.1925 - CALHC)