Mandar vs Emperor

Foster, J.—The petitioner lodged an information at the thana on the 24th December last to the effect that some bundles of paddy and a lota had been stolen from his thrashing floor the previous night. He came to the thana with the chowkidar and the man accused of having stolen the paddy, namely, Gokul. The Sub-Inspector searched Gokul''s house and found some paddy which Gokul admitted that he had stolen from the complainant. That confession of Gokul made to a Sub-Inspector would not be admissible against Gokul but it will be admissible when the present petitioner brings it forward in Court as a justification for his having complained to the Court subsequently. The Sub-Inspector reported the case to be false and the petitioner thereupon moved the Sub-Divisional Magistrate. His petition was quite correctly treated as a complaint and he was examined on oath, and the Magistrate proceeded quite in accordance with the provisions of Section 202 of the Criminal Procedure Code. He examined 17 witnesses in all, out of whom eight were produced by the petitioner as complainant and nine were produced by the Court Sub-Inspector. After this the Sub-Divisional Magistrate proceeded to dismiss the complaint passing an order of dismissal after enquiry made. But he was bound to record his reason for dismissing the complaint. The order which the Magistrate passed on the order sheet no doubt will have to stand as his reason for dismissing the complaint. The Magistrate also proceeded and passed an order u/s 476 of the Code and I have no doubt, that he had jurisdiction to do so inasmuch as the recording of the complaint, the enquiry and dismissal of the complaint were judicial proceedings. But he was also making an enquiry u/s 476 and his order that I have referred to must also be taken to be a summary of the result of the enquiry under K this section. The petitions urges that the Magistrate had no jurisdiction to call upon the complainant to prove his case, but the rulings which he cited are not apposite, for in those cases the petitioner had not approached the Magistrate of his own accord. The only fault that I find with the order is not as to jurisdiction, but the absence of judicial discretion. After examining 17 witnesses the Magistrate''s only reason (that deals directly with the merits of the case) for dismissing the complaint and passing the order u/s 476 is the improbability that one of the accused, not Gokul, should act in a way that was described on the side of the prosecution. The Magistrate disbelieved that the accused would have kept a stolen lota in his varandah. Nothing is said about Gokul and nothing more is said bearing directly on the merits in the case. Had there been anything which pointed directly to the elements of the offence described in Section 211, Indian Penal Code, elements which are very strictly defined and limited, the Magistrate would surely, after giving the careful attention which he says he gave, have been able to put his finger upon them. It is no use passing an order u/s 476 unless there is a reasonable probability of conviction and the very meagre grounds given, by the learned Sub-Divisional Magistrate indicate that this case is not one in which the Court could have had any such reasonable apprehension of success as is necessary when an order is passed u/s 476: Jadunandan Singh v. Emperor [1909] 37 Cal. 250. The case was a petty village quarrel, and the action of the Magistrate would have the effect of interference in a matter that is not primarily an offence against public justice. In this connection, I adopt the principle laid down in the case of Ram Prosad Malla v. Raghubar Malla [1910] 37 Cal. 13.

I, therefore, set aside the order passed by the learned Sub-Divisional Magistrate u/s 476, Criminal Procedure Code.