BHIM LAL SAH Vs. EMPEROR

JUDGEMENT

(1.) The petitioner, Bhim Lal Sah, on the 2nd January, 1912, complained against Atraj Singh and others of halving committed certain offences. On this the following order was passed: "Complainant to prove his case on 18th January, 1912. Accused may cross-examine." No local investigation was ordered. No reasons were recorded for distrusting the complaint. Indeed, it is difficult to see what reasons there could be. The order was absolutely illegal, and, considering how opposed it is to the plain words of the Code, and how frequently orders of this kind have been condemned, it is very difficult to understand how the Magistrate who passed it could have, believed that he was doing what he was entitled to do. The case dragged on till near the end of February, when the complaint was dismissed. The prosecution of Bhim Lal was then ordered under Section 211. The case then seems to have come before this Court, and this Court held that the accused persons should be properly tried, and that until they had been tried the proceedings under Section 211 should be dropped. They were tried and acquitted by Mr. McGavin, Deputy Magistrate, on the 1st August. A week later Mr. Warde Jones, another Deputy Magistrate, called on Bhim Lal to show cause why he should not be prosecuted under Section 211, and, finally, on the 23rd August, directed his prosecution under Section 476 of the Criminal Procedure Code. The District Magistrate, however, hesitated to act on this proceeding, and observed that the order ought to be passed by Mr. McGavin. Thereupon, Mr. McGavin passed the following order on the 16th September: "Petition purporting to show cause against prosecution under Section 211 filed. The cause shown is not good. Draw up proceedings under Section 211 of the Indian Penal Code." The petitioner then obtained this Rule on the District Magistrate to show cause why his prosecution should not be set aside on the first, second, third and sixth grounds mentioned in his petition. The Rule must clearly be made absolute on the third ground. The order of Mr. McGavin purports to have been passed under Section 476 of the Criminal Procedure Code. Now, if he had thought that action ought to be taken under that section, he ought to have passed the order one-and-a-half months before. The fact that he did not do so indicates very strongly that he did not at the time think it necessary, and that the belated order of the 16th September does not represent his independent judicial opinion. As to the order of the 23rd August, it is unnecessary to waste words on it. There was no judicial proceeding of any sort or kind before Mr. Warde Jones, and his order for the prosecution of the petitioner was altogether beyond his jurisdiction. We are, however, informed that the persons accused by Bhim Lal petitioned for his prosecution, and we have considered whether Mr. McGavin s order can be treated as one under Section 195 of the Criminal Procedure Code. Clearly there may be cases in which a Court may not think it necessary In the public interest to take action under Section 476, but may be willing to allow the person injured to seek redress. In such a case it is not necessary that the order should be passed at or near the time of the disposal of the original case. But, considering how illegally and unnecessarily Bhim Lal has been harassed in these proceedings, we do not think that his further prosecution should be sanctioned.

(2.) The Deputy Magistrate in charge, Mr. Warde Jones, has submitted an explanation, and with inference to this Court s condemnation of the practice of securing the attendance of the accused person, says that it is a "matter of common practice that when cases are inquired into locally under Section 202 of the Criminal Procedure Code by judicial and non-judicial officers, the statements of accused persons and their witnesses are almost always taken: and inasmuch as Section 202 of the Criminal Procedure Code does not specifically forbid such, procedure, and in the present case the accused persons availed themselves of the option given them to cross-examine, put in statements and adduced evidence, I followed the practice." He refers to another decision of this Court in which, in his view, this practice was sanctioned, and asks for guidance.

(3.) It may be observed that the Deputy Magistrate appears to be in error in supposing that there was any* local investigation under Section 202 in this case, but leaving that aside, we may express our hearty concurrence in the condemnation pronounced by the former Bench on the practice of conducting these preliminary inquiries in the presence of the accused. The practice of making the accused a party to such proceedings was condemned in Baidya Nath Singh V. Muspratt (1886; I.L.R. 14 Calc. 141, and its futility is obvious. We do not suppose that Magistrates have so little to do that they prefer trying cases twice over, and it is difficult to avoid a feeling of uneasiness lest the object of the practice may not be to harass complainants and deter them from seeking relief in the Criminal Courts.