1. In this case it appears that the petitioner Ram Ajodhya Singh sent a telegram addressed to the Magistrate of Purnea, stating that a daeoity had been committed in his house. The Sub-Divisional Magistrate, upon receiving this telegram, directed the Divisional Inspector to take steps. The police reported the allegation about the dacoity to be intentionally false and recommended the prosecution of the petitioner under S. 211/182, I.P.C On receiving this police report the learned Sub-Divisional Magistrate of Purnea called upon the petitioner to show cause why he should not be prosecuted. Thereupon, on the 23rd April 1926 the petitioner put in a petition impugning the police report, and asserting that his allegation was true. Ultimately the case was made over to Maulvi Nasir-ud-din Ahmad, Deputy Magistrate, who held a judicial inquiry and, finding the case to be false, dismissed the complaint under Section 203 of the Cr PC. He, however, passed no order directing the prosecution of the petitioner under S. 211/182, I.P.C; nor did he make any complaint under Section 195 of the Cr PC. Thereafter, the learned Sub-Divisional Magistrate of Purnea passed an order in the following terms:
Seen the order dated the 27th May 1926, of Maulvi Nasir-ud-din Ahmad, Deputy Magistrate. Complaint of the Sub-Inspector, Korha, received on 16th March 1926. Cognizance taken. Summon accused Ram Ajodhya Singh under S. 211, I.P.C, for 16th June 1926.
2. The petitioner, thereupon, filed an appeal against the said order of the Sub-Divisional Magistrate under Section 476(b) of the Cr PC, before the Sessions Judge, Purnea, who rejected the appeal and refused to move the High Court.
3. The petitioner then moved this Court in Criminal Revision No. 696 of 1926 and this Court, by an order dated the 9th December 1926, set aside the order of prosecution under S. 211, I.P.C, and held that it was the Deputy Magistrate who held the judicial inquiry, that is, Maulvi Nasir-ud-din Ahmad, who should file the complaint under Section 195(1) of the Cr PC, and not the Inspector of Police. What happened after that was, that Maulvi Nasir-ud-din Ahmad was transferred to Jamshedpur and the file was sent on to him at Jamshedpur for action to be taken. Maulvi Nasir ud-din Ahmad, thereupon, filed a complaint substantially in these terms:
Under Section 195, sub-Section (1), Clause (b) of the Cr PC. I complain that Ram Ajodhya Singh may be prosecuted under S. 211, I.P.C
4. Now it is clear that if it was a prosecution under S. 182, he would be acting quite properly under S. 195, Cl. (1), sub-S. (a); but, as he purports to act under S. 195, Cl. (1), Sub-Cl. (b), it is open be the objection that it is only the Court in question that can do so and not the particular public servant concerned. Section 559 of the Cr PC, which is a new section, provides that the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office. Therefore it seems that the proper person to have filed a complaint for prosecution was the successor of Maulvi Nasir-ud-din Ahmad in the office of Deputy Magistrate of Purnea.
5. The application, therefore, is granted, and the order summoning Ram Ajodhya Singh under S. 211, I.P.C, is set aside.
6. Revision allowed.