Moul Singh and Others vs Mahabir Singh

The matter before us concerns six persons against whom the Sub-Divisional Magistrate refused to proceed, and his order was called in question by a Rule issued by the District Magistrate on a petition made by the complainant to the effect that the case should be proceeded with against the remaining offenders. It appears that there was a ease of rioting in which certain persons were convicted and, in the course of these proceedings, three others who are the first three Petitioners before us were also proceeded against by the issue of warrants for their arrest. Those who were before the Court were tried and convicted and their appeals were dismissed by the Sessions Judge, but the Sub-Divisional Magistrate having issued warrants did not think it necessary to proceed further against the first three Petitioners. After the order passed in appeal confirming the conviction and sentences, the complainant petitioned the Sub-Divisional Magistrate to proceed against the three Petitioners for whose arrest warrants had been issued as well as against three other persons who were mentioned in the final police-report but against whom no proceedings had been taken by the Magistrate. The Sub-Divisional Magistrate considered that sufficient had been done to satisfy justice and refused to make the order asked for. Thereupon the complainant went to the District Magistrate who directed that the ease should be proceeded with against the remaining offenders, that is to say, against the three for whose arrest warrants had been issued as well as against three other persons who had not been proceeded against by the Sub-Divisional Magistrate. On an application made before us we determined to consider whether this order which was for further enquiry under sec. 437, C. Cr. P. was contrary to law, inasmuch as no order of discharge had been passed in respect of any of the persons concerned. The case was already before us in another shape.

Now, in regard to the first three Petitioners for whose arrest warrants had been issued, we think the termination of the proceedings against them was in effect an order of discharge. In respect of these persons, therefore, we see no sufficient reason to interfere.

The case of the other three persons stands differently. To take proceedings against them would be to proceed on the police-report or on the evidence which had been taken at the former trial before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate is competent to act on the police-report and, although he is subordinate to the District Magistrate we think that it would not be proper for the District Magistrate to pass an order directing proceedings to be taken against certain persons mentioned in the police-report unless he had withdrawn the whole matter from the Court of the Subordinate Magistrate to his own Court, and it seems hardly necessary to add that even if there were evidence in any trial before that Magistrate against certain persons, the District Magistrate could not direct proceedings to be taken against them unless a final order of dismissal or discharge which he considered to be an improper order had been passed, and he certainly could not direct proceedings to be taken against such persons if they had not been before the Court unless by an express order he had removed the case for trial to his own Court. Under his general powers, therefore, we think that the Magistrate had no jurisdiction to interfere whereas he could not interfere under sec. 437 in respect of Petitioners Nos. 4, 5 and 6 because they had never been before any Court. The order of the District Magistrate in respect of Petitioners Nos. 4, 5 and 6 is therefore set aside.