Kedar Nath Sanyal, On Behalf Of Me. T.M Thaddens v. Khetra Nath Sikdar And Another

Mitra, J.:— This is a Rule calling on the Chief Presidency Magistrate of Calcutta to show cause why a further inquiry should not be ordered in the case of the petitioner against Khetra Nath Sikdar and others. The accused were tried by the Fourth Presidency Magistrate of Calcutta on charges under sections 417, 420 and 511, Indian Penal Code. That Magistrate recorded all the evidence that was adduced on behalf of the complainant, and on the 6th June, directed a charge under section 253 of the Code of Criminal Procedure. The complainant thereupon applied to this Court for setting aside the order of discharge.

2. We have gone through the judgment of the Presidency Magistrate, and it appears to us that he dealt with the case not only on the questions of law discussed before him, but also on the facts. The findings of fact arrived at by him are contained in the last portion of the judgment which goto show that, on the facts, he was of opinion that no charge could be maintained against the accused.

3. The application to this Court has been made obviously under section 437 of the Code of Criminal Procedure which refers to the powers of the High Court and the Sessions Judge to direct a District Magistrate by himself or by any other Magistrate subordinate to him to make further inquiry into a case dismissed under section 203 or sub section (3) of section 204 or in the case of any accused person who has been discharged. This is a case of a discharge and if the trial had been held by either the District Magistrate or by a Magistrate subordinate to a Magistrate, the section would have applied. The section does not apply to a Presidency Magistrate. This view was taken by this Court in the cases of Debt Bux Shroff v. Jutmul Dungarwal (1) and Srimutty Brajangana Dasi v. Srimutty Probod Kumary Dasi (2) and in the unreported case of Liladhur Lowji v. Keshab Lal Magan (3). Our powers of interference exist by virtue of section 15 of the Charter Act. We cannot interfere with an order of discharge made by a Presidency Magistrate under the Code of Criminal Procedure. Section 15 of the Charter Act however gives us a limited jurisdiction. We can exercise that power only in cases of non-exercise or illegal exercise of jurisdiction. We cannot set aside the order of discharge made by the Presidency Magistrate, merely on the consideration of the evidence in the case. We are, therefore, of opinion that this is not case in which we may exercise our powers under section 15 of the Charter, and direct a further inquiry. The Rule is accordingly discharged.

4. Rule discharged.