Ramji Gujrati vs Emperor

Macpherson, J.—This is an application against an order purporting to be made by the District Magistrate of Sambalpore in revisional jurisdiction.

Manikram Ahir of Jharsuguda had filed a complaint before the Honorary Magistrate of that place against the petitioner u/s 408, I.P.C., describing the petitioner as his commission agent for the sale of biri leaves. The Honorary Magistrate examined a number of witnesses under 8. 202, Criminal P.C., and dismissed the complaint u/s 203 on the ground that it is a matter for the civil Court. The complainant moved the District Magistrate who holding that there was a prima facie case allowed the motion, set aside the order of dismissal and ordered that the accused be placed on his trial before a competent Court in Sambalpore.

On behalf of the petitioner Sir Ali Imam contends, first, that the order of the Magistrate is illegal as u/s 436, Criminal P.C., he could not do more than direct a further enquiry of the same nature as had been made by the Honorary Magistrate and secondly that there is no basis for any prosecution so that the proceedings should be quashed, and in any case the order of the learned District Magistrate if not illegal is improper in the circumstances.

In support of the first contention reliance is placed upon a decision of a Bench of the Calcutta High Court in Bachoo Mia Vs. Anwar Nabi, and the decision of Judge of this Court in Radha Prasad Bhagat and Others Vs. Emperor, which he expressly followed in Ramchandra v. Satyabhama [1929] 108 I. C, 328 where the view was expressed that "further inquiry" in Section 436 means "an inquiry of the same nature as had previously been made u/s 202."

The first of these decisions is distinguishable in that the order u/s 436 to summon the accused was passed by a Sessions Judge, who could not take cognizance of an offence. The decisions last mentioned appear not to express the considered views of this Court. Doubting the correctness of the decisions in Radha Prasad Bhagat and Others Vs. Emperor, each of two Judges of this Court referred a case in which that ruling was cited before him to a Divisional Bench for decision. In the first of those cases Janakdhari Singh Vs. Emperor, Adami and Wort, JJ., held in a case where the Sessions Judge had directed further inquiry u/s 436 and the Magistrate had summoned the accused without holding any "further inquiry" that the Magistrate''s omission was an irregularity only and not an illegality, and reliance was placed upon Jyotindra Nath Daw v. Hem Chandra Daw [1909] 36 Cal. 415 where it was pointed out that the Magistrate who had first dismissed the complaint u/s 203 was himself competent on reconsideration and without a further inquiry u/s 202 to issue summons on the accused. In the other case, Hema Singh and Another Vs. Emperor, which was expressly referred for examination of the decision in Radha Prasad Bhagat and Others Vs. Emperor, it was held by Terrell, C.J., that "further inquiry," which may be directed u/s 436, is not confined to a further inquiry u/s 202 but includes an inquiry prior to commitment. In that case the Deputy Commissioner having u/s 436 directed further inquiry, the Magistrate forthwith summoned the accused. It was held that he had discretion to dispense with any inquiry u/s 202. Radha Prasad Bhagat and Others Vs. Emperor, which was relied on was held to have been wrongly decided.

Dhavle, J., observed as follows:

Coming now to Section 436, I would observe in the first place that the District Magistrate is empowered by that section only to make further inquiry himself or to direct a Subordinate Magistrate to make it. This relief of a "further inquiry" is provided for such a variety of circumstances that it becomes difficult if not impossible in one class of cases after another, to take it to mean an inquiry u/s 202. In those cases where a complaint has been dismissed without resort to Section 202 and a superior Court gives relief u/s 436 against the dismissal, there is little difficulty in taking "further inquiry" to mean an inquiry u/s 202 except that it is not easy to see why the legislature should be taken to have intended that the Magistrate must; inquire himself apparently with liberty to have an inquiry made by a Subordinate Magistrate or to have an investigation made by a police officer or some other person as permitted by Section 202. In those cases however in which a Magistrate dismisses a complaint after a, full inquiry u/s 202, it is difficult to see why in giving relief u/s 436 the superior Court should be taken to require the Magistrate to make the same inquiry over again (as has been contended for by Sir Ali Imam), apparently without liberty to adopt the alternatives permitted by Section 202, In yet another class of cases dealt with in Section 436, viz., cases of discharge of an accused person, a further inquiry u/s 202 is plainly out of the question; a majority of five learned Judges of the Calcutta High Court held in Hari Das Sanyal v. Saritulla [1838] 19 Cal. 608 that the powers to direct "further inquiry "in such cases enables the superior Court, acting u/s 437 (now Section 436, to direct either an additional investigation of the facts, or a reconsideration of the evidence, by the Magistrate whose order is set aside, or a new inquiry before another Magistrate. It thus seems impossible to restrict the "further inquiry" of Section 436 to an inquiry u/s 202.

It is also settled law that the proceedings before a Magistrate in warrant cases under Chap. 21 of the Code are and remain inquiries until they become trials on charges being framed and put to the accused The order of the Sub-divisional Magistrate to summon the accused in the present case and the proceedings before Mr. C.N. Allam, the Deputy Magistrate to whom the case was transferred for trial but who actually committed it to the Sessions, are thus not outside the "further inquiry" directed by the District Magistrate u/s 436. Relying on the observations of Jwala Prasad, J., in Radha Prasad Bhagat and Others Vs. Emperor, Sir Ali Imam has argued that an inquiry u/s 202 was obligatory in the present case because it was necessary that the suspicion which arose in the mind of the Magistrate against the truth of the complaint and originally led to its dismissal, be dispelled. But a further inquiry u/s 202 is not the only way to remove such suspicion, and a lower Court may often give up its doubts when a superior Court has set aside an order of dismissal based on such doubts. In Sant Lal Singh v. Emperor, Cr. Revn. No. 425 of 1928, decided by Macpherson, J., in this Court on 16th August 1928 Hema Singh and Another Vs. Emperor, it was urged on the authority of Ramchandra v. Satyabhama [1929] 108 I. C, 328, that a further inquiry u/s 430 means an inquiry of the same nature as one held u/s 202. The contention was rejected by the learned Judge who pointed out how such a view of the law could not possibly be of general application and how the definition of "inquiry" in Section 4(k). is subject to the very important provision that a different intention does not appear from the subject or context.

With the views of the learned Judge I desire to express my respectful concurrence: The first contention fails. I would add that I am not prepared to hold that there is anything to prevent a District Magistrate when moved to act u/s 436 from taking cognizance in his discretion of the complaint u/s 190(1), Criminal P.C.

As to the second contention the submissions of learned Counsel in favour of the first portion of it entirely fail to impress. But perusal of the evidence on record and consideration of the circumstances of the case, lead me unhesitatingly to the view that the order to summon the accused was, though not illegal, at any rate an unsound exercise of discretion, as the case is distinctly one in which no further inquiry u/s 202 should have been held. Extreme caution is necessary before summons is issued on complaints of this type. And the order of the learned District Magistrate exhibits some confusion of ideas.

This Court will now pass the order which the learned District Magistrate should have passed. It is that the order of dismissal u/s 203 be set aside and that further inquiry be made into the complaint of Manikram Ahir. The complaint is transferred to the file of the Sub-divisional Magistrate of Sambalpore who may himself dispose of it or may transfer it for disposal to a Magistrate of the First Class Subordinate to him.