SHYAMLAL RUIA Vs. STATE

JUDGEMENT

(1.) It appears that the opposite party, Maharam Din Missra, filed a petition of complaint before the Sub-divisional Magistrate of Bettiah, alleging that several persons including the two petitioners had committed different offences. The Sub-divisional Magistrate directed Mr. Munim, a Magistrate with first class powers, to hold an inquiry into the matter. Mr. Munim reported that no prima facie case had been made out. On considering this report, the Sub-divisional Magistrate dismissed the complaint under Section 203, Criminal P. C. An application under Section 436, Criminal P. C., for further inquiry was heard by the Additional Sessions Judge of Champaran. In his order dated 20-11-1952, the learned Additional Sessions Judge observed that the complainant had not been given an opportunity to examine two of his witnesses who were confined in Muzaffarpur jail. He then directed further inquiry to be made against the petitioners only, observing that there was no case against the other persons who had been accused by the complainant. The petitioners then moved this Court against the Additional Sessions Judge's order but their application was dismissed. When the orders of the Additional Sessions Judge and this Court were placed before the Sub-divisional Magistrate with a report of Mr. Munim that the complainant had filed a petition before him praying for being allowed an opportunity to examine two of his witnesses, he directed process to issue against the petitioners.

(2.) The petitioners have filed this application against the order dated 19-1-1953, whereby the learned Sub-divisional Magistrate has directed process to issue against them. The prayer is that that order may be set aside. Mr. Basanta Chandra Ghosh, who has appeared before me on their behalf, has urged that the learned Sub-divisional Magistrate was bound to Hold further inquiry under Section 202, Criminal P. C., in compliance with the learned Additional Sessions Judge's order for further inquiry and that his action in issuing process against the petitioners without any further inquiry at all is illegal. In support of this contention, he has drawn my attention to the case of -- 'Radha Prasad Bhagat v. Emperor', AIR 1928 Pat 12 (A) and the case of -- 'Sitaram Tewari v. Kausilia', 29 Cri LJ 572 (Pat) (B). Both these cases were decided by Jwala Prasad, J. He held in these cases that a Magistrate, when directed to hold further inquiry under Section 436, Criminal P. C., could not at once summon the accused without holding further inquiry. In one of these cases, namely, the case of Radha Prasad Bhagat, he observed that "the effect of an order setting aside an order dismissing a complaint under Section 203 is to restore the case to the stage under Section 202". This case came up for consideration before a Division Bench of this Court in the case of --'Hema Singh v. Emperor', AIR 1929 Pat 644 (C). The Division Bench expressed the opinion that Radha Prasad Bhagat's case had been wrongly decided. Courtney Terrell, C.J., who was a member of the Bench, held that when directed to hold further inquiry under Section 436, Criminal P. C., a Magistrate is not confined to the holding of a further inquiry under Section 202 but he may issue process and hold a commitment inquiry as well. Dhavle, J. who was the other member of the Bench, observed that it was "impossible to restrict the 'further inquiry' of Section 436 to an inquiry under Section 202." He concluded his observations by saying:

(3.) Mr. Ghosh has attempted to distinguish Hema Singh's case as well as Ramji Gujrati's case. He has argued that a commitment inquiry had been held in Hema Singh's case after further inquiry had been decided by the Deputy Commissioner and all that was decided in that case was that it was not necessary to hold an inquiry under Section 202, Criminal P. C. but a commitment inquiry could also be held. It is true that a commitment inquiry was held in that case after further inquiry had been directed but the observations of both the Judges constituting the Bench make it perfectly clear that the Sub-Divisional Magistrate could issue process under Section 204, Criminal P. C. straightway when--further inquiry was directed by a Superior Court under Section 436 of that Code. Dhavle J. has left no room for doubt about the legal position by observing as follows :