SAMIR KHAN S Vs. STATE OPP PARTIES

JUDGEMENT

(1.) THIS Rule is against an order dated the 25th June, 1969 passed by A. K. Nandi, Sub-divisional Judicial magistrate, Chandernagore. , Hooghly, issuing process under Sections 427/352 of the indian Penal Code against the accused nos. 3 to 12 in C. R. No. 304 of 1969.

(2.) THE facts leading on to the Rule are short and simple. A petition of complaint was filed by one Sanatan mullick on or about the 17th March, 1969 in the Court of the Sub-divisional judicial Magistrate, Chandernagore, alleging, inter alia, that the accused persons being armed with deadly weapons forming an unlawful assembly trespassed into his land, broke the fencing and took away crops and thus caused damage to him to the. extent of about Rs. 700/- and on his objection to the catching of the fish in his tank, the accused-persons attacked him and the accused Nos. 1 to 7 assaulted him while the accused No. 9 stood on his chest and the accused No. 12 was going to hit him with a katari. The learned Sub-divisional Judicial Magistrate, examined the complainant on the same date and held that the complaint needed a local enquiry and in that view he directed that Sk. Akbar Ali Khan, Ex-Chairman, chandernagore Municipality will hold an enquiry and submit report by 7. 5. 69. On the 11th April, 1969 the learned Sub-divisional Judicial Magistrate sent the case to Mr. C. K. Ray chowdhury, Judicial Magistrate, 1st class, Chandernagore for enquiry and report. Thereafter on the 7th May, 1969 Sri A. K. Nandi, Sub-divisional judicial Magistrate Chandernagore went through the report that was submitted and agreeing therewith issued process under Sections 427/352 I. P. C. against the accused Nos. 1 and 2 only and dismissed the complaint so far as the other accused were concerned by his order of the same date. Being aggrieved by the said order, the complainant preferred an application under section 435 Cr. P. C. before the learned sessions Judge at Hooghly praying for setting aside the order of dismissal so far as the accused Nos. 3 to 12 are concerned and praying for a further enquiry into the complaint. Ultimately on the 21st June, 1969, Sri N. C. Dutta, Sessions Judge, Hooghly, was pleased to allow the said revisional application, set aside the order of the learned Judicial Magistrate dismissing the complaint against accused Nos. 3 to 12 and remanded the case back to the court below for further enquiry into the complaint against the ten accused-persons who were discharged. On the 25th June, 1969 when the records came back to Sri A. K. Nandi, Sub-Divisional Judicial Magistrate, he passed the following order:"seen the order of learned Sessions Judge, Hooghly in connection with Cr. Motion No. 52 of 1969. It is well settled that when a superior court directs further enquiry process has got to be issued, (vide 1968 cr. L. J. 1257 ). Issue process also under section 427)352 I. P. C. , against accused nos. 3-12. To 6-8-69".

(3.) MR. Mrityunjay Palit, Advocate (with Miss Anjali Chatterjee, Advocate) appearing in support of the Rule on behalf of the four. accused-petitioners has taken a short point for consideration. Mr. Palit has contended that the order that was passed on the 25th june, 1969 is an order which is clearly bad and improper and dehors Section 436 Cr. P. C. Mr. Palit submitted in this context that in view of the clear and categorical order passed by the learned sessions Judge, namely, that the case was remanded to the court below for further enquiry into the complaint against the other ten accused-persons, the learned Sub-divisional Judicial magistrate had materially erred in construing the order to mean a, clear-cut direction upon him to issue process without any re-consideration of the materials on the record on his own or without hoiding any enquiry, causing thereby a serious prejudice to the accused-persons concerned. Mr. Balai chandra Roy, Advocate (wlth Mr. Mihir Kumar Roy, Advocate) appearing on behalf of the complainant. Sana-tan Mullick, has opposed the Rule and has submitted that the objection taken by Mr. Palit to the order impugned is more technical than real and upon ultimate analysis, the learned Sub-divisional Judicial Magistrate has no other option in carrying out the direction of the learned Sessions Judge but to issue process under section 427/352 i. P. C. against the accused persons concerned. Mr. Roy further submitted that at this stage there was no scope for further enquiry and the order that was passed by the learned Judicial Magistrate is a reasonable order which this court may not be pleased to interfere with in revision. Mr. Jahar Lal roy, Advocate, appearing on behalf of the State has opposed the Rule and submitted that there was no scope for any further enquiry by the learned sub-divisional Judicial Magistrate in view of the order passed by the learned sessions Judge on the 21st June, 1969 setting aside the previous order of dismissal with regard to the accused persons. Mr. Roy further submitted that a judicial enquiry had already been held and there was no scope for holding a fresh one at this stage and the order of the learned Sessions Judge has been properly interpreted by the learned Sub-divisional Judicial Magistrate in issuing straightaway process against the accused persons. In this context mr. Roy relied on a Patna case refer red to in the impugned order, namely, the case of (1) Abu-Bakkar petitioner v. Balal Sheikh, opposite party, reported in 1968 Cr. L. J. 1257, wherein C. N. Prasad, J. was pleased to hold that the order of superior court to hold further enquiry into a complaint which has been dismissed under Section 203. Cr. P. C. has a technical meaning. It simply means reconsideration, but what more step has to be taken thereafter depends on the circumstances of each case. The learned judge observed further that in a case where the complaint has been dismissed after a full enquiry, such order can only be complied with by issuing process against the persons complained against. Mr. Eoy relies upon the said observation in support of his contention that there was no scope left to the learned Sub-divisional Judicial Magistrate to hold any further enquiry or to have a reconsideration of his own.