Das Gupta, J.:— This Rule is directed against an order directing issue of warrant of arrest against the five petitioners under secs. 120B/302 of the Indian Penal Code. On the 11th of February, 1952. one Biswanath Dhanuka met his death when in the house No. 196-C, Chittaranjan Avenue in a flat in that house the four Dalmia petitioners lived. With them also lived a young girl named Sarada. Bholaram Dalmia and Rabishankar Dalmia are her brothers, Ramprosad Dalmia is her uncle and Shyamsundar Dalmia her cousin. Biswanath Dhanuka was a frequent visitor to another flat in that building and fell in love with Sarada; love letters were exchanged but when her marriage with another young man was arranged Biswanath Dhanuka took exception to it. The marriage was fixed for the 18th of February. On the 11th of February, Biswanath came to this house. At 6 P.M or shortly thereafter he was discovered lying dead with his throat cut with a blood-stained knife by the body. The body was found on the first floor landing of the staircase. After prolonged investigation the police sent up a report stating that the materials available were not sufficient for sending up a charge-sheet against any person. Thereafter Biswanath's father filed an application in the court of the Additional Chief Presidency Magistrate alleging among other things that the police had proceeded under a fundamental misconception that it was a case of suicide, that the circumstantial evidence along with the oral evidence as disclosed in the investigation was strong enough to lead to the conclusion that the accused Bholaram Dalmia and others, seven in number, were involved in the offence, that the police completely failed to appreciate the evidence and that it was entirely wrong to say that there was not sufficient evidence to convict the accused. The application ended with the prayer that the Additional Chief Presidency Magistrate should refuse to accept the police report and should order a judicial enquiry into the matter or take “such step or steps for bringing the delinquents to book”. Thereafter the learned Additional Chief Presidency Magistrate, Mr. K.K Das Gupta, directed Mr. K.C Sen to hold a judicial enquiry into the complaint and report by the 18th of August, 1952. Before Mr. Sen the complainant wanted to examine two witnesses only. These two were examined. After consideration of their evidence and “the police papers, records in Coroner's court, post-mortem examination report and the replies of Dr. Kabir Hossain to certain queries made by the police”, the learned Magistrate came to the conclusion that this was undoubtedly a case of murder but there was “unfortunately nothing direct or circumstantial to show that the persons complained against committed the murder or abetted the commission of the murder or conspired together to commit the murder.” Accordingly he submitted a report stating his conclusion and the reasons thereof and recommending dismissal of the petition of complaint under section 203 of the Code of Criminal Procedure. When the report came to Mr. K.K Das Gupta, he apparently agreed with the Magistrate in the view he had taken of the matter but instead of dismissing the complaint as he should reasonably have done in view of his conclusion he passed an order in these words:

“At the same time I wish to keep the doors open for further investigations as against any of the suspects at the instance of the complainant, if so advised. In the view I have taken I do not think that I should dismiss this petition of complaint under section 203 of the Code of Criminal Procedure and I allow the same to be filed”. On this Court being moved against this order this Court held that the order passed by the learned Chief Presidency Magistrate was not in accordance with law and set aside the order passed by him and directed that he should, “after consideration of the statement of the complainant on oath and the result of the enquiry which was held under section 202 of the Code of Criminal Procedure come to a decision whether there is sufficient ground for proceeding in the matter. If in his opinion there is such ground he should issue processes under section 204 of the Code of Criminal Procedure and if in his opinion there is not sufficient ground for proceeding, he should proceed under section 203 of the Code of Criminal Procedure”. In spite of the fact that the prayer of the petitioner that further enquiry should be held by the learned Chief Presidency Magistrate was rejected by this Court, the complainant obtained an order from the Chief Presidency Magistrate apparently concealing the fact of the above prayer having been refused by this Court withdrawing the case to his own file. The Chief Presidency Magistrate thereafter passed an order for issue of process against these petitioners under section 302/120B of the Indian Penal Code. The petitioners thereafter moved this Court against this order of the Chief Presidency Magistrate and the order was set aside by this Court and the case was sent back to the Court of the Additional Chief Presidency Magistrate with the following order:

“The matter must accordingly be determined by the learned Additional Chief Presidency Magistrate in the light of the order of this Court passed on November 26, 1952. The order of the learned Chief Presidency Magistrate, dated January 21, 1953, complained of in this application, is set aside. The learned Additional Chief Presidency Magistrate is directed to act in accordance with the order of this Court, dated November 26, 1952”.

2. After the record went back to the Additional Chief Presidency Magistrate, K.K Das Gupta he unfortunately did not take up the matter and it was only after he had retired that his successor Mr. B.C Ghosh took up the matter.

3. Mr. Ghosh thereafter examined the complainant on oath and passed the order just now complained of

4. This order indicates that in coming to the conclusion that process should be issued, the learned Magistrate relied on police papers, the report of the judicial enquiry held by Mr. Sen and the comments thereon by Mr. K.K Das Gupta, the proceedings before the Coroner's Court and the post-mortem examination report.

5. The question arises whether the learned Magistrate could in law rely oft papers which were not on the records of the case Neither the proceedings before the Coroner nor the police papers formed part of the court's record. The issue of process under section 204 of the Code of Criminal Procedure or dismissal under section 203 is clearly a matter for judicial determination in my judgment, no Magistrate is entitled to bring to bear on the judicial determination of such matters information which came to his knowledge from other sources than in court in accordance with law. Say for instance, could a Magistrate issue process or dismiss a complaint on some confidential information received by him ? I am clearly of opinion that he could not. It has again and again been said that it is necessary not only that justice should be done but that justice should be seen to be done. If Magistrates were to base conclusions on materials not properly before the court, there would be great scope for impartial people thinking that justice has not been done.

6. In my opinion neither the proceedings before the Coroner for the police papers could in law be relied upon by the learned Magistrate in ordering issue of process. As regards the contents, of the police diaries maintained for investigation of cases under section 172 of the Code of Criminal Procedure it has been definitely laid down that a Magistrate may send for the police diaries and may use such diaries “not as evidence in the case, but to aid it in such enquiry or trial”. The diary maintained in the present case was not under section 172 of the Code of Criminal Procedure as that section is not applicable to investigation in Calcutta. 1 am not aware however of any provision in law which permits the use of police diaries maintained in connection with investigation of cases in Calcutta for any other purpose except for aiding the Magistrate in the enquiry or trial What the Magistrate could certainly do and should do, if he thinks it necessary for the ends of justice, is to secure the presence for examination in court of such persons whose statements in the police papers, according to him, provide materials that may justify the issue of process. It will be manifestly unjust to use such statement in the diary without the person being examined in court by the Magistrate himself or by some other Magistrate to whom he may send the matter for enquiry in the present case we are faced with the strange position that not only have the persons on whose statements in the police papers the learned Magistrate seems to have relied not been examined in court, but there is no indication in the learned Magistrate's order as to who these persons were, what their statements before the police were, and what materials these disclosed. Neither the complainant nor the accused nor this Court is therefore in a position to know what actually weighed with the learned Magistrate.

7. This, in my judgment, is not a position which can be allowed to remain without grave prejudice to the fair name of administration of Justice

8. The same considerations in my Judgment are applicable to the question of use of statements in Coroner's Court.

9. If, however, in our opinion, there would have been in the materials which had been properly brought before the court, prima facie justification for the issue of process against the persons under the charge under section 120B of the Indian Penal Code, it would have been improper for us to interfere with the order passed by the learned Magistrate. We have carefully considered the statement of the complainant, the report of the judicial enquiry, and also the statements of the two witnesses examined by him the utmost those might show would be that the accused petitioners or some of them might have a motive to murder Biswanath. The mere presence of motive would not however justify the issue of process in a case of this nature. It is well to remember that if, say, six persons have enmity against one, all the six may conspire to kill him or he may be killed by any one or more of them. In my judgment the evidence as adduced in the judicial enquiry fully justifies the view of the enquiring Magistrate, with which the then Additional Chief Presidency Magistrate found himself in agreement, that there were no materials to show that the persons complained against “committed the murder or abetted the commission of the murder or conspired together to commit the murder”.

10. If that had been all we would have no hesitation in quashing the proceedings before the Magistrate. As however we find that the learned Magistrate is apparently of the opinion that there are some statements of persons examined by the police or some other materials disclosed in the police report which justify the issue of process, we think it proper that the learned Magistrate should secure before himself the presence of such persons who in, his opinion would be able to give evidence in court as regards such circumstances. If after examination of such other persons, and consideration of their evidence, along with the evidence already recorded in the judicial enquiry, the statements of the complainant and the report of Mr. K.C Sen who held the judicial enquiry, the learned Magistrate thinks that there is sufficient ground for proceeding in the case he should issue process against such of the petitioners as he may think proper; otherwise he should dismiss the complaint under section 203 of the Code of Criminal Procedure.

11. We accordingly set aside the order passed by the learned Magistrate and send the case back to him for disposal in accordance with law in the light of the directions given above.

Debabrata Mookerjee, J.:— I agree.

A.K.D.G