Bucknill, J.This was a matter referred to a Bench by Macpherson, J., on the 2nd September last; it had come before him when sitting as vacation Judge as a proceeding which purported to be an appeal from a decision of the District Judge of Gaya, dated 10th July last. The nature of the matter may be thus summarized.

2. The respondents to the proceeding now before us brought in 1923, a money suit against the last petitioner for a share in certain bhaoli produce rent of some 53 bighas of bakasht lands: the 1st petitioner (appellant here) pleaded payment and in support of this defence referred to certain receipts and papers of account which were produced on his behalf and which were either in part or in whole exhibited in evidence by the Petitioners 2 and 3.

3. The Munsif (2nd Court) of Gaya who tried the suit gave judgment in the respondents favour; for he was (to use his own words) "not satisfied that the signatures on the receipts and the Bujhaotas were the genuine signatures of these persons" (whose signatures they were alleged to be): the decree was dated 21st July 1924.

4. The 1st petitioner appealed; the appeal was beard on 5th February 1925 and was dismissed by the Additional Sessions Judge and Subordinate Judge 3rd Court Gaya, who, agreeing with the Munsif that the receipts and bujhaotas were not genuine, dismissed the appeal.

5. Almost immediately after this appeal had been dismissed, the respondents, on 16th February 1925 applied u/s 476 of the Or. P.C. to the Munsif, 2nd Court of Gaya (who was however not the same individual as that Munsif who had tried the suit in 1924) requesting him to hear the parties and to make a complaint under the provisions of Section 476, Cr. P.C., against the petitioners. They suggested that the petitioners ought to be prosecuted under sections of the Indian Penal Code such as Section 467 (forgery of a receipt) and Section 471 (using as genuine a forged document). The Munsif however after hearing the parties, refused on 23rd April 1925 to make any complaint as requested. The Munsif seems to have thought that as there was no direct finding of forgery by either the trial or appellate Courts and as neither of those Courts had thought fit to take any step proprio motu under the provisions of Section 476, he himself should not think it desirable to take any action.

6. From this decision the respondents, exercising their right, u/s 476-B, Criminal P.C., appealed to the District Judge of Gaya who on 10th July 1925 took a different view to that expressed by the Munsif; he considered (to use his own words) that "A good case for prosecution had been made out and that the prosecution should be sanctioned." He added, "I therefore institute a complaint against Ranjit Singh, Ajodhya Singh and Ragho Singh (the appellants here) for their prosecution under Sections 471 and 193, I.P.C., or any other section or sections that may apply and forward it to the District Magistrate." This action was as a matter of procedure quite properly taken in accordance with Section 476-B, Criminal P.C. From this decision the appellants have purported to appeal to this Court. It was entered as Criminal Appeal No. 133 of 1925. It was admitted as an appeal by Jwala Prasad and Macpherson, JJ., on 24th July 1925. It came, as I have already said before Macpherson, J., sitting as vacation Judge; the question was raised before him by the Crown as to whether in a case such as this an appeal lies to this Court and as there appeared to be some doubt as to this point and some possible conflict of decisions, the learned Judge referred the matter to a Bench.

7. It may at once be stated that applications to this Court u/s 476-B, Criminal P.C., have at times been made both as appeals and in Revisional jurisdiction; and in other High Courts also. For example in this Court in Gajaram Marwari v. The King-Emperor Criminal Appeal No. 22 of 1925 and Bhuki Sao and Ramdhani Sao v. King Emperor Criminal Appeal No. 37 of 1925 (which were heard together) the general features of the position were somewhat parallel to those displayed in the matter now under consideration: one Mahabir Sao applied to a Magistrate who had under the provisions of Section 203, Criminal P.C., dismissed a complaint made by another individual asking that that complainant and two others should be ordered by the Magistrate to be prosecuted by virtue of the provisions of Section 476, Criminal P.C. The Magistrate refused to make a complaint. Mahabir thereupon appealed to the Sessions Judge who differed from the Magistrate and himself made the complaint requested u/s 476-B, Criminal P.C. The 3 persons thus ordered to be prosecuted thereupon appealed to this Court; no question was ever raised at any stage of the proceedings as to there being no right or possibility of an appeal. The cases were admitted, as appeals by Kulwant Sahay, J., and myself on 4th February 1925 and were heard as appeals on 16th April 1925 by Macpherson, J., and myself: the appeal in the case of one appellant was allowed and in the case of the other two rejected. I need not refer, I think, to cases which have come up as applications in revision; for it is common ground that such have occurred.

8. In Criminal Appeal No. 115 of 1925 Macpherson, J., apparently decided a case similar in general features to the present one as an appeal; the Magistrate in that case had refused to make a complaint. On appeal u/s 476-B the Sessions Judge differed from the Magistrate and himself made the complaint, the person ordered to be prosecuted appealed to this Court, the appeal came before Macpherson, J., sitting as Vacation Judge and the point that no appeal lay was specially taken. Macpherson, J., then expressed the opinion that sitting singly he ought to follow the expression of opinion given by Mullick, J., in Faujdar Rai v. King Emperor Criminal Revn. No. 5 of 1926 and hold that an appeal did lie; but whilst expressing this view, he decided to reject the application on its merits whether it was rightly to be regarded as an appeal or as an application in revisional jurisdiction. And, in the present case, as has already been observed, the same learned Judge at a later date, (i.e., on 2nd September 1925, I the same point being more specially perhaps raised by the Crown, referred the matter to a Bench. In the Lahore High Court in the case of Mohammad Idris v. The Crown & another AIR 1926 Lah 322 the question as to whether an appeal lies from a decision u/s 476 B. Criminal P.C. has been discussed and decided by Martineau and Zafar Ali, JJ. In that case their Lordships held that no appeal lies u/s 47 8-B. of the Criminal P.C. to the High Court from an appellate order of a District Judge making a complaint which the Sub-Judge might himself have made but refused to make. This was a reference to a Bench made by Scott-Smith, J., who was doubtful as to whether an appeal lay under such circumstances. (sic)

9. This case is of course directly in point here; but it has been suggested to us that the decision is not legally correct. The judgment is very short and was given on October 24th, 1924. It simply reads thus: "This question referred to us in this appeal and in Appeals Nos. 233 and 286 of 1924 is whether an appeal lies to this Court from an appellate order of the District Judge making a complaint which the Subordinate Judge might himself have made u/s 476 of the Criminal Procedure Code. Section 476-B of the Code gives a right of appeal only when a Court has made or refused to make a complaint u/s 476 or Section 476-A and neither of those sections relates to a complaint made by a Court on appeal from an order of a Subordinate Court refusing to make a complaint. We therefore answer the question referred to us in the negative. The appeals will be laid before the referring Judge for disposal."

10. In the Calcutta High Court a case similar in features to the present one has been dealt with in Revisional Jurisdiction and the decision of the Sessions Judge reversed Kalisadhan Addya Vs. Nani Lal Hazra, , but the question of the possibility of an appeal did not there arise.

11. It is, I think, necessary now here to explain the argument which has been well placed before us upon this question by the learned Counsel who has appeared for the appellants. He draws a distinction in different sets of circumstances between the possibility of an appeal lying from a decision given by an appellate Court under the provisions of Section 476-B. He argues that there may be different positions as a result of a proceeding u/s 476-B in appeal. The first position is when the original tribunal has made a complaint (i.e., ordered a prosecution u/s 476) the person ordered to be prosecuted has appealed u/s 476-B and the appellate Court has allowed the appeal. In such a case he admits that there is no further appeal though revision by the High Court may be conceivable. This position has been the subject of a decision in the Bombay High Court in the case of a criminal appeal: Somabhai Valabhbhai v. Aditbhai Parshotam AIR 1921 Bom 347. In that case a Subordinate Judge had on the application of one Somabhar u/s 476, Criminal P.C., issued a complaint and directed the prosecution of certain persons; they appealed to a Sessions Judge who allowed the appeal. Somabhar appealed to the High Court. Macleod, C.J., and Shah, J., held that there was no appeal. In their judgment their Lordships state "We are clearly of opinion that no appeal lies under the provisions of the Code against an order made by the Court to which the Court making a complaint is subordinate." It will be observed that the point raised before us as disclosed by the 4th position (vide infra) was not before the Bombay Court nor decided by it. The 2nd position is when the original tribunal has refused to take action u/s 476; the applicant has appealed u/s 476-B the appellate Court has dismissed the appeal; he thinks that in this case too there is no further appeal, though again revision by the High Court is conceivable. The 3rd position is when the original tribunal has made a complaint; the person ordered to be prosecuted has appealed, the appellate Court has dismissed the appeal; he thinks that in this case too there is no further appeal; though once more revision by the High Court is possible. The 4th and, of course, last possible position, is that existing in the present case, the original tribunal has refused to make a complaint; the applicant has appealed and the appellate Court has itself made a complaint. It is argued that in such case the party ordered to be prosecuted has a right of appeal; and revision also might be possible; except that if an appeal lies revisional jurisdiction would not, it is imagined, be exercised.

12. This is the position upon which the Lahore High Court has given the decision quoted above; but it seems that a contrary view has been expressed in this Court by Mullick, J., in Faujdar Rai v. King-Emperor Criminal Revn. No. 5 of 1926.

13. In that case the circumstances were as follows:--An application was made u/s 476, Criminal P.C., to a Sub-Deputy Collector to make a complaint against one Faujdar Rai directing his prosecution for the offences of using a forged document and giving false evidence. The Sub-Deputy Collector after enquiry refused to take any action. The complainant appealed to the Collector u/s 476-B, Criminal P.C. The Collector disagreed with the Sub-Deputy Collectors view and himself made a complaint. Faujdar Rai thereupon appealed to the Divisional Commissioner who held on 30th March 1925, that no appeal lay. From the Commissioners decision Faujdar Rai applied to this Court in revision; not against the Commissioners decision that no appeal lay but against the Collectors complaint. The first point taken was that the High Court had no jurisdiction to interfere with the Collectors order but Mullick, J., rejected this contention: his Lordship then dealt with the matter in revision and allowed Faujdars application. But, so far as is here material, the most important matter in the judgment lies in the following observations; the learned Judge writes;

There is a third point raised, namely that the learned Commissioner was wrong in declining to hear the appeal preferred by the petitioner. I think the contention must be accepted. Section 476-B of Criminal P.C. appears to contemplate that if an appellate Court sets aside the order of the Original Court, the party prejudicially affected has a right of appeal to the Court to which appeals from that appellate Court ordinarily lie. In this case therefore the Commissioner had jurisdiction to hear the appeal from the order of the Collector and to set it aside if necessary, and I am asked to direct that the criminal prosecution should not proceed till the Commissioner has disposed of the appeal. In my opinion it is not necessary to make any such order as I think I have jurisdiction to interfere under Sections 115, Criminal P.C., and 107 of the Government of India Act.

14. If this view is correct the same reasoning would apply in the present case and the person against whom the appellate Court (i.e., the District Judge) has u/s 476-B, made a complaint could appeal to the High Court. It is important in endeavouring to come to a correct decision upon this question to examine carefully the provisions of Sections 476, 476-A and 476-B in order to ascertain what is their proper construction. I may here say that as result of such investigation as I have been able to make I have not been able to ascertain that in the Report of the Joint Committee on the Bill to make in the Criminal Procedure Code the amendments now comprised in Section 476-B or in the debates when the Bill was in the Legislature the question now arising was in any way envisaged; and indeed it was hardly likely that it should have been, in view of its somewhat involved nature.

15. Section 476 contemplates that a Court may either of its own motion or on application make a complaint. Section 476-A contemplates that an appellate Court may make a complaint if its subordinate Court has taken no action u/s 476 suo motu or has not rejected any application made to it to do so. Section 476-B gives a right of appeal to an appellate Court under certain circumstances.

(a) Where the appellate Courts subordinate Court has refused on application made to it u/s 476 to make a complaint.

(b) where an appellate Court has refused on application made to it u/s 476-A to make a complaint;

(c) where the appellate Courts subordinate Court has made a complaint either suo motu or on application, i.e., included in the words "or against whom such a complaint has been made";

(d) where an appellate Court has itself made a complaint.

16. In following out the effect of this it will be simplest to illustrate by reference to Munsif, District Judge and High Court as instances of original, appellate and superior appellate Courts

17. It would seem clear that in case

(a) where a Munsif has refused an application made to him u/s 476 to make a complaint an appeal lies to the District Judge by the applicant, the position does not fall within 476-A but within 476-B. At the appeal no complaint has yet been made; the District Judge may take the same view as the Munsif and dismiss the appeal. In such case there is no sort of prescribed procedure for an appeal to the High Court. On the other hand the District Judge may disagree with the Munsif and himself make a complaint and the complaint then is amenable to the provisions of Section 476; that is to say, it is, under 8. 476-B, subject to appeal to the High Court; for Section 476-B, reads: "Any person against whom a complaint u/s 476 has been made by any Court."

18. In the case mentioned the District Judge is making the complaint u/s 476, the District Judges Court is subordinate to the High Court within the meaning of Section 195, Sub-section 3, Criminal P.C., and therefore the appeal lies to the High Court. As to (b) the Munsif has done nothing and has been asked to do nothing. The District Judge has either suo motu or on application made a complaint. All this is u/s 476-A, The complaint is amenable to the provisions of Section 476; clearly the complaint can under the provisions of Section 476-B be the subject of appeal to the High Court from the District Judge. For the only complaint is by the District Judge.

19. As to (c) the Munsif has suo motu or on application made a complaint; clearly there is an appeal to the District Judge u/s 476-B. The District Judge may uphold the Munsifs view; but in dismissing the appeal he (the District Judge) makes no complaint; and it is only against the complaint that so far as (c) is concerned a right of appeal is given. But the District; Judge may direct the withdrawal of the complaint; but even so the District Judge makes no complaint; and it will be once more observed that it is only when the District Judge makes the complaint that the provisions of Section 476 apply to it.

20. Lastly as to (d): the Munsif has done nothing and has never been asked to do anything u/s 476. But the District Judge has made a complaint either suo motu or on application u/s 476-A; to this complaint the provisions of Section 476 are applicable; and u/s 476-B such a complaint can be the subject of appeal; but to what Court Obviously only to the High Court because it is from the District Judge.

21. In my opinion, therefore, upon a proper construction of Sections 476, 476-A and 476-B and still retaining the illustration of the three ascending Courts as Munsif, District Judge and High Court there would lie an appeal from the District Judge to the High Court. (a) Where the Munsif has refused on application made to him u/s 476 to make a complaint, where there has been an appeal to the District Judge and where the District Judge, disagreeing with the Munsif, has made a complaint, (b) where u/s 476-A (the Munsif has taken no action suo motu and has not been asked to take any action) the District Judge has (a) on application to him made a complaint, (b) on application to him has refused to make a complaint.

22. I can see no possibility of an appeal lying under any other of the positions referred to.

23. The same reasoning would of course apply to any other chain of three Courts (contemplated by Section 476) of ascending jurisdiction. Being therefore of opinion that in the present case an appeal does lie, one must therefore examine the circumstances under which the District Judge was induced to make the complaint.

24. I think it is desirable to remark, as is pointed out by Macleod, C.J., and Shah, J., in the case decided in the Bombay High Court, that the question whether a complaint should be made u/s 476, Criminal P.C., is almost invariably a matter of discretion; and the High Court is under those circumstances always loath to interfere except in extraordinary cases.

25. It is necessary therefore to look first at the original judgment given by the Munsif in the suit which he decided in July 1924. The action was brought by the plaintiff for recovery of his share in the produce of certain bakasht lands in possession of the 1st petitioner. The only substantial defence which appears to have been put forward was that the defendant had in fact paid what was due; there were other questions raised, one of which was that part of the lands were raiyati lands and part bakasht and that the plaintiff could not Sue in one and the same suit for rent for both kinds of lands. This point is only of importance because in support of the plea of payment the defendant produced certain documents of account (bujhaotas) in respect of the alleged payment of what was due with regard to the bakasht lands and certain receipts in respect of the raiyati lands. The Munsif undoubtedly held that these bujhaotas and receipts were not genuine. It would not be, I think, right for me to enter in detail upon the reasons why the Munsif came to this opinion (in case it might be thought that I was expressing any view of my own as to the authenticity of these documents), but I may state that, apart from observing that, so far as he could judge from the caligraphy, be was not satisfied that the signatures purporting to have been made on behalf of the plaintiff were genuine, he gave several other grounds in support of that view. For instance with regard to the bujhaotas he suggested that they showed a set off in the defendants favour, in respect of the alleged share of a third party for the inclusion of which there appeared to be no sort of justification; again he thought that under the circumstances, which disclosed litigation still existing between the parties with regard to the lands in question, it was highly improbable that clear receipts and bujhaotas would have been, as the defendant alleged, granted to him by the plaintiffs, or indeed that the defendant would under such circumstances have in fact paid what was alleged to have been due to the plaintiffs. He concludes his summing up of the case in the following words: "Considering all this I disbelieve the defendants plea of payment and hold the bujhaotas and receipt filed by him not to be genuine." The defendant appealed and it does not appear that the Munsif was then asked or thought fit to take any action under the provisions of Section 476 of the Criminal P.C. The appeal was decided by the Additional Sessions Judge and Subordinate Judge of the 3rd Court of Gaya on the 5th February. The appeal was dismissed. The learned Judge, who again points out that, in view of the disputes which were going on between the parties, it was highly unlikely that the plaintiffs would grant receipts which would have imperilled their position in the other litigation which was principally concerned with a partition suit and who further draws attention to certain intrinsic improbabilities in connexion with the genuineness of the bujhaotas and receipts, agreed with the Munsif that neither the receipts nor the bujhaotas were genuine. As I have mentioned before, very shortly after the appeal had been concluded, application was made by the plaintiffs to the Munsif of the Court before which the original suit had been tried, asking that action should be taken under the provisions of Section 476, Criminal P.C. The Munsif before whom this application came was not the same individual as the Munsif who had tried the case. He seems to have thought in his decision, given on the 23rd April last refusing to take action, that no prima facie case of forgery or the like had been made out. He observes that neither the trial nor appellate Court had specifically found that the documents were forged and comments upon the fact that neither of those Courts had apparently thought fit of their own motion to direct a prosecution. I need not point out that such reasoning is not exhaustive; for if it was always to be left solely to the self-acting motion of the Courts concerned to institute a complaint, much of Section 476 would be surplus age; and indeed, it is well known that it is frequently only upon application made to it that a Court either u/s 476 or 476-A of the Criminal P.C. takes action. The Munsif proceeds to state that although the Courts expressed the view that the documents were not genuine it does not follow they were forged; it is again to my mind obvious that the question whether the documents were forged or not by or on behalf of the petitioners, or whether they were used in any way by or on behalf of them (they the petitioners), knowing that they were forged, are matters which are to be contemplated as the subject of the prosecution which has now eventually been ordered. The Munsif, however, remarks that the mere fact that neither the trial nor appellate Court took any action of their own motion u/s 476 Criminal P.C., proves that the matter was not considered sufficiently serious to justify a prosecution; I have already pointed out that this is fallacious reasoning. The Munsif lastly observes that the fact that the plaintiffs asked the Court to issue a complaint shows malice and grudge; but it is hardly to be understood necessarily that such is the case; or otherwise it would be difficult to envisage an instance where any private individual could successfully make an application under the provisions either of Section 476 or 476-A of Criminal P.C. I do not therefore think that the reasoning upon which the Munsif bases his refusal to make a complaint can be regarded as sound.

26. The applicants appealed to the District Judge of Gaya, and on the 10th July last the learned Judge differed from the Munsif and instituted a complaint. He points out that both the trial and the appellate Courts had clearly found that the receipts and bujhaotas were not genuine, and he observes that the conclusions at which those Courts had arrived appeared to him to be based upon some good grounds: he also refers to some of those grounds. To my mind it is extremely difficult to see how it is possible for this Court to interfere with the decision to which the District Judge has come, and I may say, indeed, that had I been in the position of the Munsif before whom the application was made I have little doubt but that I should have adopted the view that a complaint ought to have been instituted.

27. The learned Counsel, who has appeared for the appellants here has urged against the order of the District Judge instituting a complaint against his clients a variety of circumstances upon which ha bases an argument that the reasons which were given by the trial and appellate Courts for thinking that the receipts and bujhaotas were not genuine were mistaken. He points also to the fact that a second appeal the against appellate decree of the Subordinate Judge preferred to this Court has been admitted. It is true that in their application before the Munsif, asking him to institute a complaint, reference is made to the fact that the Government Examiner of documents had reported upon them in their (the applicants) favour and it would seem that the opinion of the expert examiner was before the Munsif when the application was made to him. The Munsif however does not pay much attention to this report as he rightly points out that the expert has not yet been cross-examined. The value of the experts opinion however and the other matters which have been referred to by the learned Counsel for the appellants here are matters which it seems to me can only properly be gone into during the course of the prosecution proceedings which have been directed. To my mind there was no undue delay in the application to the Munsif. It is impossible for this Court to hold that the District Judge of Gaya has wrongly or unreasonably exercised his discretion. Two Courts have rightly or wrongly, held that the documents in question are not genuine and, under those circumstances, if the District Judge thinks that there is a case which ought to form the subject-matter of a prosecution it is not in my opinion an occasion upon which this Court should, unless extraordinary circumstances were visible which do not appear here, interfere with what has been done.

28. Under those circumstances, in my view, the appeal should be dismissed.

Adami, J.

29. I agree.