Abdulla Mondol And Anr. v. The King-Emperor Opposite Party.

This was a Rule calling on the District Magistrate of Hughly to show cause why the order, dated the 6th January, 1913, should not be set aside.

Information was given to the Police by the complainant Nasirul Huq at the thana of Dadpur in respect of the theft of a bullock belonging to his brother-in-law Panchkoii Sheikh by the Petitioners Abdulla Mondal and Neamul Huq. The Police, on such information being recorded, submitted a report to the Magistrate in which they stated that the case against the accused might be true but that the evidence to prove it was not forthcoming. Thereupon the Sub-Divisional Magistrate made over the case to Mr. N.K Bose, an Honorary Magistrate, for the purposes of enquiry and report. The Honorary Magistrate examined a number of witnesses on both sides and then submitted a report to the Sub-Divisional Magistrate in which he expressed his opinion that it was amply proved that the bullock had been purchased by Abdulla and that therefore he could not recommend a trial of the accused under sec. 379, I.P.C On receipt of this report, the Sub-Divisional Magistrate ordered the issue, of summonses against the Petitioners and in his order remarked that the purchase of the animal by the accused should be established in Court.

The proceedings of the Sub-Divisional Magistrate are open to attack on grounds of law and fact alike. A report having been submitted by the Police under sec. 173, it was open to the Magistrate to take cognizance of the case under sec. 190, cl. (b) of the Criminal Procedure Code. But he did not choose to do so and proceeded to make over the case for enquiry and report as though the matter he was dealing with was one on a complaint under sec. 201 of the Code. The proceedings before the Honorary Magistrate thereafter, so far as they bear on the case based on a police report, were not in consonance with the provisions of the law. We might have been disposed to overlook the proceedings that were erroneously had before the Honorary Magistrate and should have treated the order of the Sub-Divisional Magistrate for the issue of summonses against the accused persons as one passed under sec. 190, cl. (b), had not the Petitioners based their contention for the dropping of these proceedings on another ground as well. They say that the facts disclosed before the Honorary Magistrate do not justify the trial of the accused persons. Ordinarily we would not be disposed to interfere with the discretion of the Magistrate if it were not for exceptional Circumstances, namely, the examination of a number of witnesses before the Honorary Magistrate having already had the effect of causing the two parties a great deal of trouble. If these proceedings before the Magistrate had disclosed facts which led us to believe that a trial would be in the interest of justice, we should have no hesitation in allowing the proceedings to go on. But the inquiry by the Police as well as by the Honorary Magistrate disclosing the fact that there is no case against the Petitioners that could be rightly tried, and the Sub-Divisional Magistrate not having given sufficient ground for not agreeing with the Honorary Magistrate and the Police, we are not disposed to allow the proceedings to go on.

The order, therefore, is that this Rule be made absolute, the order of the Magistrate, dated 6th January, 1913, set aside and the proceedings stayed. If the Petitioners are on bail, they will be discharged from their bail.

Rule made absolute:

Proceedings quashed.