SANTOSH KUMAR Vs. KING

JUDGEMENT

(1.) The petitioners are being proceeded against for having committed offences punishable under Sections 409/120B & 477A, Penal Code that is to say, they are being tried for criminal breach of trust, conspiracy & falsification of accounts.

(2.) Some of the petitioners were the managing agents of the Behala Sree Bank & some were the employees of the managing agents. The proceedings were started on the complaint of one Nani Gopal Haldar, a depositor, who had a current account with this Bank. His case briefly is that the managing agents of the Bank used the money which he deposited in his current account for the purpose of other businesses & thereby they committed the offences charged against them. On this petition of complaint, being filed the learned Magistrate ordered the police to investigate the matter treating the petition of complaint as the First Information Report. The police investigated the matter & submitted a charge-sheet & thereupon the learned Mag. proceeded against the accused petitioners. The present Rule has been obtained against this order & it is prayed that the proceedings be quashed.

(3.) The first ground urged is that the learned Mag. having taken cognizance of the case when he took notice of the complaint, he should have followed the procedure laid down in Chap. XVI, Cri. P. C. & that he acted without jurisdiction in directing the police to investigate & submit a chargesheet. The learned Magistrate evidently purported to act in accordance with the provisions of Section 156 (3), Cri. P. C. which appears in Chap. XIV of the Code. Sub-section (3) says that any Magistrate empowered under Section 190 may order an investigation by the police. Now, Section 156 (3) can have no application once cognizance of a case is taken on a complaint. The Magistrate on taking such cognizance was bound to proceed in accordance with the provisions of Section 200 & the following sections, that is to say, he was bound to examine the complainant on oath & then either issue process or postpone the issue of process & order an enquiry & report either by another Magistrate subordinate to him or by the police. The learned Magistrate should after receipt of the report decide whether the process should issue or whether the complaint should be dismissed. The present procedure adopted by the learned Magistrate is entirely wrong. I have had to deal with this matter in ('A.C. Samaddas v. Suresh Ch. Jana', Criminal Rev. No. 467 of 1948), and I have held that this procedure is not supported by law. The subsequent proceedings of the learned Magistrate were therefore without jurisdiction. They must be set aside.