Inderjit Singh and others vs Thakur Singh

This is a rule calling upon the Magistrate of the District to show cause why the order complained of in this case should not be set aside on the ground that the Magistrate had no jurisdiction to make an order reviving the proceedings after his predecessor had directed them to be dropped. The order complained of is an order of the District Magistrate, dated the 17th of November last, setting aside an order of his predecessor in office, dated the 25th of September, which runs thus :--

I do not think a case against the absconders will stand. Further proceedings therefore will be stayed.

The ground upon which the Petitioners ask us to set aside the order of the 17th of November setting aside the order just quoted above, is that the District Magistrate had no power to set aside the order of his predecessor and direct the arrest of the Petitioners.

The learned District Magistrate has submitted a written explanation and has instructed Babu Lal Mohan Das to show cause on his behalf. Both in the written explanation and in the cause shown it is contended that the order of the 17th of November which the Petitioners ask us to set aside is not a judicial order but is an executive order which set aside the order of Mr. Mullik, the Officiating District Magistrate, who made the previous order; and it is further contended that that order also was an executive order and not a judicial order. No reason, however, is assigned why we should treat these two orders as executive orders and not as judicial orders. The previous order, namely, the order of Mr. Mullik, dated the 25th of September, was passed upon an application being made by certain persons interested on behalf of the prosecution asking the Magistrate to direct the Police to arrest the accused and proceed with the case and apparently also upon the case being referred to the District Magistrate by the Deputy Magistrate who had committed one of the co-accused for trial to the Session, a trial which ultimately resulted in his acquittal.

And the order runs in the manner already quoted above. That being so, whether the petition upon which the order was made can be treated as a complaint within the meaning of clause (a) of sec. 4 of the Code of Criminal Procedure or not, the order clearly was one made in the course of a judicial proceeding. It was a judicial order, and it was, if not in terms, at any rate in effect, an order dismissing a complaint. That being the nature of the order, we do not think it was competent to Mr. Mullik''s successor in office to set it aside. The view we take of this matter is supported by the cases of Kamal Chandra Pal v. Gour Chand Audhikari 1 C. W. N. 185 : I. L. R. 24 Cal. 286 and Nilratan Sen v. Jogesh Chandra Bhuttacharji 1 C. W. N. 57 : I. L. R. 23 Cal. 983.

We were asked by Babu Lal Mohan Das not to interfere with the order of the 17th November 1897, on the ground that although that order might not have been one that the Magistrate was authorised to make, still as the previous order of Mr. Mullik which it set aside was a wrong order, we ought to exercise our discretion only in furtherance of the ends of justice and to decline to interfere when the ends of justice require cur interference. We are unable to accede to this request. When we find that the order of the 17th of November last was clearly one that was not authorised by law, we cannot allow it to stand.

We were next asked, while setting aside that order, to set aside also the order of Mr. Mullik, which that order sets aside, We do not think it would be fair to the Petitioners to take that course in this case. Of course it will be competent to the Magistrate and to the Crown to take such steps as the law authorises to have the order of Mr. Mullik set aside if it is an erroneous order. But we do not think it would be right for us in this case to set aside that order. The view we take is in accordance with that taken by this Court in the case of Guru Charan Aich and others I.C.W.N. 650. The result is that this rule must be made absolute and the order of the Magistrate, dated the 17th of November 1897, must be set aside.