Rambahal Rai and Others vs Emperor

Ali Imam, J.—Two points arise in this reference. The first is whether the District Magistrate of Champaran, while ordering a further enquiry u/s 437 of the Code of Criminal Procedure in a case in which the accused is discharged u/s 253 of that Code, should have passed this order of enquiry without notice to the accused. The point is concluded by the authority to which reference has been made in the letter of Mr. Lewis, the Sub-Divisional Officer of Bettiah, attached to the letter of reference under consideration. It is true that the District Magistrate was not bound in law to issue any notice on the accused, but it was held in the Full Bench case of Hari Das Sanyal v. Saritulla 15 C. 608 : 13 Ind. Jur. 55 : 7 Ind. Dec. 989 (F.B.) that the exercise of discretion in favour of issuing a notice like this would be considered the right and'' proper action to take. I, therefore, direct that the District Magistrate of Chapra should issue a notice to the accused before passing an order u/s 437 of the Code.

The second point on which this reference is made must be left to the discretion of the Magistrate to be exercised on an appreciation of the facts and circumstances of the case. He would, therefore, be free to order a further enquiry or take such action as he may deem fit.