BHIM LAL SHAH Vs. BISA SINGH

JUDGEMENT

(1.) The petitioner, Bhim Lal Shah, on the 2nd January 1912, complained against Atraj Singh and others of having 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 complainant. 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 under, stand how the Magistrate who passed it can 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, 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, Indian Penal Code." The petitioner then obtained this Rule on the District Magistrate to show causa why his prosecution should not be set aside on the 1st, 2nd, 3rd and 6th grounds mentioned in his petition. The Rule must clearly be made absolute on the 3rd ground. The order of Mr. McGavin purports to be passed under Section 476, Criminal Procedure Code. Now if he had thought that action ought to be taken under that section, he ought to have passed the order 1 1/2 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.

(2.) 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, Criminal Procedure Code. Clearly there may be cases in which a Court may not think it necessary in the public interests 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.

(3.) The Deputy Magistrate in charge, Mr. Warde Jones, has submitted an explanation and with reference 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, 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, 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 adduce 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.