JUDGMENT 1. This is a rule calling upon the Sessions Judge of Cuttack, and one Gopal Barik to show cause why the order of the Sessions Judge, dated the 19th March 1906, setting aside an order for the prosecution of the said Gopal Barik under sec. 211, I. P. C, passed by the Sub-divisional Magistrate of Jajpur should not be set aside and why such other order should not be passed by this Court as to it might seem proper. Gopal Barik is a boy of 12 years of age and he complained to the Police that the original accused Pann Purl had snatched an ornament from his person. The Police, thereupon, submitted a report in B Form which means that the complaint was false. 2. On the 24th November last witnesses were examined and the conclusion arrived at is given in these words: "The witnesses proved the charge. The accused denied it and adduced evidence of ill-feeling. There is difference between the Modhupur Raj and the raiyats of Shukdebpur and that is a well-known fact. The accused is one of the leading members of the raiyats of Shukdebpur and the independent witnesses are more or less interested in the Modhupur Raj. The B Form, true, submitted. I think it would be desirable to hold judicial enquiry into this case or order A Form." The judicial enquiry was held on the 18th December 1905. Seven witnesses were examined by the prosecution and the Court called three witnesses. We have gone through the record of the evidence and we have no doubt that, subject to what we shall say presently, the witnesses for the prosecution gave primd facie evidence in support of the charge. But the Sub-divisional Magistrate was of opinion that he could not believe the witnesses because of the existence of a dispute between the Modhupur Raj aud his raiyats and because the accused was one of the leading raiyats. The result of the judicial enquiry was thus the same as that of the first enquiry, the same bias acting on the mind of the presiding officer. 3. No processes were issued against the accused Pann Purl and the Sub-divisional Magistrate directed the prosecution of Gopal Barik declaring his complaint to be maliciously false. The result of the judicial enquiry was thus the same as that of the first enquiry, the same bias acting on the mind of the presiding officer. 3. No processes were issued against the accused Pann Purl and the Sub-divisional Magistrate directed the prosecution of Gopal Barik declaring his complaint to be maliciously false. Gopal Barik moved the Sessions Judge of Cuttack and the learned Sessions Judge came to the conclusion that there was no a priord improbability in the story for the prosecution and that there was as much reason for believing the witnesses for prosecution on account of the dispute between the zemindars on the one side and the raiyats on the other side as there was reason for disbelieving them; and he therefore directed that the order under sec. 476, Cr. P. C, passed by the Sub divisional Magistrate of Jajpur should be set aside. 4. The Deputy Legal Remembrancer moved this Court against the order of the Sessions Judge and we issued the rule indicated above. 5. It is conceded on all hands that the order of the Sessions Judge cannot stand. He had no jurisdiction to revise the order of the Magistrate passed under sec. 476. It is only this Court which has power to revise the order, either under sec. 439 of the Code or under its general powers of superintendence. In his explanation the learned Sessions Judge has also stated that be made a mistake, and we accordingly set aside the order by which he directed the order of the Sub-divisional Magistrate of Jajpur to be set aside. 6. But the case Is now before us and Mr. Jackson on behalf of the accused Gopal Barik has asked us to revise the order of the Sub-divisional Magistrate of Jajpur under sec. 439 of the Code. This we have every power to do. We are nor disposed to follow the decision of the Madras High Court [Eranholi Athan v. King Emperor I. L. R. 26 Mad. 98 (1902).] relied on by the Officiating Legal Remembrancer. It has always been the practice of this Court to interfere with orders of Magistrate under see. 476 of the Code, if a case for Interference was made oun, as also orders of the Civil Courts passed under that section. 98 (1902).] relied on by the Officiating Legal Remembrancer. It has always been the practice of this Court to interfere with orders of Magistrate under see. 476 of the Code, if a case for Interference was made oun, as also orders of the Civil Courts passed under that section. We have not been referred to any decision of this Court In which it has been held that this Court has no power under the present Code of Procedure to revise orders under sec. 476 of Civil or of Criminal Courts. Looking at the words of sec. 439, which confers on this Court power to revise any proceeding the record of which has been called for by itself or is otherwise before It and to the wide powers given to it to deal at its discretion with any such proceeding as if there was an appeal from the order of the Magistrate, we do not see why the Court has not power to interfere with orders under sec. 476. The Madras High Court in Queen Empress v. Srinivasalu Naidu I. L. R. 21 Mad. 124 (1898), held that the High Courts had power to revise orders made under sec. 476 but In the case of Eranholi Athan v. King-Emperor I. L. R. 26 Mad. 98 (1902). a Full Bench of that Court held the contrary, the learned Judges being of opinion that the introduction of sub-sec. I. L. R. 21 Mad. 124 (1898) In sec. 476 in the present Code has taken away the power. We do not quite see how the power has been taken away-the power conferred by sec 439. All that sub-sec. (2) says is that on one Magistrate forwarding a proceeding under sec 476 to another Magistrate for taking cognizance of an offence, the other Magistrate shall proceed as if a complaint were made to It and record It as a complaint under sec 200. Sub-sec (2) only prescribes the Procedure as to how the other Magistrate shold act. 7. An order under sec 476 is still a proceeding and a criminal proceeding if It is an order made by a Criminal Court. It directs the prosecution of a person after a judicial enquiry. In the present case it is, as pointed out by Mr. Jackson, an order directing the prosecution of the accused Gopal Barik. 8. 7. An order under sec 476 is still a proceeding and a criminal proceeding if It is an order made by a Criminal Court. It directs the prosecution of a person after a judicial enquiry. In the present case it is, as pointed out by Mr. Jackson, an order directing the prosecution of the accused Gopal Barik. 8. In order to judge whether sec 439 applies or not we have to read the words in that section with the words in sec 476 I. L. R. 26 Mad. 98(1902) and we have no doubt that a proceeding under sec 476 (1) is a judical proceeding and is covered by sec 439 of the Code. With all respect to the learned Judges of the Madras High Court who decided the case of Eranholi Athan v. King Emperor I. L. R. 26 Mad. 98(1902) we are of opinion that the decision Is not warranted by the words of sec 439 and sub-sec (2) of 476 of the Code. It may be that the Magistrate receiving a proceeding under sec 476 and recording It has the power to dismiss the case against the accused under sec 203, but this is no reason why, before the complaint Is received, this Court should not be able to revise the order directing the prosecution. It has always done so and the practice seems to us to be quite consistent with the intention of sec. 439. 9. Coming now to the merits of the case, we have already stated that there Is a large number of witnesses who have proved the case, and notwithstanding that the learned Sessions Judge had no jurisdiction to Interfere, he looked Into the evidence and came to the conclusion that the case against Pann Purl ought not to have been thrown out on the ground of improbability. We have thus a case in which the Sub-divisional Magistrate has expressed one opinion, on the evidence and the learned Sessions Judge has expressed a different opinion, and we have further a case of a boy of 12 who, we cannot easily believe, had acted maliciously in complaining against Pann Purl. He might have been mistaken. He might have been foolish enough to lodge a complaint under the persuasions of his elders, but those who persuaded him to act foolishly cannot be vicariously punished through him. 10. He might have been mistaken. He might have been foolish enough to lodge a complaint under the persuasions of his elders, but those who persuaded him to act foolishly cannot be vicariously punished through him. 10. It is not also in every case that a Magistrate considers to be false that he should direct under sec 476 of the Code prosecution under sec. 211 of the Indian Penal Code. Each case must be judged by its own facts, and we have no doubt on the evidence which we have perused that the case is a very doubtful one, to say the least. 11. In making this order we also take into consideration the age of the accused Gopal and we think that it was most Inadvisable for the Sub-divisional Magistrate to have directed his prosecution. We accordingly set aside the order of the Sub-divisional Magistrate, dated the 12th of January 1906.