Imam, J.

1. This Bench was constituted to consider the nature of appeals filed under Section 476B, Criminal P. C. where a complaint has been, filed by a Civil Court under Section 476, Criminal P. C; in (other) words, whether such appeals are in the nature of civil appeal or criminal appeals.

2. The District Judge of Shahabad filed a complaint under Section 476, Criminal P. C. against Dhup-Narain Singh under Sections 197, 199 & 471, Penal Code, (for offences) alleged to have been committed by Dhup Narain Singh in the course of Probate Case No. 17 of 1950 (Title Suit No. 4 of 1952) in the Court of the District Judge. An appeal under Section 476B* Criminal P. C. has been filed by him in this Court.

3. The Court of the District Judge is undoubtedly a Civil Court and not a Criminal Court, although the District Judge in this State also exercises the powers of a Sessions Judge. When the District Judge is exercising the powers of a Sessions Judge, he is undoubtedly a Criminal Court. Section 476, Criminal P. C. has given authority to every Civil, Revenue or Criminal Court to make a complaint if it is expedient in the interest of justice, concerning any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c), Criminal P. C. which appears to have been committed in or in relation to a proceeding in that Court. This authority or power has been given expressly by a statutory provision, although it is to be found in the Code of Criminal Procedure. The Code of Criminal Procedure is a statute, and if it contains a provision of the kind to be found in Section 476 of the Code, a Civil, Revenue or Criminal Court is entitled to proceed under it in given circumstances.

When a Court, however, proceeds to act under Section 476 of the Code, it does not lose its character as a Civil, Revenue or Criminal Court, as the case may be, that is to say, a Civil Court acting under Section 476 of the Code does not cease to be a Civil Court, although it is exercising a power given to it under the Code of Civil Procedure. Similarly, a Revenue Court does not lose its character as a Revenue Court merely because it exercises a power conferred by a statute. Whatever may be thought as to the nature of proceedings under Section 476 of the Code, when such proceedings take place in a Civil Court, that Court continues to be a Civil Court and does not become a Criminal Court.

4. An appeal is provided under Section 476B from an order making a complaint or refusing to make a complaint by a Civil, Revenue or Criminal Court under Section 476, and the appeal lies to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3) of the Code, and the Appellate Court after notice to the parties concerned, may either direct withdrawal of the complaint or may itself make the complaint which the Subordinate Court might have made under Section 476.

Section 195, Sub-section (3) states:

"For the purpose of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of Civil Court from whose decrees no appeal ordinarily lie to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate.

Provided that.

(a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

Having regard to this provision, an appeal from the Court of a Munsif would lie to the District Judge, an appeal from the Court of a Subordinate Judge would He to the District Judge or to the High Court, as the case may be, depending upon the valuation of the suit or proceeding in such a Court. An appeal from the Court of a District Judge would lie to the High Court. In such cases an appeal to the District Judge would be to a Civil Court, and to the High Court in its Civil jurisdiction. Looking from the matter at this aspect, prima facie, it might appear that an appeal under Section 476B, Criminal P. C. was in a nature of a civil appeal.

It has, however, to be borne in mind that although a Civil Court which is hearing an appeal under Section 476B, Criminal P. C. does become a Criminal Court, it acts, as a Civil Court, exercising a power conferred upon it by a statute, namely, the Code of Criminal Procedure. The appeal is not under the Civil Procedure Code, as that Code contains no such provision. It is to be further noticed that Section 476B, Criminal P. C. contains no provision as some other statutes, to the effect that the provisions of the Code of Civil Procedure shall apply to an appeal under Section 476B.

As an example reference may be made to Section 299, Indian succession Act which does not contain such a provision. When an appeal lies under a statute, generally the statute does not designate it as a civil appeal or a Criminal Appeal, and I think, where there is no reference in the statute to the Civil Procedure Code or the Criminal Procedure Code and the statute itself is silent as to what procedure is to be followed in the matter of filing admission, hearing and disposal of an appeal, one may have to look at the nature of the proceeding in which the order appealed against was made and the character of the Court which made the order and the Court to which the appeal lay; for instance, in an insolvency proceeding obviously an appeal filed could, in no sense, be regarded as a criminal appeal. It is necessary, therefore, to see what tests one can apply in judging as to whether an appeal under Section 476B, Criminal P. C. from the order of a District Judge to this Court is a criminal appeal or a civil appeal.

In my opinion, one of the tests would be that the appeal is certainly not under any provision of the Code of Civil Procedure but is certainly one under a provision of the Code of Criminal Procedure. If an appeal lies under a provision of the Code of Criminal Procedure, logically speaking it should be termed as a criminal appeal and not a civil appeal for the simple reason that it is an appeal provided by the Code of Criminal Procedure. Another test would be as to what would be the period of limitation applicable to an appeal under Section 476B, Criminal P. C. Article 155, Limitation Act provides a period of 60 days from the date of the sentence or order appealed from when an appeal, is made under the Code of Criminal Procedure, 1898, to a High Court, and under Article 154, 30 days to any other Court. An appeal under Section 476B is certainly one under the Code Of Criminal Procedure, and the provisions of Articles 154 and 155, Limitation Act would apply to such an appeal. Article 156, Limitation Act, on the other hand, provides for 90 days as the time within which to file an appeal under the Code of Civil Procedure, 1908, to a High Court from the date of the decree or order appealed from, and under Article 152, 30 days under the said Code to the Court of a District Judge. It will be noticed that for the purposes of limitation there is a clear difference in the matter of time in which to appeal to the High Court under the provisions of the Code of Civil Procedure from that in which to appeal to the High Court under the Code of Criminal Procedure.

If an appeal under Section 476B, Criminal P. C. be regarded in the nature of a civil appeal, then the provisions of Order 41 and Order 43, Civil P. C. would apply, and one would be forced to the conclusion that the time in which the appeal to the High Court must be 90 days. But this would be contrary to the provisions of the Indian Limitation Act. It seems to me, therefore, that an appeal under Section 476B, Criminal P. C. being an appeal under the said Code, the limitation for filing such an appeal to the High Court must be 60 days and to any other Court, 30 days. That being so, there is, for the purpose of filing an appeal, no distinction so far as limitation is concerned, between an appeal filed under Section 476B, Criminal P. C. and that filed under any other provision of the said Code. If there is no distinction in this respect, then obviously every appeal under the provisions of the Code of Criminal Procedure must be regarded in the nature of a criminal appeal,

5. One may ask what is the justification for the view that in an appeal under Section 476B, Criminal P. C. to the District Judge or the High Court from a Court exercising civil jurisdiction, the appeal Court must exercise jurisdiction according to the provisions of the Code of Civil Procedure relating to appeals. There is no express provision under Section 476B of the Code of Criminal Procedure to the effect that such an appeal shall be governed by the provisions of the Code of Civil Procedure. If, therefore, one takes the view that such an appeal must be governed by the provisions of the Code of Civil Procedure, then one holds the view without the authority of any express provision of law in support of it. Surely, the criterion cannot be that because the Court which passed an order under Section 476, Criminal P. C. was a civil Court, therefore an appeal under Section 476B must be governed by the provisions of the Code of Civil Procedure. The Court which passed the order under Section 473, Criminal P. C. although a civil Court, acted under a provision of the Code of Criminal Procedure and not under any provision of the Code of Civil Procedure. Similarly, an appeal under Section 47GB, Criminal P. C. (Sic) is an appeal under Code of Criminal Procedure and not under the Code of Civil Procedure. My own view is that in the absence oil any express provision in Section 476B, Criminal P. O., the provision of the Code of Civil Procedure relating to appeals will not apply. It would be more logical to take the view that an appeal under the Code of Criminal Procedure should be governed as far as applicable, by the provisions of the Code of Criminal Procedure relating to appeals. Certainly such a view is not contrary to any provision in Section 476B, Criminal P. C. Having regard to the view I take for the purposes of filing, admission and disposal of an appeal under Section 476B, Criminal P. C. the provisions of Sections 419, 421, 422 and 423 of the said Code are not so warded as to entirely prevent them being applicable to an appeal under Section 476B.

6. In -- Deonandan v. Ramiakan AIR 1948 Pat. 225 (A) it was held by a Full Bench of this Court that an application in revision against an appellate order of the District Judge under Section 47GB, Criminal P. C., 1898, is governed not by Section 430 of the said Code but by Section 115, Civil P. C., 1908. The opinion which I have expressed above is not inconsistent in any way, with the decision of the Full Bench in --Deonandans case (A), as it has been expressed in that decision that Section 439 of the Code of Criminal Procedure must be read with Section 430 of the said Code, and the revisional jurisdiction which the High Court exercises under Section 429 of the said Code is with reference to criminal Courts inferior to the High Court. Merely because a civil court is exercising powers under Section 476 or Section 47GB, Criminal P. C., it does not make that Court a criminal Court. Consequently, the power of revision which the High Court has over such a Court is not under Section 439, Criminal P. C. but under "Section 115, Civil P. C.

7. Consequently, I would decide the point for which this Bench was constituted that an appeal under Section 478B, Criminal P. C. from an order passed under Section 476 of the said Code by a civil court must be deemed to be a criminal appeal, and the provisions of the Cede of Criminal Procedure, so far as they are applicable relating to appeals under the said Code, apply to such an appeal.

8. The appeal filed under Section 476B, Criminal P. C. should now be disposed of in due course.

Rai, J.

9. I agree.

Choudhary, J.

10. I agree.