KANNHAIYALAL Vs. BAIJNATH MAHESRI

JUDGEMENT

(1.) THIS is an application against the order of the District Magistrate, Hoshangabad, directing a further inquiry into an accusation against the accused under Section 363, I. P. C. The accused who are the applicants before me were challaned in the Court of the Subdivisional Magistrate, Sohagpur, under Sections 147, 452 and 363, I. P. C. At the beginning of the proceedings on 15th June 1932 the Subdivisional Magistrate recorded the following order in the order sheet : The Prosecuting Inspector drops the kidnapping section e. g. Section 363 of the Penal Code. The case is then triable by a Magistrate, Second Class and is therefore forwarded to the Naib-Tahsildar and the Magistrate Second Glass, Sohagpur, for disposal according to law.

(2.) AGAINST this order the complainant applied in revision to the District Magistrate asking for a further inquiry into the offence alleged under Section 363 and for a transfer of the pending case in the Court of the Naib-Tahsildar to a Magistrate having First Class powers. The learned District Magistrate considered that there was a prima facie case under Section 363 and issued notice to the non-applicants. The case was argued before him at length and he came to the conclusion that further inquiry was warranted and under Section 436, Criminal P. C., he directed that further inquiry be made in the Court of the Subdivisional Magistrate, Sohagpur. He however declined to transfer the case under Sections 147 and 452 from the Court of the Naib-Tahsildar on the ground that the trial was nearly finished. It is contended before me that the District Magistrate had no jurisdiction under Section 436 to order a further inquiry in the case of persons who have been discharged under Section 494, Criminal P. C. The first point taken is that the wording of Section 436 postulates a further inquiry and that if the Prosecuting Inspector had withdrawn the case there could be no inquiry at all and thus no further inquiry was possible. Any case which is before a Magistrate is under inquiry and the fact that no evidence has been taken does not mean that the case is not under inquiry. The fallacy of the contention is further exposed by reference to Section 436 itself which directs further inquiry inter alia into any complaint which is dismissed under Sub-section (3), Section 204, Criminal P. C., where no actual investigation by the Magistrate could have commenced by reason of the failure to pay process-fees.

(3.) WITH all respect I am of opinion that the learned Judge has omitted Section 494. It is further urged that the District Magistrate had no jurisdiction to order further inquiry in a case where the Prosecuting Inspector had withdrawn from the prosecution on any particular count as the withdrawal must be considered to have been made with the sanction of the District Magistrate himself as representing the Crown. In passing I may remark that this argument sorts ill with ground No. 4 in the revision application which complains that the learned District Magistrate failed to hear the Crown before the final order was passed. The logical consequence of the argument that is addressed to me would be that a Public Prosecutor or a Prosecuting Inspector would not be able to appear in a District Magistrate's Court.