BACHOO MIA Vs. ANWAR NABI

JUDGEMENT

(1.) In this matter one Anwar Nabi made a complaint before the District Magistrate of Howrah against three per-sons under Secs.474 and 204 read with Secs.109 and 114 of the Indian Penal Code on the 17 September last. It appears he had previously brought a civil suit against Bachu accused No. 1 in respect of the price of certain skins and his suit had been dismissed. His allegation in his complaint was that the present accused had kept hack the genuine books of account in that suit and had used in the defence of the same fabricated books. He therefore made this complaint and applied for a search warrant. A search warrant was issued and certain books seized; but on the 3 October, the Magistrate after examining the complainant on oath and hearing the parties dismissed the complaint under Section 203, Cr. P.C. Anwar Nabi then moved the Sessions Judge against the order of dismissal and on the 24 November last the Sessions Judge after hearing Counsel set aside the order and remanded the case for further enquiry, holding that "from the record it seems clear that there is a good prima facie case under Secs.204 and 474 I.P.C."

(2.) The Magistrate on receipt of this order of remand did not summon the accused but after permitting both parties to examine certain books and hearing their Counsel again dismissed the case under Section 203 on 14 January, 1924. The Sessions Judge was moved again. He held that the delay in issuing process was unjustifiable and on 19 January on an ex parte application ordered further enquiry by some other Magistrate after summoning the accused. A rule was then obtained from this Court on the ground that this order was passed without jurisdiction.

(3.) It appears that on both occasions when the Magistrate was purporting to be holding an enquiry under Section 202, Cr. P.C. the accused were before him by pleader, though they had not been summoned and their arguments were heard-a procedure which has several times been condemned by this Court. Of. the case of Bhim Lal Saha V/s. Emperor (1913) 40 Cal. 444. The only point, however, before us is whether the Sessions Judge can when ordering a further enquiry in respect of a complaint which has been dealt with by the Magistrate under Section 202, Cr. P.C. direct that the accused be summoned, or whether he is restricted to only making an order for a further inquiry of the same nature as that which has been already made i.e., in this case a further inquiry under Section 202, Cr. P.C.