1. This is an application against two orders, (1) of the Sessions Judge of Cuttack, dated the 21st April 1927, setting aside an order of dismissal of complaint against the accused persons and directing further enquiry into it, and (2) the subsequent order of Mr. Ahad, the Deputy Magistrate, dated the 26th April 1927, summoning the petitioners under S. 379, I.P.C
2. As to the first order, the main contention of the petitioners is that the Sessions Judge was wrong in setting aside the dismissal of the complaint, simply because he differed with the view of the evidence taken by Mr. Chaudhuri without coming to a conclusion that the view taken by him was perverse.
3. But no hard-and-fast rule can be laid down. S. 436 which empowers the High Court, the Sessions Judge, or the District Magistrate to direct further inquiry into a complaint dismissed under S. 203 or S. 204 does not lay down any rule that further inquiry should only be directed when it is found that the judgment is perverse or foolish. As a rule of prudence, however it has often been held that the superior Court should not lightly discard the estimate of evidence appraised by the Court which heard it and should not set aside the dismissal of a complaint simply because a different view of the evidence might be taken. There must be something more than that: vide the cases of Ritbhajan v. Emperor(1) and Queen-Empress v. Chotu(2).
4. Each case has to be decided upon its own merits; and I am not prepared to set aside the order of the Sessions Judge upon the ground that he has not shown that the order of the Magistrate dismissing the complaint was perverse. He has given detailed reasons in his order and has supported it by grounds stated by him for holding that the case is one in which further inquiry should be made. It is neither opportune nor prudent to discuss those grounds and to dispose of them upon merits. Therefore, I am not prepared to interfere with the order of the Sessions Judge dated the 21st April 1927.
5. The order of Mr. Ahad, Deputy Magistrate, however, is wrong. The Sessions Judge directed further enquiry to be made, and he did not direct that the accused should be put on trial. Contrary to the directions made by the Sessions Judge, Mr. Ahad directed the accused to be summoned. In other words he has started with the trial of the accused under Chap. 17, Code of Criminal Procedure.
6. To support the course adopted by the Magistrate, the cases of Brij Kishore Ghose v. Gopal Rai(3) and In re Narayanaswamy Naidu(4) have been cited at the Bar.
7. The former is distinguishable on account of the peculiar circumstances of the case. There were counter-cases: both were dismissed under S. 203 and in both the cases further inquiry was directed to be made. One of the cases was enquired into and was again dismissed: the other case was decided and the accused were acquitted. The learned Sessions Judge, being of opinion that as there was admittedly a riot one of the cases must be tried, directed that the trial in the case, which was dismissed on further enquiry, be re-opened and the accused be put on their trial. This case has no application to the present one.
8. In the latter case of In re Narayanaswamy Naidu the observation of Wallis, J., does not support the order passed by the Magistrate. Says his Lordship:
‘Inquiry’ is now defined in S. 4(k) as including ‘every inquiry other than a trial conducted under this Code by a Magistrate or Court.’ Trial begins when the accused is charged and called on to answer and then the question before the Court is whether the accused is to be acquitted or convicted and not whether the complaint is to be dismissed or the accused discharged. These, as observed by Wilson, J., in Hari Dass Sanyal v. Saritulla(5) are questions which arise at the stage of enquiry. Therefore, an order for further inquiry directed to a Subordinate Court means that the case should be taken up again and that the question of dismissing the complaint or charging the accused, as the case may be, should be again considered and an appropriate order made as a result of such fresh consideration. It follows that a Sessions Judge or District Magistrate who considers that the accused has been improperly discharged cannot himself commit the accused for trial at Sessions under S. 437 as that would be an order to be made in the course of the further inquiry, and could only be made by the person making the farther inquiry.
9. This lays down the correct view of the law. When once a case is dismissed under S. 203, it implies that the Magistrate who took cognizance of the offence was not satisfied as to the truth of the allegations made in the complaint and that an enquiry made by him under S. 202 confirmed his suspicion. An accused person, therefore, could not be summoned under S. 204 unless there is a further inquiry held and the Magistrate's suspicion originally roused against the truth of the complaint is cleared up. In the present case, the complaint was dismissed. The case was, under the orders of the Magistrate, made over to Mr. Ahad who had not held any inquiry under S. 202, and, therefore, he could not summon the accused upon the materials on the record without having held fresh inquiry. The effect of an order dismissing a complaint under S. 203 is to restore the case to the stage under S. 202, and the further inquiry directed should be taken up from that point. Majority of the authorities on this point are inclined towards such a view: vide Sheo Narain Singh v. Ram Partap Rai(6); Ram Barai Singh v. Ram Partap Bai(7); and Chandi Misser v. King-Emperor (unreported criminal miscellaneous case No. 23 of 1926 of this High Court).
10. I, therefore, set aside the order of the Magistrate (Mr. Ahad), dated the 26th of April 1927, and direct that further enquiry be held by him as to the truth of the complaint and that summons against the accused be withdrawn. If he is satisfied after further enquiry that the case is one in which the accused should be put up on trial, he will summon the accused persons; if, on the other hand, he is satisfied that the case is one in which the accused need not be summoned he will dismiss the complaint.
11. Order accordingly.