1. This is an application against the order of the Sub-Divisional Magistrate of Nawadah, dated the 29th September 1921, directing the petitioners to be summoned under sections 454, 380, Indian Penal Code upon the complaint of one Bundi Lal, dated the 3rd of September 1921.

2. Bundi Lal was a servant of the late Raja of Singer, in the District of Gaya, who died in the month of September 1920. The petitioners are the servants of the sister's son of the late Raja except petitioner No. 2 who disclaims all concern and is described as the nephew of Geno Singh and petitioner No. 3 is the brother of petitioner No. 1, Biso Ram. It is undisputed that the petitioners' master, Raja Kesho Prasad Narain Sahi, is the legal heir of the deceased and is now living in Singer.

3. The opposite party, Bundi Lal and others, claim to be trustees of an idol, to whom it is alleged all the properties of the Raj have been bequeathed by a Will executed by the late Raja. Probate of the Will has been applied for and the proceedings in connection therewith are still pending. Raja Kesho Prasad Narain Sahi has entered caveat in those proceedings and disputes the Will.

4. The dispute between the parties has naturally led to an attempt on their behalf to seize possession of the properties and consequently the several usual criminal proceedings under the preventive Sections of the Cr PC, namely, 107, 144, etc., have been instituted. Papers of some of these proceedings have been handed over to me by the learned Counsel on behalf of the petitioners:—

(1) The complaint lodged by one Mathura Prasad, servant, of the trustees, against the petitioner Biso Modi and others which was disposed of by the order of the Sub-Divisional Magistrate of Nawadah, dated the 17th May 1921. That order is in the following words:—

“Mistake of law. Section 448.” On the 27th of May 1921 the Magistrate ordered “to return the keys to Biso Modi the person from whom they were taken.”

(2) On a complaint of Bundi Lal, the present complainant, against Raja Kesho Prasad Narain Sahi and others, the order of the Magistrate of the 1st of February 1921 was “I do not think that there is a fear of the breach of the peace now.”

(3) In a case instituted under Section 107 of the Cr PC, at the instance of Bundi Lal, complainant v. Raja Kesho Prasad Narain Sahi, on the 1st of April 1921 the Magistrate passed the following order:—

“The main reason for apprehending a breach of the peace was the continuance of the collections on behalf of the 1st party and (Bundi Lal) and attempts on their behalf to possess themselves of the Kutcherry. As to the collection, as I have remarked in another order, they are only authorised to represent the estate in pending suits, and on these grounds I have refused to return the Zemindari papers to them. As to the Kutcherry and its contents it has been attached for the purposes of the case into which I inquired on the 1st January. There is, therefore, no fear of a breach of the peace. Proceedings dropped and accused discharged under Section 119 of the Cr PC.”

(4) In a proceeding started at the instance of Raja Kesho Prasad Narain Sahi as petitioner, the Magistrate recorded the following order on the 17th of January 1921:

“There are two portions in the order complained against (1) with regard to the Kutcherry, and (2) with regard to the residential portion. With regard to (1) the 1st party (Bundi Lal and other tenants) are said to have instituted a probate case and the opposite party have entered a caveat. This matter might, therefore await disposal of the probate application and both pardes prevented from doing anything with regard to the Kutcherry until that application is decided.

“As regards the second point, the Sub-Divisional Officer says that the second party are at present in actual possession of the inner apartments and so may be left in possession until the District Judge on the probate application otherwise holds. Call upon the first party to appear on the 25th January why an order in the above terms should not be passed; call for record and ask Sub-Divisional Officer to state whatever observations he has to make on the grounds of motions and on the above remarks. Sd. B.N Roy, A.D.M”

5. The parties were heard and the Magistrate recorded his order on the 25th January 1921. That order gives the history of the dispute between the parties, and it is needless to quote the entire order, except the concluding paragraph, which runs as follows:

“As the District Judge's decision in the probate case will settle the dispute, the petitioner clearing out if probate is granted on proof of the Will or the opposite party clearing out if the Will be not proved to be genuine, it is best for the Criminal Court to await such decision and not disturb the status quo ante. I accordingly set aside the Sub-Divisional Officer's order and direct, under Section 144, that the petitioner be permitted to live in the inner apartment which has been found to be in his possession, that the Kutcherry be kept locked and both parties be prevented from having access to anything contained in any of the apartments appertaining to it, that the Thakurghar or temple in the outer courtyard be kept open only for any One to worship and that a Police constable be deputed at the expense of the petitioner to see that the above order is given effect to until the decision of the probate matter, on receipt of which the Magistrate will cause compliance with such decision. It is expected that such decision will be given within two months. Return records at once to Sub-Divisional Officer.”

6. So far back as the 1st of January 1921, a complaint was lodged by one Raj Karan Singh, servant of Bundi Lal, the person complaining against the present petitioners, charging them with having entered the courtyard of the Thakurghar at Singer and of having broken open the lock of the room in which were kept the collection papers belonging to Patwari Beni Lal and of having removed the articles belonging to the complainant's master from other rooms of the building.

7. The accused were summoned under sections 454, and 380, Indian Penal Code. As the Sub-Divisional Officer of Nawadhah had held local enquiry into the case, he reported to the District Magistrate to have the case made over to some other Magistrate for trial. Accordingly, the case was made over to the Sub-Divisional Officer of Gaya.

8. On the 19th July 1921 a petition was filed on behalf of the then complainant, Raj Karan Singh, detailing the several criminal cases which arose between Raja Kesho Prasad Narain Sahi and the trustees and the complaints relating to the properties of the deceased Raja and stating that those cases were all decided in favour of Raja Kesho Prasad Narain Sahi, and that there was no likelihood of the witnesses deposing in favour of the complainant.

9. Consequently, he sought permission to withdraw from the prosecution. The Sub-Divisional Officer refused to act upon it on the ground that he had no power to permit withdrawal of a warrant case under Sections 380 and 454, Indian Penal Code. He, however, granted time to the petitioner to move the District Magistrate for withdrawing the case. Accordingly, the complainant, Raj Karan Singh, filed a petition next day in the Court of the Sub-Divisional Magistrate repeating what he had said in the first petition and adding that the accused opposite party (petitioners) “have come into possession of the entire Singer estate and all the raiyats are on their side,” and that the charge against the petitioners was brought at the instance of Bundi Lal who “it seems has no concern with the estate and has been trying to oust the real maliks from the possession,” and that the case was of a civil nature.

10. The petition was directed to be put up before the latter officer who recorded the following order: “This is a complaint case. The petition is allowed. To the Sub-Divisional Officer for disposal.”

11. On receipt of the order of the District Magistrate, the Sub-Divisional Magistrate recorded the following order on the 2nd of August: “Seen the petition filed before the District Magistrate and the latter's order dated the 25th July 1921 passed therein. A warrant case cannot be with, drawn without the permission of the District Magistrate. The case will proceed. Summon witnesses for 18th August 1921.”

12. On the 29th August 1921 the Sub-Divisional Officer of Gaya examined three witnesses: (1) Mr. Reuben, the Sub-Divisional Officer of Nawadah, (2) Raj Karran Singh and (3) Beni Lal, and adjourned the case to the 1st of September, on which date a petition was filed by Ganga Prasad, Bundi Lal and others, who claimed to be the trustees of the properties and master of the complainant Raja Kesho Prasad Narain Sahi, alleging that the complainant was gained over and praying that they may be allowed to step in his shoes and continue the prosecution.

13. The petition was naturally rejected, as third parties could not be allowed to intervene. The Magistrate observed that the applicants may file a petition of complaint of their own if they like before a proper Court. Further hearing of the case then took place, and on the next day the Magistrate passed an order discharging the accused on the ground that the complainant had gone back upon his deposition which he had made before the Sub-Divisional Magistrate of Nawadah and now stated that he had no personal knowledge of the facts. The case was not likely to result in a conviction. He, however, remarked that the trustees might, if they like, file a fresh petition of complaint. The case was accordingly withdrawn and the accused persons discharged under Section 53 of the Cr PC.

14. Acting upon the suggestion of the Magistrate, Bundi Lal, one of the trustees filed a fresh complaint before the Sub-Divisional Officer of Nawadah, giving the circumstances in which the first prosecution failed and the accused were discharged. The Magistrate heard both the parties upon the question as to whether this was a proper case in which the complaint could be entertained. He passed his order, overruling the objections of the accused petitioners, and directing them to be summoned under sections 454 and 380, Indian Penal Code.

15. The main ground upon which the Magistrate has passed his order summoning the accused is, that the order of discharge passed by him in the former case dated the 2nd of September 1921, did not debar him from summoning the accused, and that Section 403 of the Cr PC does not apply to it inasmuch as the explanation to that section saves an order of discharge of the accused but the Magistrate would not permit the complainant to withdraw the case.

16. The complainant, Raj Karan Singh, applied to withdraw the case until he was directed by District Magistrate to do so. The District Magistrate's order of the 21st July was obviously a permission to withdraw the complaint and whatever the views of the Magistrate might have been on the 29th of August that he was not bound to carry out his order, he did accept it on the 2nd of September when he actually permitted the complainant to withdraw the prosecution.

17. Now, if the order of the Magistrate was wrong, the first complaint has not been properly withdrawn, and in that case he should have proceeded upon the complaint the seisin whereof had been withdrawn from him and was handed over to the Sub-Divisional Magistrate of Gaya. If, on the other hand, the order of withdrawal is a valid one, it could only be passed under section 494, read with section 495 of the Cr PC, for so long as the first case did not validly terminate the Magistrate had no right to start prosecution on the same facts at the instance of any other person.

18. An accused person cannot be summarily tried in several Courts on the same facts, although the complainants in the several cases may be different, I will, therefore, assume, for the purposes of this case, that the order of discharge of the 2nd of September passed by the Magistrate was a valid one.

19. True it is that an order of discharge under section 494(a) or under section 253 in a warrant-case does not necessarily prevent the Magistrate from taking cognizance of a complaint on the same facts, but an order of discharge cannot be set aside and prosecution started afresh unless there are new materials before the Magistrate which were not before him formerly and upon those materials there is a possibility of a conviction of the accused persons.

20. I have, therefore, carefully considered the history of the litigation and the complaint petitions which virtually are based upon the same facts. The Sub-Divisional Magistrate of Gaya had already examined three witnesses on behalf of the prosecution. Only a few more witnesses out of these named in the complaint petition were not examined. Beni Lal, Patwari, whose bastas containing collection papers were said to have been looted by the petitioners, was already examined before the Magistrate.

21. Now, having the evidence before him, the Magistrate was of opinion that there was no likelihood of the prosecution resulting in the conviction of the accused. The fact that the complainant was won over did not prevent the Magistrate from going on with the prosecution in a warrant-case, but the Magistrate was evidently of opinion that the evidence laid by the prosecution was not sufficient to convict the accused persons. The opinion of the Sub-Divisional Officer of Gaya, expressed on the 2nd of September, was one formed upon the estimate of the evidence then produced before him.

22. In the present complaint before the Magistrate nothing has been said in the complaint petition that there is a chance of giving better evidence. On the other hand, the present complainant Bundi Lal, has definitely stated that he was not an eye witness to the occurrence. Therefore, upon the complaint that has now been lodged before the Magistrate it was obvious that the Magistrate was not justified in summoning the accused persons.

23. The statement of Raj Karan Singh, contained in the petition of the 20th of July filed before the District Magistrate, that all the properties appertaining to the Raj are in possession of the petitioners' master, Raja Kesho Prasad Narain Sahi, has not been controverted in the present complaint petition. If that is so, it is impossible to conceive that a case under section 380, read with section 454, Indian Penal Code would lie. The dispute between the parties is one relating to the succession of the estate of the late Raja of Singer.

24. The proceedings under the preventive sections of the Code of Criminal Procedure all terminated in favour of the master of the petitioners and these proceedings arose out of a dispute as to the possession of the Garh and the Thakurgarh which is the subject matter of the present complaint. The District Magistrate more than once has held that the Criminal Court is not the proper forum where the dispute of such a nature between the parties can be decided. No breach of peace has occurred, nor was it ever apprehended. No not has taken place. Raja Kesho Prasad Narain Sahi has managed somehow or the other to be in possession of the properties and he can be ousted only in the course of law.

25. This was pre-eminently a fit case for invoking the aid of the salutary provisions of Act XIX of 1841, known as the Act for the protection of moveable and immoveable property against wrongful possession in cases of successions, and which I for brevity sake call the Curator's Act.

26. The title of the Act is significant, that is, the object of it is to protect the property appertaining to an estate of this kind in case of a dispute as to succession. The death of the Raja took place only three months ago, and an application under the Curator's Act could be made within six months of the death of the late Raja.

27. That Act in some respects stands in a similar position to Section 145 of the Cr PC with respect to certain specified properties, whereas its scope is larger, inasmuch as it embraces all properties moveable and immoveable, and once for all it settles the right to hold possession of the property summarily directing the other disputants to seek their remedy in a proper Court and unless that were done the danger to a breach of the peace will not be satisfactorily solved with respect to the estate in question.

28. The proceedings are, therefore, quashed, and I recommended that an action under that Act be taken.

29. Proceedings quashed.