1. The petitioner, Ram Saran Singh, filed a complaint on the 24th of July, 1924, charging the Sub-Inspector of Worseleyganj and a constable of the Thana with offences under sections 342 and 504 of the Indian Penal Code. Possibly on the allegations as they were expressed, section 247 I.P.C would have been more applicable and the charge was of a serious nature. The burden of the complaint was that on the 20th July the complainant who was the newly appointed Sir Punch of a circle within the Police jurisdiction was called to the Thana on official business connected with his office. When he got there the Sub-Inspector informed him that he had been accused by one Barhu Sahu of theft, and the Sub-Inspector put him under arrest refusing bail although Ram Saran Singh had with him a person ready to stand bail by name Santokhi Singh. The constable on the direction of the Sub-Inspector handcuffed the complainant and put him in the hajut where he was kept from 9 A.M, on the 20th till 9 P.M on the 21st; at that hour an order from the Magistrate for Ram Saran's release had been brought to the Thana. On this complaint the Magistrate passed the following order:—
“I think a local enquiry by a First Class Magistrate is necessary. Accordingly I direct a local enquiry under section 202 by a Magistrate of the First Class from Sadar … Send copy of the complaint and order to S.P”
2. Later on, however, it appears that the Magistrate himself held a local enquiry, having previously notified to the Sub-Inspector who had been accused that he might be present if he so desired. The enquiry lasted several days. On the 8th August, 1924, the Magistrate dismissed the complaint under section 203 of the Cr PC, giving nine reasons for so doing. In the Sessions Court a petition for directing further enquiry was rejected in an elaborate order reviewing the case.
3. It appears that in the Magistrate's Court the accused was allowed to be present to cross-examine the prosecution witnesses and to advance arguments.
4. The petitioner comes to this Court with a prayer that further enquiry be directed. His grievances are (a) that the Magistrate did not record reasons when passing the order under section 202 of the Cr PC; (b) that the accused should not have been allowed to cross-examine the witnesses, and (c) that if the complainant chad a prima facie case supported by substantial evidence, the Court had no option but to issue process. It is certainly not a correct procedure to defer the issue of process and order an enquiry without recording reasons. It is also as a rule undesirable that the enquiry should be prolonged by cross-examination and arguments inter partes, the reason being that if this is necessary it is obviously advisabla to follow the procedure of a trial and for that purpose to issue process at once. At the same time, it appears to me that if a Magistrate having the duty of making an enquiry under section 202 can make his enquiry more complete and can inform himself of the facts more fully by having the accused in Court, there is no reason either in common sense or in law why the accused should not be called to the enquiry. But still I do not recede from the position that cross-examination and arguments inter partes are out of place in an enquiry into the truth of the complaint. The questions are really first whether the departure from the strict letter of the law constitutes an illegality, and secondly, whether if it is not an illegality but a mere irregularity this Court should in the exercise of its discretion direct a further enquiry. The learned Vakil for the petitioner has not put before me any authority for the proposition that these departures from the letter of the law are other than an irregularity. He has quoted a case of 1856—Baidya Nath Singh v. Muspratt(1). In that case there was a complaint against the Assistant Superintendent of Police and other Police Officers and the Magistrate sent the complaint for enquiry to that Assistant Superintendent of Police. It is perfectly obvious that such an order was highly illegal and improper. That is not the case that is before me now. Another case quoted has been Balai Lal Mookerjee v. Pashupati Chatterjee(2). In that case the departures from the provisions of Ch. XVI of the Code of Criminal Procedure are described as irregularities and as procedure inconsistent with the scheme of the Legislature. The irregularities there complained of were similar to those now put forward by the petition and the Court expressly held that it is a matter of discretion whether in such circumstances the Bale should be made absolute. That marks the point at which authorities cease to have much weight, as each case must be decided on its own merits when we come to the question of discretion. In the present case on a cursory glance I notice that most of the points on which the dismissal of the complaint is founded are points that might have equally well been made by the Magistrate in the absence of the accused and the accused's Pleader. The dismissal of the complaint appears to me to be founded rather on the weakness of the prosecution case than on the strength of the defence. The learned Sessions Judge gave great attention to the case and the length of his order is even made a ground of complaint by the learned Vakil for the petitioner. On the contrary it appears to me to be clear that the learned Sessions Judge appreciated the serious nature of the case and gave it careful attention, and I notice that be goes to the length of finding that the complaint is not only untrue but even malicious. In such circumstances it appears to me to be out of question to direct a further enquiry.
5. The petition is dismissed and the Rule is discharged.
6. Petition dismissed.
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