BRIJNATH SAHAI Vs. BABU LAL

JUDGEMENT

(1.) THIS is a reference made by the learned Additional Sessions Judge of Arrah in respect of an order passed by Mr. D. P. Mallik, Sub-divisional Magistrate of Arrah, in the matter of a complaint filed by one Brijnath Sahai.

(2.) THE short facts necessary for the disposal of the reference are these. Brijnath Sahai filed a petition of complaint for offence alleged to have been committed by certain persons under Sections 426 and 504 of the Indian Penal Code. THE petition of complaint was filed before the Sub-divisional Magistrate of Arrah on the 31st of May, 1954. I may state here that one of the persons who was accused by Brijnath Sahai was the driver of the car of the Sub-divisional Magistrate Mr, D. P. Mallik, THE Sub-divisional Magistrate sent the complaint for a judicial enquiry and report to another Magistrate, Mr. A. C. Maznmdar. Mr. Mazumdar held an enquiry and submitted a report to the effect that the complaint should be dismissed under Section 203. Code of Criminal Procedure. THE learned Sub-divisional Magistrate accepted the report and dismissed the complaint under the provisions of Section 203, Code of Criminal Procedure. THEreafter Brijnath Sahai moved the learned Sessions Judge of Shahabad for a further enquiry into his complaint. In Criminal Revision NO. 169 of 1954 the learned Additional Sessions Judge, to whom the case was transferred, set aside the order of dismissal on the ground that it was not a proper order and that the case should be tried in Court, and the learned Additional Sessions Judge passed the technical order directing a further enquiry into the complaint of Brijnath Sahai. On receipt of the order of the Additional Sessions Judge, Mr. D. P. Mallik passed an order on the 20th of November, 1954 for the issue of a notice to the parties to appear before him. Brijnath Sahai again moved the learned Sessions Judge for revising the order; of the learned Sub-divisional Magistrate dated 20th of November, 1954, on the ground that there was no occasion for a second Judicial enquiry when the learned Additional Sessions Judge had already directed that the accused persons should be put on trial. This second revision application was dealt with by another Additional Sessions Judge, namely, Mr. S. M. Karim who held that the order of the learned Sub-divisional Magistrate, dated the 20th November, 1954, was not happily worded. Mr. Karim rejected the application, but observed that a further enquiry should be done and the case should be taken up by a Magistrate other than Messrs. D. P. Mallik and A. C. Mazumdar.. He further observed that the record should be placed before the District Magistrate for transfer of the case for disposal by some other Magistrate. Mr. D. P. Mallik thereafter sent the records of the case to the District Magistrate. THE District Magistrate however, instead of making over the case to some other Magistrate of competent jurisdiction passed an order returning the record to the Sub-divisional Magistrate and asking the Sub-divisional Magistrate to take necessary action in accordance with law.

(3.) I have heard learned Counsel in support of the reference and learned Counsel against the reference. It seems to me quite clear that in the circumstances of this case, the proper order to pass is to put the accused persons on trial without holding a second judicial enquiry. As was explained in AIR 1938 Pat 369 (A), the order by a superior Court to an inferior Court to hold a further enquiry into a complaint which has been dismissed under Section 203, Code of Criminal Procedure, has acquired what may be called a technical meaning; it means a reconsideration of the complaint which has been dismissed. The nature of the reconsideration will depend on the circumstances of each case. In a ease where the complaint has been summarily dismissed under Section 203, Code of Criminal Procedure, without an enquiry the direction of a further enquiry may well mean that a Judicial enquiry should be held before the complaint is dismissed. Where, however, a Judicial enquiry was held and then the complaint was dismissed under Section 203, and the superior Court held that the order of dismissal was wrong and that the accused persons, should be put on trial the direction for a further enquiry can only be complied with by putting the accused persons on trial. Otherwise the result may be an absurd and impossible position. Suppose an order of dismissal is passed after a Judicial enquiry, and the superior Court directs a further enquiry, the Sub-divisional Magistrate again holds a second judicial enquiry and again dismisses the complaint under Section 203, again the Sessions Judge directs a further enquiry and the Sub-divisional Magistrate holds a third Judicial enquiry. If the process goes on in this way, the result will be an impasse. Obviously that cannot be the meaning of a further enquiry directed by a superior Court.