Jamuar, J.:— This application in criminal revisional jurisdiction has been referred to a Division Bench by a learned single Judge of this Court as it raises a point of considerable importance in procedural law.
2. The short facts relevant for the decision in this case are these. On the 24th of March 1955, a complaint was filed by the petitioner before a Magistrate named Mr. B.P Srivastava, who, as it appears, was in charge of the Court of the Sub-divisional Officer on that date in the absence of the Sub-divisional Officer. Mr. Srivastava examined the complainant on solemn affirmation and after seeing the injuries upon the complainant ordered for the summoning of the accused under S. 323 of the Indian Penal Code, and then he directed that the case be transferred to the Court of Mr. T.P Singh, an Honorary Magistrate, with second class powers, for favour of disposal; and on the 25th March, 1955, Mr. T.P Singh directed processes to be issued on the accused persons.
3. It then appears that on the 29th March, 1955, an application was filed in the Court of the Sub-divisional Magistrate on behalf of the accused persons praying that the order passed by Mr. Srivastava on the 24th March, 1955, summoning the accused persons be recalled and for a further order that the case be enquired into by some independent person. Upon this petition, the Sub-divisional Magistrate ordered that it be put up with the record on the 4th April, 1955.
4. On the 4th April, 1955, the Sub-divisional Magistrate was otherwise busy and it was directed that the record be put up on the 7th May, 1955. On the 7th of April 1955, however, the Sub-divisional Magistrate passed the following order: “The learned lawyer for the accused presses for action early. Issue notice to the complainant to appear on 24-4-1955. Show to her lawyer.” 24th of April 1955, happened to be a holiday.
5. The matter was accordingly heard by the Sub-divisional Magistrate in the presence of the complainant and the accused on the 25th April, 1955. The learned Sub-divisional Magistrate then recalled the order of Mr. Srivastava which had been passed on the 24th of March 1955, summoning the accused persons under S. 323 of the Indian Penal Code, and directed that the complaint be enquired into by one Sri S.K Kussain who should submit a report.
6. In the same order he directed that the case was now recalled to his general file. It is against this order dated the 25th April, 1955, that the present application was filed on the ground that the order of the Sub-divisional Magistrate recalling the order passed by Mr. Srivastava and directing a further enquiry into the case under the provisions of Section 202 of the Cr PC was without jurisdiction.
7. Mr. Sinha, in support of this application has relied upon the case of Qamarali Syed Ali v. Mt. Tulsi, AIR 1938 Nag 433 (A), in which it was observed by reference to Section 202 of the Cr PC, that such a procedure cannot be adopted after evidence had been taken for the complainant and process had been issued.
8. It was stated that the Magistrate could not go back beyond the stage reached by his predecessor. The reason given was that a necessary preliminary to an inquiry under S. 202 was postponement of issue of process, but where that was not done by the first Court, which in fact procured the attendance of the accused, the stage for holding inquiry under S. 202 had passed and could not be revived subsequently.
9. Mr. Jha on the other hand, appearing for the opposite party relied upon the case of Lalit Mohon v. Noni Lal, 27 Cal WN 651 : (AIR 1923 Cal 662) (B). In this case, on a complaint having been made, the Magistrate ordered issue of process under S. 204, but subsequently on the same date a cross-complaint was laid and the Magistrate then rescinded the order and sent both the cases to a subordinate Magistrate for local enquiry.
10. It was held that the order passed by the Magistrate under Section 204 of the Cr PC, was not a judgment to which the provisions of Section 369 of the Cr PC, would be applicable. It was also pointed out that there is nothing in the Code forbidding the Magistrate to consider an order of this kind on sufficient grounds. This order subsequently made rescinding the first order was, therefore, held as not having been without jurisdiction.
11. This case was followed by a learned single Judge of this Court in the case of Ramchandra Naidu v. Manu Swamy Naidu, AIR 1948 Pat 31 (C). Upon this view of the law Mr. Jha contended that the order passed by the Sub-divisional Magistrate recalling the order made by Mr. Srivastava was legal and could not be said to have been made without jurisdiction.
12. There are two distinguishing features in the present case before us. Whereas in the Calcutta case, as also in the Patna case, it was the same Magistrate who had recalled his previous order and passed a fresh order, in the case before us this is not so. In the present case, it was Mr. Srivastava who had entertained the complaint on the 24th March, 1955, and had ordered for the issue of summonses and thereafter on the 25th April, 1955, the Sub-division Magistrate rescinded that order and directed a further enquiry under Section 202 of the Cr PC.
13. The second point of distinction is that whereas in the Calcutta and the Patna cases referred to above the first order was rescinded before processes had issued or been served upon the accused persons — indeed in the Calcutta case it was on the same day that the order was rescinded — in the present case before us it appears from the record that in pursuance of the order passed by Mr. Srivastava on the 24th March, 1955, processes upon the accused persons had been issued and in fact served.
14. A similar point arose in another case of this Court before Shearer, J., in Nako Singh v. Nunoo Singh, 48 Cri LJ 626 (Pat) (D) and the Calcutta case reported in 27 Cal WN 651 : (AIR 1923 Cal 662) (B) was referred to. The facts of that case are somewhat similar to the present one before us. In that case the learned Sub-divisional Magistrate had taken cognisance of the offence & had directed non-bailable warrants of arrest to issue. The persons against whom these warrants had been issued, or most of them, surrendered in Court and were enlarged on bail.
15. Thereafter, they put in a petition asking that they should forthwith be discharged. It is unnecessary to state the grounds which were laid for the order of discharge. The Sub-division all Officer passed an order recalling the processes and sending the case to a Sub-deputy Magistrate for holding a detailed judicial inquiry and report. His Lordship observed that it was not open to the learned Sub-divisional Magistrate, having once decided to take cognisance of the offence and having issued processes to compel the attendance of the persons complained against, to go back, as it were, and direct that an enquiry preliminary to the commencement of an actual trial should be held.
16. With reference to the Calcutta case reported in 27 Cal WN 651 : (AIR 1923 Cal 662) (B), it was pointed out that in that case although the Magistrate had ordered summonses to issue, summonses had not in fact issued before the order was rescinded, whereas in the case before his Lordship warrants were not merely issued but were apparently executed and the persons against whom they were issued were enlarged on bail. If I may say so with respect, I find myself in entire agreement with the opinion expressed in this case.
17. Section 202 of the Cr PC provides that a Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognisance, 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 direct an inquiry or investigation to be made by any Magistrate subordinate to him-This section clearly contemplates that the Magistrate before whom the complaint has been filed and who has received the complaint may postpone the issue of process and direct an enquiry to be made. It is but natural that the Magistrate who has passed the first order may, for reasons good and sufficient, rescind that, order, but not if the case has gone beyond the stage of rescission, as for example, where summonses have issued and served, or warrants of arrest have issued and served.
18. It is not contemplated, in my opinion, that another Magistrate who had neither received the complaint nor heard the complainant on solemn affirmation should rescind the order passed by the Magistrate who had received the complaint and heard the complainant on solemn affirmation and that too after summonses as directed by the first Magistrate had been issued and served.
19. For these reasons, I am of opinion that the learned Sub-divisional Magistrate, who passed the order complained against on the 25th of April 1955, rescinding the order passed by Mr. Srivastava on the 24th of March 1955, and ordering a further enquiry into the complaint, had passed that order without jurisdiction. That order must, therefore, be set aside.
20. The result is that the application is allowed, the order passed by the Sub-divisional Magistrate dated the 25th April, 1955, is set aside, and the hearing of the case will proceed according to law.
21. Choudhuri, J.:— I agree.
R.G.D
22. Application allowed.