Henderson, J.:— On the 4th June 1904 one Jogeswar Roy lodged information before the Sab-Inspector of Police at Bhagulpore that the Petitioners before us and several other persons had looted his orchard of the fruit, cut down his bamboos and set fire to his hut and illegally confined him. The Police submitted a report in B. form to the Joint Magistrate who however ordered that the report should be sent up in A. form. That was accordingly done but the Petitioners were not among the persons mentioned in the A. form re-port and sent up by the Police of trial under secs. 147, 342 and 879. The Joint Magistrate, on receipt of the amended report, passed the following order thereon: “To Babu M.M Roy (Deputy Magis-trate) for disposal”

2. On the 7th October, the Deputy Magistrate tried the persons thus sent up for trial and convicted them of certain minor offences and sentenced them to pay a fine, but expressed an opinion that the case for the prosecution had been very much exaggerated, and on the 5th December, the conviction was upheld on appeal. In the meantime, on the 10th October, the Court Sub-Inspector applied to the Deputy Magistrate for the issue of warrants for the arrest of the Petitioners and 10 other persons in connection with the same occurrence. On the following day, the Deputy Magistrate passed an order refusing to issue process on the ground that in his opinion it was unnecessary to take further action as the case had been grossly exaggerated and the punishment already imposed on the persons, whom he had tried, was sufficient.

3. Thereafter on the 23rd December, the District Superintendent of Police forwarded the record of the case already tried to the Joint Magistrate and expressed an opinion that the Petitioners should be proceeded against and mentioned that the conviction of those who had already been tried had been upheld on appeal, and upon this on the same day the Joint Magistrate made an order for a summons to issue to the Petitioners fixing 13th January last for their trial.

4. An application was then made to the Sessions Judge to refer the question of the legality of the order to this Court. It was urged before him that the order of the Deputy Magistrate refusing to issue process operated as a discharge, and further, that the whole case, that is the case of all the persons mentioned in the original inform ation to the Police had been transferred to the Deputy Magistrate and inasmuch as the District Magistrate had not withdrawn it from the file of the Deputy Magistrate, the Joint Magistrate had no jurisdiction to make the order directing summons to issue. The Sessions Judge was of opinion that the case made over to the Deputy Magis trate “was not the whole C. form, but an A. Form which the Joint Magistrate acting for the District Magistrate had originally called for” and he refused to interfere.

5. The question whether under the circumstances, the Joint Magistrate had jurisdiction is to some extent covered by authority. In the matter of Golabdi Sheikh (1), the circumstances were almost identical with those in the present case. There the Petitioners and others including one Jagira were charged before the Police with having looted a house, and the Police after making an investigation, succeeded in ‘arresting Jagira but failed to arrest the others and they sent Jagira up for trial. The case was made over to the Deputy Magistrate who, on subsequently discharging’ him, made an order stating that after careful consideration of the case he considered that there was no good ground for putting any of the other accused persons on their trial, and that he therefore recalled the warrants. Thereupon on a representation by the District Superintendent of Police, the District Magistrate directed the issue of warrants against the person who had not been arrested, and against that order a rule was issued at the instance of the persons concerned.

6. It was contended that the District Magistrate had no jurisdiction to make the order for the issue of the Warrants. The Court was of opinion that the case regarding the offence alleged to have been committed as shown on the Police-report was before the Deputy Magis trate, and that he was, alone competent on the police-repart to proceed against other persons concerned in that offence if the thought proper to do so and that therefore no further other could be passed, by the District Magistrate so long as the case, remained in his Court. The following remarks explaining the view, taken were made by the Court: “Cognizance was taken of the offence on the police-report and the case was made over to a Subordinate Magistrate and so long as the case connected with that offence remained with the Subordinate Magistrate, no other Magistrate was competent to deal with it. The case has never been withdrawn by the District Magistrate for trial by himself so that he could properly pass an other directing proceed ings to be taken against other persons. Application for the warrant against other persons accused of that offence should have been made to the Magistrate before whom the case was and to no Other Magistrate. The District Magistrate in his explanation in answer to this rule seems to think that the case only as against Jagira was made over to the Subordinate Magistrate for trial. But that in not so.”

7. The report of that case does not show the terms of the order transferring the case to the Deputy Magistrate but it may be gathered from the report that the case was submitted in the usual manner by the Police and that in the police-report, the Deputy Magistrate had before them the particulars of the persons who were alleged to have committed the offence. So far as I can see the only distinction between the case of In the matter of Golabdi Sheikh (), and the present case is that in the one the accused actually tried was discharged and in the other the accused were convicted. In the former case good and sufficient grounds were stated for not pro-ceeding against any other persons, while in the other case the, Deputy Magistrate stated reasons for not taking further proceedings against the persons who had not been arrested which seemed to indicate there were materials upon which they might properly, (if the conviction already had was right), be convicted. The, distinction, however, does not bear on the question of the jurisdiction of the District Magistrate so much as upon the propriety of the order made by the Deputy Magistrate.

8. In a previous, case Moul Singh v. Mahabir Singh (2), a complaint was made against Moul Singh and 10 others of Having committed rioting and of having looted the crops of the complainant. Of the accused persons five only, including one Brij Behari, were sent up for triai to the Sub-Divisional Magistrate Who on receipt of a police-report made an order on the 16th February for the issue of warrants for the arrest of Moul Singh and two others. On the 23rd March, the Sub-Divisional Magistrate convicted the four accused before him, and after passing sentence upon them made an order that “the other accused are not to be tried.” On appeal preferred by Brij Behari and those tried along with him having been dismissed the complainant, applied to the Sub-Divisional Magistrate for warrants against Moul Singh and two others who had not been tried. But the application was rejected as the Magistrate Considered that the punishment of Brij Behari and the others was sufficient to meet the ends of justice in the case. He did not think it nesessary to proceed further. The complainant then applied to the District Magistrate who directed that the case upon the original complaint should be proceeded with against the three offenders who had not been tried. With regard to Moul Singh and the two others for whom warrants of arrest had been issued, it was held by a Division Bench of this Court that the termination of proceedigs against them amounted to a discharge and wes therefore subject to revision under sec. 437. With regard to the other persons mentioned in the complaint who had not been tried and against whom warrants had not been issued it was held that the Magistrate had no jurisdiction to interfere unless he had withdrawn the whole matter from the Court of the Sub-Divisional Magistrate to his own Court. In Radhabullav Roy v. Benode Behari Catterjee (), these two cases were considered by another Bench. There in December 1901 one Benode Behari lodged a complaint before the Senior Deputy Magistrate who was in charge of the station during the absence of the District Magistrate charging the Petitioners and one Punchanun with an offence under sec. 504 of the Penal Code. The Senior Deputy Magistrate made the case over for enquiry and report, to another Deputy Magistrate, who after enquiry reported that there was no case except against Punchanun. On the 22nd February 1902, the District Magistrate who had returned to the station issued summons to Punchanun to appear and answer the charge under sec. 504 I.P.C, and on the 4th February he made the case over for disposal to a Deputy Magistrate who tried and convicted Punchanun. The complainant then applied to the Deputy Magistrate that the other persons mentioned in his complaint might be summoned. That application having been rejected, the District Magistrate called for the record under sec. 435 of the Code of Criminal Procedure and passed an order directing the prosecution of the Petitioners under sec. 504, I.P.C The order was not one directing further enquiry. It was held that the order was without jurisdiction.

9. The Court expressed an opinion that when once the District Magistrate had made the case over for disposal to the Deputy Magistrate it was out of his hands and he was not competent to pass any order relating to it other than an order which he might pass under Chap. XXXII of the Code of Criminal Procedure. The decision in these cases proceeded on the assumption that the entire case, that is, the case regarding the offence or offences committed according to the police-report, had in each case been transferred to the Deputy Magistrate. It is not necessary in a matter of this kind that the entire case should be transferred. Whether such a transfer has been made is a question of fact depending on the intention of the officer making the order, which intention must be gathered from the order itself. Where no reservation is made as in the cases cited and in the case before us, I should certainly conclude that the entire case (in the sense above-mentioned) had been transferred. From these authorities the following propositions applicable to the present case may be deduced: Firstly, the order made by the Deputy Magistrate in the case before us amounted to a discharge. Secondly, that the order making over the case to the Deputy Magistrate for disposal was an order making over the whole case mentioned in the original police-report to the Deputy Magistrate. Thirdly, that until the District Magistrate had withdrawn the case so made over from the file of the Deputy Magistrate to that of his own Court he had no power to make any order save an order for further enquiry under sec. 487, Cr. P.C

10. I agree generally with the views expressed in the cases cited, and I would hold therefore that the order of the Deputy Magistrate refusing to issue process on the ground that it was unnecessary to take further action, amounted to a discharge, that although the District Magistrate had power to call for the record and make an order for further enquiry, the Joint Magistrate had no power so long as the case had not been withdrawn from the file of the Deputy Magistrate (and it was not withdrawn) to make the order for the issue of summons to the Petitioners. I would set aside the order and make the rule absolute.

Geidt, J.:— The facts of this case are as follows:—

On 4th June 1904, information was lodged at the Thanah that a number of persons including the four Petitioners had committed theft of mangoes, cut down bamboos and burnt a hut belonging to Jogeswar Roy. The Police submitted a B. Form but the Magistrate on a perusal of the special diaries, ordered the Police to send up an A. Form against five specified persons. The Police accordingly submitted a formal A. From, but did not send up the persons named by the Magistrate, who accordingly issued warrants for their arrest. When the persons named by the Magistrate were brought before the Court, the case was made over to Babu M.M Roy for disposal, and they were convicted and punished. Subsequently the Court Sub-Inspector applied to the Deputy Magistrate who had tried the case for warrants of arrest against the four Petitioners and the other persons, and on 11th November the Deputy Magistrate on that application recorded the following order:

“Considering the nature of the case, I do not think it necessary to take action against other accused persons. The case was grossly exaggerated, and the punishment that has already been inflicted is quite sufficient.”

12. Meanwhile the five persons convicted appealed and their appeal was dismissed by the Sessions Judge, and thereupon the District Superintendent of Police reported to the Joint Magistrate his opinion that the four Petitioners now before us should be proceeded against, and the Joint Magistrate ordered summons to issue against them.

13. The present rule was issued to show cause why this order of the Joint Magistrate should not be set aside on the ground “that cognizance had already been taken of the case and the case transferred to the Deputy Magistrate, and the order of the Magistrate, dated 11th November, refusing to issue process against the Petitioners is still subsisting.”

14. It appears to me that the decision of the point raised in this rule must depend on the question whether the Deputy Magistrate had jurisdiction to issue the warrants applied for by the Court Inspector. If he had no such jurisdiction, his order refusing the application was inoperative. If he had jurisdiction, then it was ultra vires for the Joint Magistrate to grant processes which the Deputy Magistrate had refused.

15. It is true that in the A. Form submitted by the Police the names of the Petitioners were not mentioned but it appears to me that the order: “To Babu M.M Roy for disposal” means that the whole case was transferred, so that it would have been competent for the Deputy Magistrate to issue processes for the attendance of any persons named in the B. Form previously submitted who were shown by the evidence to be concerned in the commission of the offence which the Deputy Magistrate was trying.

16. This view is in accordance with that taken in In the matter of Golabdi Sheikh (), where it was held that the whole case was transferred, and not merely the case of the persons sent by the Police.

17. For the reasons above given I am of opinion that the case having been transferred to the Deputy Magistrate that officer alone had jurisdiction to deal with any application for summons until the case was withdrawn from his cognizance. The order of the Joint Magistrate to issue summons on the Petitioner was therefore not warranted by law, and I would accordingly set it aside, and make this rule absolute.

18. Rule made absolute.