1. This case raises a question of importance relating to the jurisdiction of a Magistrate to issue process in a criminal case.

In the Or. P. C. (Act V of 1898 as amended) it is provided:

2. Section 202(1).---"Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a Police Officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint:

3. Provided that no such direction shall be made:

(a) unless the complainant has been examined on oath under the provisions of section 200, or (6) where the complaint has been made by a Court under the provisions of this Code.

4. Section 203.---

"The Magistrate, before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of any investigation or inquiry under Section 202, there is in his judgment no sufficient ground for proceeding, In such case he shall briefly record his reasons for so doing."

5. On the other hand, if the Magistrate is of opinion that "there is sufficient ground, for proceeding" it is his duty to issue process on the person or persons against whom the complaint has been preferred: Sections 190, and 204.

6. The material facts are as follows:

7. On the 5th March 1925, one Subal Chandra Namadas laid a complaint in writing before the Magistrate at Tangail that, three named persons " and about 20others" had allowed their cattle to graze on kalai growing in a field in the complainant's possession, and also had taken away, some kalai from the field. Upon this complaint Mukram Pramanik and Ibrahim Khan, two of the three persons whose names were mentioned in the complaint, were duly tried by a Second Class Magistrate at. Tangail under Section 426 of the Indian Penal Code, and on the 2nd of September 1923, were acquitted. Subsequently, on September 10th, 1925, the complainant preferred another complaint in writing before a First Class Magistrate at Tangail against the petitioners Rostam, Ahadullah, Kalimuddi and "others, 23 in all," that they had let loose 48 cattle on the complainant's field and "caused a loss of Rs. 30. I filed case against two accused but they have been ,: acquitted."

8. The Magistrate upon this complaint: issued a summons to Ahadullah and another; person to answer a charge under Section 42tv Indian Penal Code. The Sessions Judge of Mymensingh, being of opinion that the Magistrate had no jurisdiction to issue process upon the petitioners so long as the...acquittal of the persons who already had; been tried upon the same charge and on; the same facts stood good, has referred the matter to the High Court under Section 438, Cr. P. C. The question to be determined is whether the Magistrate was justified in law in issuing process upon the petitioners.

9. Now, under the Cr. P. C. a wide discretion is given to Magistrates with respect to the grant or refusal of process, and in the interest of the community generally it is essential that Magistrates should be vested with an ample discretion in respect of the issue of process. Except as otherwise provided by Statute anybody is entitled to prefer a complaint in a Criminal Court, and in India, where the Grand Jury system does not exist as an additional shield to innocent persons against whom unfounded complaints are laid in a Criminal Court, it is specially necessary, as is well stated in the Oudh Criminal Digest (page 7) that

" caution and discretion should be used in issuing summonses. An accused person ought not to be dragged off to answer a charge merely because a complaint has been lodged against him."

10. But in this matter a Magistrate's discretion, though wide, is not unfettered. In memorable words the late Lord Halsbury laid down the course which a Magistrate ought to follow in exercising the discretion with which he is entrusted.

"An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and 'discretion' means when it is said that something is to be clone within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion Rookes case 5 Rep. 100a; according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself"

Sharpe v. Wakefield ( 2(1891) A.C. 173 : L.J.M.C. 73 : 64 L.T. 180 : 39 W.R. 551 : 55 J.P. 197.

11. Thus, in determining whether process ought to issue, a Magistrate must proceed according to the provisions of the Code, and if, after carrying out the instructions therein contained, he is of opinion upon the materials before him that a prima ¦facie case has been made out, he ought to issue process; and in such circumstances he is not entitled to refuse to issue process merely because he thinks that it is unlikely that the proceedings will result in a conviction If the Magistrate were to refuse to grant a summons on that ground it would mean either that he was trying out the merits of the case at a preliminary stage in the proceedings or was following a process of guesswork and speculation; and neither of these things is he permitted to do.

12. If upon the facts alleged by the complainant and upon the assumption that the statement by the complainant is true no offence is disclosed, it is, of course, the duty of the Magistrate to dismiss the complaint. Again, if the Magistrate would not be justified in issuing process unless he could place reliance upon the statement which the complainant has made under Section 200--- and this is the ordinary case---then, if he distrusts the statement made by the complainant, or if he distrusts the complainant's statement, and the distrust---though not sufficiently strong to warrant him in acting upon it without further inquiry---is confirmed as the result of an inquiry or investigation under Section 203, in either case also it is his duty to dismiss the complaint: Baidya Nath Singh v. Muspratt 14 C. 141 : 11 Ind. Jur. 226 : 7 Ind. Dec. (n. s.) (3).

13. On the other hand, if the Magistrate were to come to the conclusion that the facts alleged by the complainant disclose an offence, and, in his opinion, there is no ground for distrusting the complainant, could it be contended in reason or equity that the Magistrate was not justified in issuing a summons, merely because some other persons had been tried and acquitted-upon the same charge and the same facts? Surely not; for inter alia it may be that at the previous trial the Magistrate had not correctly appraised the value of the evidence, or for some other reason the order of acquittal cannot be supported. Kokai Sardar v. Meher Khan 7 Ind. Cas. 932 : 37 C. 680 : 11 Cr. L. J. 541 and Emperor v. Ghure 22 Ind. Cas. 984 : 36 A. 168 : 12 4 L. J. 231 : 15 Cr. L.J. 200.

14. It is unnecessary in this case to consider the interesting and difficult question as to whether, and, if so, in what circumstances,' a Magistrate is entitled to take into account the bona fides of the complainant in considering whether there is sufficient ground for issuing process, and I refrain from doing so. It is settled practice, however, that if the Magistrate, having followed the procedure laid down in the Code, has exercised a judicial discretion as to whether he ought to issue process or not, the High Court will respect his decision, and will be slow to disturb the order that he has passed.

15. The learned Sessions Judge in his report on this case has expressed the opinion that the Magistrate had no jurisdiction to issue process against the petitioners so long as the acquittal of the persons accused of being participators in the same offence stands good. I am of opinion that this view is unsound and cannot be sustained. In support of his opinion the learned Sessions Judge cited Panchu Singh v. Umor Mahomed Sheikh 4 C.W.N. 346.; Bishun Das Ghose v. King Emperor 7 C.W.N. 493. and In re Azim Sheikh 7 C.L.J. 249 : 7 Cr. L.J. 318.

16. The report of Panchu Singh v. Umar Mahomed Sheikh 4 C.W.N. 346, however, is not satisfactory, and it is not clear whether process was issued against both the accused, or whether it was intended that the charge should be dismissed against both of them. In re Azim Sheikh's case 7 C.L.J. 249; 7 Cr. L.J. 318, is against the view which the learned Sessions Judge recommends to this Court. In that case one Bachauddi preferred a complaint against Maghu and Azim for having trespassed upon his land. Process was issued against Mighu, who was tried and acquitted. Subsequently a summons was issued against Azim upon the same charge, and the order directing the issue of the summons upon Azim was referred to the High Court with a recommendation that it should be set aside on the ground that the Magistrate had no jurisdiction to pass such an order.

17. The reference was rejected, and Mookerjee, J., distinguished Panchu Singh's case 4 C.W.N. 346, on the ground that

"in that case the Magistrate's order was construed as indicating a desire to terminate all proceedings relating to the matter in his Court and it was held that the District Magistrate could not interfere under Section 437."

I confess that I am unable from the report to ascertain the facts upon which Panchu Singh's case 4 C.W.N. 346, was decided, or the ground of the decision. I cannot, therefore, regard it as an authority. It appears to me, however, that when A has been tried and acquitted the expression of a desire by the Trial Judge that further criminal proceedings should not be taken in connexion with the subject-matter of the trial cannot operate as a bar in law to the issue of process against B who was neither tried nor acquitted at A's trial.

18. Bishun Das Ghose v. King Emperor 7 C.W.N. 493. and Kedar Nath Biswas v. Adhin Manji 7 C.W.N. 711, were cases in which the accused were charged with various offences, including the offence of unlawful assembly in which it was necessary that at least five persons should jointly be implicated. After the trial and acquittal of some of the accused there was obviously no "sufficient ground" in the circumstances for proceeding afterwards against the petitioners See Kokai Sardar v. Mehar Khan 7 Ind. Cas. 932; 37 C. 680; 11 Cr. L. J. 541. It is further urged that where A and B are alleged to be concerned jointly in committing an offence, and A is tried and acquitted, and in the order of acquittal the Magistrate states that in his opinion, the prosecution case is false, such an order ousts the jurisdiction of a Magistrate subsequently to issue process against B in respect of the said offence until the acquittal of A has been set aside see Bishun Das Ghose v. King; Emperor 7 C.W.N. 493. and Kedar Nath Biswas v. Adhin Manji 7 C.W.N. 711.

19. Those cases are distinguishable from the present case on the facts, for the learned Magistrate in the present case found

"that the cas9 seems to be purely a land dispute of civil nature, with a long history having equilibrium for each side."

But, in my opinion, the above proposition regarded as a statement of law, with all due deference to the learned Judges who laid it down, is not only unsound in principle, but is opposed to the decisions of this Court in Kokai Sardar v. Mehar Khan 7 Ind. Cas. 932 : 37 C. 680 : 11 Cr. L. J. 541; Manindra Chandra Ghose, v. Emperor 23 Ind. Cas. 1002 : 41 C. 754 : 18 C.W.N. 580 : 15 Cr. L.J. 402 and Emperor v Ghure 22 Ind. Cas. 984 : 36 A. 168 : 12 4 L. J. 231 : 15 Cr. L.J. 200.

20. The true view appears to be that although in such a case the plea of autre fois acquit would not be available to B, and the acquittal of A would not bar the issue of process against B, the fact tint another person accused upon the same facts of having been implicated in the same offence has been acquitted may properly be taken into consideration by the Magistrate in determining whether upon the materials before him there is "sufficient ground for proceeding" to issue process upon the person against whom the complaint has been preferred.

21. In each case the Magistrate in deciding whether process should issue must exercise a judicial discretion having regard to the materials duly placed before him. In the present case the learned Magistrate, having come to the correct conclusion that the acquittal in the previous trial was not a bar to the issue of process against the petitioners, appears straightway to have ordered that process should issue without paying any regard to what had taken place in the earlier proceedings. That, we think he, ought not to have done; and accordingly we set aside the order that process should issue against the petitioners, and in the circumstances we think that no further proceedings should be taken against the petitioners.

Mukerji, J.

22. I have read the judgment of my learned brother in this case, and I agree in the observations he has made, the conclusion he has arrived at, and the order he has passed.