SHEIKH BAHATAR Vs. NOBADALI

JUDGEMENT

(1.) We think the learned District Magistrate had no jurisdiction to pass the order which he did on the 15 November, 1923. If he was of opinion that such an order was necessary in the interest of justice, his proper course was to make a reference to this Court under the provisions of Section 438, Cr.P.C. We accordingly accept this part of the Reference made by the learned Sessions Judge and set aside the said order of the learned District Magistrate.

(2.) With reference to the other recommendation made by the learned Sessions Judge, viz., that the order of the Sub-Divisional Magistrate, dated the 5 November, 1923 be restored, we are not prepared to accept his recommendation. He has referred to two cases in his letter of Reference in support of the recommendation that he has made, viz., (i) Bachu Molla V/s. Sia Ram Singh (1886) 14 Cal. 358 and (ii) Judhisthir Gope V/s. Sheikh Samir A.I.R. 1923 Cal. 644. The decision in the latter case rested on its special features, viz., that the two cases were being tried by two different Courts, and in one of the eases the prosecution case had been closed and charge framed, whereas in the other practically very little had been done, and under those circumstances it was held that it was desirable to hold the trials in one Court and to finish the trial which had nearly come to an end. With regard to the former case the authority of the observations which, by the way, were not the foundations of the decision therein, was very much weakened in consequence of a later decision of this Court in Queen- Empress V/s. Chandra Bhuiya (1893) 20 Cal. 537.

(3.) We propose to consider the matter from the point of view of first principles, and in doing so we shall for the sake of brevity call the case against Nobadali and others as the Police case, and the case against Sheikh Bahatar and others as the complaint case, since they have been started, respectively, upon a Police report and a complaint. We start with the position that the Police case is to go on immediately; in fact no application has been made by any party to have it postponed and none has suggested that it should not be taken up at once. The question is whether the complaint case should not also be started at once. Now, the policy of the law is that it should go on, unless it be adjourned so far as the trial Court is concerned, under the provisions of Section 344, Cr.P.C. Under the provisions of that section, "if from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any enquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor postpone or adjourn the same." In this case no reasons have been recorded by the learned Sub-Divisional Magistrate. His order simply runs thus : "Seen. The Police case will be taken up first." It is for us, then, to enquire : Is there any reasonable cause which may justify the order?