The complaint in the present case was filed before Mr. D. Dutt, Deputy Magistrate of Howrah, on the 10th May 1924, and he on examining the complainant was of opinion that it was apparently a petty altercation and he made an order that Babu H.P Roy Chaudhury, an Honorary Magistrate should enquire into it and submit a report. This order was evidently passed under the provisions of sec. 202, Cr. P.C In ordinary course on the report of Mr. H.P Roy Chaudhury being submitted Mr. D. Dutt could have either dismissed the complaint or issued process. Matters, however, took quite a different turn. After several adjournments in consequence of the report not having arrived, Mr. D. Dutt on the 1st August 1924 passed an order which ran as follows:—“The cross-case has been disposed of by Mr. A.C Bose. This case is therefore sent to him for disposal.” It may be said that there was a cross-case which had in the meantime been disposed of by the Deputy Magistrate Mr. A.C Bose. On the 2nd August 1924 Mr. A.C Bose looked into the report of Mr. H.P Roy Chaudhury, Honorary Magistrate, which it is said had already been submitted before Mr. D. Dutt and which evidently had been sent along with the papers to Mr. A.C Bose, and finding from the report that there was no case against the accused persons dismissed the complaint under sec. 203, Cr. P.C In doing so it may be stated Mr. A.C Bose referred also to the fact that he had disposed of the cross-case. Thereafter the complainant filed a petition for revival, the proceedings in connection with which need not be referred to in detail, with the result that ultimately Mr. A.C Bose issued summons against the Petitioner.
The validity of the proceedings in connection with their transfer from the file of Mr. D. Dutt to that of Mr. A.C Rose is challenged on behalf of the Petitioners and it is contended that Mr. A.C Bose was not properly in seisin of the case and any order issuing process passed by him must accordingly be held to be an order passed without jurisdiction.
We have already stated that Mr. D. Dutt on receipt of the complaint had chosen to proceed under the provisions of sec. 202, Cr. P.C When he had done so evidently he thought of proceeding under sec. 192(1), Cr. P.C, as well. That sub-section empowers the Magistrate to transfer a case for enquiry or trial, but it does not empower him to transfer a case simply for the purpose of considering the report of an investigation under sec. 202, Cr. P.C, which he has himself ordered. In the present case Mr. A.C Bose did not proceed under sec. 202, Cr. P.C, but all that he did was to act upon the report of the Honorary Magistrate which had been called for under the provisions of sec. 202, Cr. P.C, by Mr. D. Dutt and without examining the complainant lie dismissed the complaint under sec. 203, Cr. P. as stated above.
We do not think that the provisions of sec. 192 or of sec. 202 entitled a Magistrate after lie has proceeded under the latter section to make an order under the provisions of the former section transferring the case for the purpose of being dealt with under sec. 203 or sec. 204, without a fresh investigation as contemplated by sec. 202, Cr. P.C Mr. A.C Bose was in our opinion not in proper seisin of the case as the transfer to him at that stage and in the circumstances stated above cannot be justified under any provision of the law. His subsequent order issuing process against the accused must accordingly be held to be without jurisdiction.
The Rule, therefore, is made absolute. The order issuing process is set aside, and it is directed that the complaint be put up before a Magistrate competent to deal with it, who on examining the complainant afresh will proceed to pass proper orders in accordance with the provisions of the law.
H.C