K.C Das Gupta, J.:— On 24th of October, 1953, the petitioner Anil Kumar Saha, lodged a complaint before the Sub-Divisional Magistrate of Lalbagh against the opposite parties, accusing them of having committed various offences. The main allegations were that when the opposite party No. 1, Pranada Chakrabarty, went to the complainant's father's house on 23rd of October, 1953, he demanded from his father, Bistu Pada Saha, the original Ekrarnama which one Samsher had executed in his favour but as Anil Kumar Saha, on being asked by his father to make a copy of the same for being made over to the Sub-Inspector, went into an inner compartment, the Sub-Inspector along with two constables trespassed into the inner compartment, demanded the original Ekrarnama and while two constables — whose names do not appear to have been mentioned in the petition of complaint, though they have been mentioned in the petition here — held up the petitioner, the Sub-Inspector, opposite party No. 1, threatened him with a revolver. The allegation against the other accused persons appears to have been mainly of trespass into Bistu Pada's house. After taking cognizance of the petition of complaint, the Sub-Divisional Magistrate examined the complainant, Anil Kumar Saha, on solemn affirmation and then sent it for enquiry to the Deputy Superintendent of Police (A). After the Deputy Superintendent of Police made his report, a Naraji petition was filed and then the Sub-Divisional Magistrate sent the matter to-Sri A.C Chatterjee, a Magistrate, for a judicial enquiry and report. The Magistrate examined a large number of witnesses produced by the complainant and also examined two persons — the Deputy Superintendent of Police who held the previous enquiry and the Court Sub-Inspector of Police — as Court witnesses. He stated in his report his conclusion that no prima facie case had been made out against the accused. The Sub-Divisional Magistrate considered the report and recorded the following order:

“The enquiring Magistrate has examined 20 witnesses on solemn affirmation produced, by the complainant and also 2 Court witnesses. Having gone into the records of deposition of the witnesses and the report of the enquiring Magistrate, I find that no prima facie case has been made out against the accused person?, namely S.I Pranada Chakravarty and others. I, therefore, dismiss the complaint under Section 203 of the Cr PC”

2. It is this order of dismissal under Section 203 of the Cr PC that Anil Kumar Saha now challenges as made illegally and improperly. The only ground urged before us in support of this submission, that the order of dismissal was illegal and improper, is the first ground mentioned in the application for revision in this Court. It is in these words

“For that the learned Magistrates ought not to have allowed the accused to be represented before them before the issue of processes and to make submissions before them.”

I am unable to find anything in the record from which it can be said that the accused was represented before the Sub-Divisional Magistrate. What appears, however, is that when the enquiry was proceeding before Sri A.C Chatterjee a lawyer was present in his Court, on behalf of the accused and that the Magistrate put certain questions to him and, on the basis of what the lawyer said, he put certain questions to the witnesses. This seems to me to be a fair conclusion from what has been recorded by Sri A.C Chatterjee himself on an application that was filed before him on 15th of February, 1954. In the application that was filed by Anil Kumar Saha on that date, it was alleged that after the examination of prosecution witness No. 1. “the Court was pleased to ask certain questions to the witness” and that “just after that the Court was pleased to ask Sri N.K Bhattacharjee, Advocate, who was present in Court, ‘whether he has any explanation to suggest?’ To this the learned Advocate suggested some questions which were asked of the witness”. It was mentioned in paragraph 3 of the application that it was not known whom the Advocate represented and whether he had “any locus standi at this stage”. The application ended with the submission that this procedure would be seriously prejudicial to the petitioner and Should not be followed. On this application the Magistrate recorded the following statement:

“I found Sri Nagendra Bhattacharya advocate Watching the proceedings on behalf of the accused. When required by me he submitted explanation in regard to the evidence of some witnesses. I cleared up the matter by putting questions to the witnesses. As a matter of fact, he simply said that witnesses examined were also examined by D.S.P (A). I referred to the previous statements of witnesses to D.S.P and put questions to the witnesses for the ascertainment of truth of the complaints made.”

In consideration of this, I have come to the conclusion that it is fair to believe that the advocate Nagendra Bhattacharyya was present in Court at least on 15th of February, 1954, during the examination of some of the witnesses in the enquiry under Section 202 of the Cr PC and that some questions were put to him by the Magistrate, apparently asking him whether he had any questions to suggest for being put to the witnesses; that thereupon he did suggest that witnesses' attention should be drawn to previous statements made by them before the Deputy Superintendent of Police and that thereupon the Magistrate did put questions on those lines to the witnesses.

3. The question before us is whether this part that was taken by the accused through his lawyer in the enquiry under Section 202 of the Cr PC vitiates the enquiry to such an extent as to make the order of dismissal passed by the learned Magistrate on basis of that report liable to rejection. Sections 202, 203 and 204 are the three sections of the Code of Criminal Procedure which lay down the procedure to be followed by Magistrates after cognizance has been taken on a petition of complaint and the complainant has been examined on oath. Section 202 which will have to be set out in full detail provides that where the Magistrate decides to postpone the issue of process, he should either enquire into the matter himself or direct an enquiry or investigation by a Magistrate subordinate to him, or by a Police officer. Section 203 provides that the Magistrate may dismiss the complaint, if, after considering the statement on oath of the complainant — and of the witnesses (according to the recent amendment) — and the result of the investigation or inquiry under S. 202, there is in his judgment no sufficient ground for proceeding. Section 204 provides that if in the opinion of the Magistrate there is sufficient ground for proceeding, he should issue a summons in certain cases and warrant in other cases as directed in the section. The position, therefore is that after the complainant has been examined on oath and (his witnesses, it any, have been examined, under the recent amendment), the Magistrate may decide straightway that there is no case for further proceeding. In that case he should dismiss the complaint at once. He may, on the contrary, decide straightway that there is a case for proceeding. In that case he should issue process for the attendance of the person complained against and thereafter the stage is set for the trial. There may be cases where the Magistrate is unable to make up his mind straightway one way or the other. It is with such cases that S. 202 deals. Unable to decide whether process should issue under S. 204 or this case should be dismissed straightway under Section 203, the Magistrate has necessarily postponed the issue of process and then he has the right, and in fact the duty, of either holding an enquiry himself or directing an enquiry by a Magistrate subordinate to him or an investigation by a Police Officer or such other person as he thinks fit. Section 202 is in these terms:

Sub-section 1: “Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been transferred to him under S. 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint:

Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of S. 200.”

4. Sub-section 2: “If any inquiry or investigation under this section is made by a person not being a Magistrate or a police-officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police-station, except that he shall not have power to arrest without warrant.”

Sub-section 2-A: “Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.”

“Sub-section 3: “This section applies also to the police in the towns of Calcutta and Bombay.”

5. The first thing that strikes one on reading this section is that it is when the Magistrate decides to postpone the issue of process for the attendance of a person complained against, that an enquiry or investigation under this section takes place. Clearly, therefore, a Magistrate contradicts himself if, for the purpose of an enquiry under S. 202, he demands the attendance of the person complained against. Whether it is a notice that is issued for his attendance or any other process, the fact remains that in doing so, he is issuing just the process compelling the attendance of the person for an enquiry, the basis of which is that he has decided to postpone the issue of process for compelling the attendance. There is, therefore, no gainsaying the fact that a Magistrate acts wholly against the provision of law when he calls on the accused person to attend an enquiry under Section 202 of the Cr PC. Where this is done and thereafter an order is passed under Section 204 of the Cr PC, the accused can legitimately complain that the Magistrate has acted illegally and the process issued for his attendance should be quashed. If, on the other hand, after the accused has been made to appear against the provisions of the section an order is passed dismissing the complaint, it would be open to the complainant to say that the Magistrate having followed an illegal procedure, the order of dismissal should be set aside. In such cases there would be good reason, in my opinion, for holding that the Magistrate's action has been improper and that the order passed should be set aside.

6. What, however, is the position when without the Magistrate calling upon the accused to appear, the accused appears of his own accord and offers to help the Magistrate in the enquiry? There is nothing in the words used in the section prohibiting the accused from appearing. Quite clearly, what the Code contemplates is that the decision on the enquiry under Section 202 of the Cr PC should be arrived at without any assistance of the accused. Is it right to say, then that where the accused does appear, the Magistrate is bound to refuse to hear him and to refuse the assistance that he may give? In my judgment, it is impossible to give a uniform answer to this question for all cases. The answer would depend on the nature of the assistance the accused offered to give. Where the accused asks to cross-examine the witnesses of the prosecution and then to adduce defence and thereafter to address arguments, the enquiry will be turned into a full fledged trial, even before the trial has taken place. In almost every case, in my opinion, such a procedure will be unfair to all the parties concerned. It will be unfair to the Court because the Court may have to do the same work over again. It will be unfair to the accused where, after this trial in the garb of an enquiry, process is issued against him, for he may have been compelled to disclose the defence and thereby injure the chances of his acquittal or discharge. It will be unfair to the complainant even where process is issued under S. 204, as he will have to prosecute, in fact, two trials for the same offence. Where this is the nature of the assistance which the accused offers to give or is allowed to give, I am of opinion that the Magistrate cannot but be held to have acted illegally by adopting a procedure which is not even remotely contemplated by the Code and when such procedure is followed, the order whether it is one of dismissal under Section 203 of the Cr PC or for issue of process under Section 204 of the Cr PC can properly be set aside by this Court in exercise of its powers of revision.

7. The position, in my opinion, is wholly different where the only assistance the accused oilers is by being present at the enquiry and by assisting the Magistrate in such matters as he may require for the purpose of examination of the witnesses. It is to be noticed that S. 202 itself provides that a Magistrate enquiring into a case may, if he thinks tit, take evidence of witnesses on oath. It is important also to notice that the enquiry or the investigation under S. 202 is ‘for the purpose of ascertaining the truth or falsehood of the complaint’. In the examination of the witnesses on one side only, the Magistrate is clearly at a disadvantage. He cannot for the purpose of removing that disadvantage allow the accused to cross-examine these witnesses. There is a world of difference, however, between allowing the accused to cross-examine the witnesses and the examination by the Magistrate on certain lines suggested by the accused or some persons on his behalf. I can see no reason why in this difficult task of ascertaining the truth or falsehood of the complaint on the evidence adduced by one side only, the Magistrate should be denied the slightest aid from the accused. I can see no ground for thinking the presence of the accused as something unholy which makes everything he touches unacceptable. The Magistrate may well refuse to take any assistance from the accused. On the other hand, there may be cases where the Magistrate may think it proper to take such assistance from the accused or lawyers who are representing him. I can find nothing in the Code which prevents the Magistrate from taking such assistance.

8. Apart from authority, I would, therefore, hold that the mere presence of an accused person at any enquiry under Section 202 of the Cr PC or assistance given by him directly or through his lawyer to the Magistrate holding the enquiry does not amount to any illegality or even irregularity. It may well amount to illegality where the assistance given turns the enquiry into practically a trial before a trial. The assistance may, however, be kept by the Magistrate within proper limits and where this is done there is nothing wrong.

9. It is important to bear in mind in this connection the provisions of Section 537 of the Cr PC. Where the accused is allowed to cross-examine the witnesses, to adduce defence evidence and to argue thereafter the case as on a trial, the procedure would be so clearly against the procedure contemplated by the Code that it would be proper to hold it to be illegal, so that the order passed on the basis of that report would be also illegal. Where, however, such a mistake is not made and only some assistance is taken from the accused or his lawyers, the mistake is at the worst an irregularity. Under the provisions of Section 537 of the Cr PC, no order passed by a Court of competent jurisdiction shall be reversed or altered on account of any irregularity in any enquiry under this Code unless such irregularity had, in fact, occasioned a failure of justice. Even if, therefore, I may have been persuaded to hold that an irregularity has been committed by the Magistrate in asking some witnesses during the enquiry certain questions on the basis of suggestions made by a lawyer on behalf of the accused, I would ask myself the question whether this has caused in fact a failure of justice. I am unable to see in this case that by such irregularity, if any, any failure of justice has been caused.

10. Turning now to authority, it is necessary to mention first of all the decision of this Court in the year 1886: Baidya Nath Singh v. Muspratt, ILR 14 Cal 141 (A). That was a case in which in an enquiry under Section 202 of the Cr PC, the Magistrate had called for a report from the Assistant Superintendent of Police who had been complained against. On a consideration of the report, the complaint was dismissed. This Court held that the Magistrate acted illegally in calling for a report from the Assistant Superintendent and that it was never contemplated that under S. 202 any report could be called for from an accused person. Many years after this Sanderson, C.J, had occasion to consider the same question in two cases: Balai Lal Mukeejee…Complainant, v. Pasupati Chatterjee…Accused, Opposite Party., 21 Cal WN 127 : (AIR 1917 Cal 462) (B) and Chandi Charan v. Manindra Chandra, 27 Cal WN 196 : (AIR 1923 Cal 198) (C). In the earlier case Sanderson, C.J, sitting with Walmsley, J., set aside an order of dismissal passed under Section 203 of the Cr PC on the ground, among others, that the Magistrate ‘allowed the accused to be represented by a learned pleader and to address him to argue the points which arose in the case and to put in a detailed statement of the points and the facts upon which the defence relied’. The learned Chief Justice Observed: “To my mind, this procedure is quite inconsistent with the scheme of this legislation. I do not understand how the accused person ever goes before the Magistrate until the Magistrate has made up his mind to issue process. The Magistrate is directed by the statute to inquire into the case in certain specified ways, and then having investigated the matter in one or other of the specified ways, he is to decide whether process ought to issue, and then if he thinks that process ought to issue, he should direct process to issue. Then the accused person appears, and if he has got a defence, his defence is investigated as well as the case for the prosecution. That being so, it appears to me that the learned Magistrate has not acted in this case in accordance with the procedure which is laid down by the Code of Criminal Procedure”. In Chandi Charan Mitra's case (C), Sanderson. C.J, sitting with Chotzner, J., had again to deal with the question” whether the procedure of calling the accused to show cause why he should not be proceeded against was improper. In no uncertain terms, the learned Chief Justice condemned the procedure and in doing so he drew attention to the observations in his earlier judgment and expressed a hope in these words: ‘I hope that the judgment, which we are delivering in this case and the judgment, which this Court delivered in the case of Bulailal v. Pasupati (B), will be brought to the notice of Magistrates and that they will observe in this respect the plain provisions of the Code of Criminal Procedure’.

11. In spite of the observations in these two cases which seem to suggest that the presence of the accused itself vitiates the entire atmosphere of the enquiry, it is worth noticing that this severity of outlook was not maintained by this Court in later years. In J.K Sinha v. Jognath Banerjee, 36 Cal WN 674 : (AIR 1932 Cal 697) (D), Panckridge and M.C Ghose, JJ. had to deal with the same question and expressed the opinion that the procedure followed by the Magistrate in allowing the persons complained against to tender evidence in the shape of certified copies of the partition decree and certain pleadings in a suit was illegal and irregular. Nothing was said, however, as regards the accused being allowed to be present. In Fanindra Kumar v. Rahat Bux, 37 Cal WN 709 : (AIR 1933 Cal 447) (E), Panckridge, J., sitting with Patterson, J., had before them a case in which not only were certain witnesses, including one of the accused, examined during the enquiry under Section 202 of the Cr PC, but the Magistrate permitted the accused to be represented by lawyers and to argue that the complaint should be dismissed. It is worth noticing that Panckridge, J., did not consider the examination of the accused in the enquiry to be wrong. At p. 711 (of Cal WN): (at p. 448 of AIR), appears the following observation in his judgment:—

“It is suggested that a Magistrate to whom a complaint is referred for inquiry acts illegally if he examines or questions the person complained against. I cannot agree with this; no such limitation is suggested in the language of the section, and I see no reason to dissent from the view expressed in In re, Virbhan Bhagaji, ILR 52 Bom 448 : (AIR 1928 Bom 290) (F), that such a procedure is not illegal. It appears to me that to prevent the Magistrate from questioning the person complained against, at any rate for the purpose of ascertaining what is his answer to the charge, if he has one, would be in many cases to render the enquiry futile. It is easy to imagine cases where information that the accused alone can furnish will conclusively prove the falsity of the complaint.”

He went on, however, to observe that to hold this was not to hold that it was right for a Magistrate to examine the accused and then after argument to make up his mind which of two rival stories he would accept. It seems that while the learned Judge thought nothing wrong in witnesses for the defence including the accused person, being examined by the Magistrate during the enquiry, he thought it was wrong for the Magistrate to permit the accused to be represented by lawyers and to argue that the complaint should be dismissed. The reason of this seems to me to be plain. As I have said earlier, such a procedure allowing the accused to examine defence witnesses and then allowing him to argue the matter through lawyers would be really converting the enquiry to decide whether there should be a trial into a trial. That seems to me to be the reason for Panckridge, J., seeing nothing objectionable up to the stage of examination of the accused and his witnesses, but thinking it wrong when the matter proceeded further on the representation of the accused by a lawyer and dismissal of the complaint.

12. It may be mentioned that while the Madras High Court has in a Full Bench decision — Appa Rao Mudaliar v. Janaki Ammal. ILR 49 Mad 918 : (AIR 1927 Mad 19) (G) — held it to be wholly wrong to call on an accused person to be present at an enquiry under Section 202 of the Cr PC, it has said that it is a mere irregularity. In ILR 52 Bom 448 : (AIR 1928 Bom 290) (F), the Bombay High Court held that there was nothing absolutely illegal in the issue of a notice to an accused person in such an enquiry. It is not necessary however, to refer further to the views taken in the other High Courts, in view of the numerous cases on the question in our own Court. These cases do not, in my opinion, go counter to the view which appears to me to be right on principle that the mere fact that the accused has given some assistance does not vitiate the enquiry and it is only where the assistance goes to the extent of turning the enquiry almost into a trial that the procedure becomes either illegal or irregular. Where the procedure is illegal there is nothing further to consider. The order passed on the basis of that is illegal. Where the procedure is irregular, the Court has further to see whether by such irregularity a failure of justice has in fact occurred.

13. On a consideration of authorities and principle, I have, therefore, come to the conclusion that the act of the enquiring Magistrate in putting certain questions to the witnesses during the enquiry under S. 202 on the basis of some suggestions made by a lawyer, who was appearing on behalf of some of the accused persons to watch the proceedings, does not amount even to any irregularity and furnishes no ground for challenging the order.

14. The rule is, therefore, discharged.

15. Guha, J.:— I agree.

S.R.R

16. Rule discharged.