J K SINHA Vs. HEMANTA KUMAR SINHA

JUDGEMENT

(1.) We do not think it necessary to set out the long and complicated story on the basis of which the petitioner asks for process to issue against the two persons named in the petition of complaint. The facts are accurately summarized in the order of the Chief Presidency Magistrate made on 27 January 1932. Mr. Pagh maintains that the order should be set aside inasmuch as the Magistrate before making it heard counsel and permitted documents to be filed on behalf of the persons complained against, a procedure not contemplated or warranted by Ch. 16, Criminal P. C. Secondly, Mr. Pugh argues that even if this alleged illegality is not itself sufficient ground for setting aside the order, it should be set aside on the marits.

(2.) As to the first point the view of Ch, 16 expressed by Sanderson, C. J., and Walmsley, J., in Behari Lal Mukerjee V/s. Pasupati Chatterjee [1916]17 Cr. L. J. 396 has never been questioned in any decision of this Court and we have no doubt whatever that it is the correct view. The materials on which the Magistrate is to act are expressly limited by Section 203 to the statement on oath (if any) of the complainant and the result of any investigation or inquiry under Section 202.

(3.) It is contrary to the scheme of the Code to permit the opposite party to appear and argue that process should not issue. Mr. Pugh however concedes that when as here the complainant has asked for and obtained an order for the seizure of the opposite party's books, and also an order restraining the opposite party from operating on his banking account that parties can appear immediately and asked that such orders be vacated. Further it would be unreasonable to expect the Magistrate when deciding whether process should be issued to disregard materials that had been properly brought to his notice by the opposite party as grounds for vacating the order we have mentioned.