The Judgment of the Court was as follows:—
Bartley, J.:— This is a Reference under sec. 438 of the Code of Criminal Procedure made by the Sessions Judge of Pabna and Bogra. The facts of the case are that a complaint against the Petitioner and some other persons, in written form, signed by two persons,—the Opposite Parties in this case,—was lodged before the Sub-Divisional Officer of Serajganj. On receipt of the complaint the learned Magistrate examined one of the two persons whose name was signed to it and issued process under sec. 342 of the Indian Penal Code. The learned Judge is of opinion that the order summoning the Petitioners under sec. 342 of the Indian Penal Code was had in law. The reason he gave is that the learned Magistrate examined only one of the Opposite Parties, though according to sec. 200 of the Code of Criminal Procedure he should have examined both of them before issuing process.
We are unable to accept the Reference made by the learned Judge. The position appears to us to be this:—A written complaint signed by two persons is not contemplated by the Code of Criminal Procedure. But, however, invalid it is in form, it is a petition of complaint. In the present case the learned Magistrate examined one of the two persons who signed that complaint. He had then before him an allegation made orally to him with a view to his taking action under the Code of Criminal Procedure that some persons had committed an offence. In other words, he had before him a complaint within the meaning of sec. 4(h) of the Code of Criminal Procedure. On that complaint he had jurisdiction to issue process which he did and we are unable to agree with the view taken by the learned Judge that an order summoning the accused was had in law.
On the technical point it is clear that if a written complaint is made ostensibly by two pet sons, the Magistrate has jurisdiction to examine one of them and proceed on that examination. Should it be necessary to proceed afterwards on the complaint of the second signatory, there is no bar to such action being taken.
This Reference is accordingly rejected.
Rau, J.:— I agree.
P.C