Judgment These are two Civil Revision Petitions which arise out of a single judgment passed by the Additional District Judge, West Godavari, at Eluru, by which he disposed of two appeals C.M.A. Nos. 10 and 15 of 1953. Those appeals were from the orders of the Subordinate Judge of Eluru passed in E.A. Nos. 151 and 152 of 1951 in O.S. No. 52 of 1948. The petitioner before me is one of the defendants against whom the respondent got a decree for partition and for past and future profits. On an execution petition filed in relation to the past profits, the standing crops in possession of the judgment-debtors were attached. The decree-holder applied for immediate sale thereof, but on the petition filed by the 2nd judgment-debtor (the petitioner herein) the Court directed that he might continue in possession and cut the crops, heap them in the presence of the decree-holder but that thereafter he should not remove the crops and should take further instructions from the Court. The undertaking given to this effect by the petitioner was not honoured. The decree-holder, therefore, applied for the appointment of a receiver. The receiver was appointed by the Court but when he went to take possession of the property, he found neither the hay nor the paddy existing on the fields. He reported accordingly. The decree-holder thereupon filed two petitions E.A. Nos. 151 and 152 of 1951. In the first application he made a request that the defendants-respondents should, for violation of the undertaking given, be committed to civil prison for contempt of Court. In the second application he applied to the Court to lodge a complaint under sections 206 and 379 of the Indian Penal Code against the defendants for having fraudulently removed the paddy and disposed it of stealthily. The Subordinate Judge, after due enquiry, came to the conclusion that the judgment-debtors had not committed any offence complained against them by the decree-holder and therefore dismissed both the applications with costs. The decree-holder preferred separate appeals before the Additional District Judge, West Godavari, at Eluru. The Subordinate Judge, after due enquiry, came to the conclusion that the judgment-debtors had not committed any offence complained against them by the decree-holder and therefore dismissed both the applications with costs. The decree-holder preferred separate appeals before the Additional District Judge, West Godavari, at Eluru. The learned Judge addressed himself to two points for determination, viz., (1) whether the respondents (judgment-debtors) or any of them removed the crops attached by the Court and subsequently cut and heaped on the fields; and (2) whether it is expedient in the interests of justice to make a complaint in writing to the First Class Magistrate having jurisdiction in respect of the offences which appear to have been committed by both or any of the judgment-debtors. On a due consideration of the material on record, he came to the conclusion that the present petitioner alone was guilty of contempt of Court in Violating the orders of the Court and was therefore liable for criminal prosecution. He remanded the case directing the Subordinate Judge to order attachment of the properties of the present petitioner and issue a warrant for his arrest and commit him to civil prison for a period of one month, directing the decree-holder to pay the subsistence allowance. He further directed that his properties should be attached and brought to sale, and out of the sale proceeds Rs. 100 should be paid to the decree-holder as damages. So far as the complaint was concerned, having come to the conclusion that the present petitioner had committed the offence under section 206, Indian Penal Code he directed the Subordinate Judge to male a complaint against the petitioner under the said section and to forward the same to the Magistrate of the First Class having jurisdiction. He made a further direction that the petitioner should pay the costs of the appellant in both the Courts. It is against these two orders that the present Civil Revision Petitions are preferred. The learned counsel on behalf of the petitioner has argued that the order passed under section 476 does not comply with the provisions embodied therein, that it is irregular and against law and so cannot be sustained. It is against these two orders that the present Civil Revision Petitions are preferred. The learned counsel on behalf of the petitioner has argued that the order passed under section 476 does not comply with the provisions embodied therein, that it is irregular and against law and so cannot be sustained. His contention is that the learned Additional District Judge did not record a finding to the effect that it was expedient in the interests of justice to make a complaint against the petitioner, and that this by itself constitutes a defect which can never be cured in law. The second argument advanced is that the learned Judge could not under any provision of law, direct the Subordinate Judge to file a complaint with regard to the offences said to have been established. Lastly it is argued that the learned Judge has recorded a finding that the present petitioner is guilty of an offence under section 206, and this apart from being prejudicial to the case of the petitioner, is a grave irregularity which vitiates the order. Section 476, Criminal Procedure Code, reads thus: (1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, sub-section (1), clause (b) or clause (c). which appears to have been committed in or in relation to a proceeding in that Court, such court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward he same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable, may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate. * * * * * “476-B. Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under section 476 or section 476-A, or against whom such a complaint has been made,may appeal to the Court to which such former Court is subordinate within the meaning of section 195, sub-section (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, itself make the complaint which the subordinate Court might have made under section 476, and if it makes such complaint theprovisions of that section shall apply accordingly”. Thus it is plain from the language of the section that what the learned Judge had to determine was whether any offence referred to in section 195 (1) (b) or (c) appeared to have been committed and the finding that he could record should only be to that effect; secondly that he should come to a conclusion that it is expedient in the interests of justice to make a complaint and thirdly, that if under section 476-B he comes to the conclusion that a complaint should be made, he cannot delegate the lodging of the complaint to his subordinate but he should do it him-self. These provisions are not merely directory but mandatory. Omission to comply with them vitiates the order. The learned counsel has referred to several rulings in support of his contentions. It is sufficient if I refer to Kuppuswami Rao v. Sathiapria Rao1, Manir Ahamed Chowdhury v. Jogesh Chandra Roy2, Pakkiriswami Pillai, In re3 and Liaqat Hussain v. Vinay Prakash4. It is has been held in the above decisions that before a Court can start the machinery contemplated in section 476, it must be clearly found that the prosecution is in the interests of justice, otherwise there can be no foundation for a proceeding of that character. It follows therefore that before filing a complaint under section 476 the Court must give a finding that the prosecution is necessary in the interests of justice. It has also been held therein that an appellate Court has no power to direct the lower Court to file a complaint and further that great care and caution should be taken in setting the machinery in motion and the Court should desist from deciding the question of guilt or innocence. It has also been held therein that an appellate Court has no power to direct the lower Court to file a complaint and further that great care and caution should be taken in setting the machinery in motion and the Court should desist from deciding the question of guilt or innocence. In my opinion, as the order passed by the Court below is not in compliance with the provisions of section 476, it should be set aside. That apart, having regard to the circumstances of the case, it does not appear to be expedient in the interests of justice to subject the petitioner to criminal prosecution. It is stated that he could not report the harvest of the crop or seek permission to remove the crops on account of the summer vacation which started immediately after the crops were cut and that as soon as the Courts reopened, he reported the matter. It was also stated that it was with the permission of the decree-holder that the paddy was removed; for, the matter in dispute with regard to profits was settled out of Court to the satisfaction of the decree-holder. It is probably on this ground that the learned Subordinate Judge did not think it proper to lodge a complaint against the petitioner. In my opinion, the order of the District Judge as against this must be set aside. The Revision Petition No. 387 of 1954 is therefore allowed. The complaint, if filed, is directed to be withdrawn. Now, I turn to the question of civil liability which in the opinion of the District Judge must be attached to the petitioner and he should be dealt with as though he has contravened the provisions of Order 39, rule 2, Civil Procedure Code. It is no doubt true that an undertaking given by a party to a proceeding in the circumstances tantamount to an injunction passed by the Court and the breach of it may even be punishable. But if it is to be dealt with under the provisions of the Code of Civil Procedure, it is necessary that the provisions of Order 39, rule 2, Civil Procedure Code, should apply. Evidently the order passed by the Additional District Judge is one under Order 39, rule 2 (3). But this punishment can be meted out only in cases falling under Order 39, rule 2, Civil Procedure Code. Evidently the order passed by the Additional District Judge is one under Order 39, rule 2 (3). But this punishment can be meted out only in cases falling under Order 39, rule 2, Civil Procedure Code. That apart, it is to be borne in mind that the breach complained of is in relation to the undertaking given to the Additional Subordinate Judge. The said Judge on due enquiry came to the conclusion that the breach alleged did not constitute any offence not even a technical offence as the act was bona fide since the permission of the Court could not be obtained on account of summer recess and further after the re-opening the party had informed the Court that on account of settlement out of Court between the decree-holder and the judgment-debtor the property in question was disposed of. It is significant that the decree-holder in spite of notice has not entered his appearance so far. Thus when the Court of first instance did not attach any importance to the breach of the undertaking, I do not think that the appellate Court, in the circumstances of the case, was justified in passing the order under revision, especially when such a breach cannot under law be dealt with strictly under the terms of Order 39. rule 2 (3), Civil Procedure Code. I therefore allow the Revision Petition No. 388 of 1954 and set aside the order of the Court below. There will be no order as to costs. A.S.R. ----- Petitions allowed.