B K SEN Vs. BABU RAJESHWARI PRASAD

JUDGEMENT

(1.) The facts relevant for consideration of the question raised in this petition are set out in the petition Itself, of which notice has been given to the District Magistrate, and which have not been controverted. Since 1937 the petitioner has been the possessor of a double-barrelled breach-loading gun which he holds under a licence issued by the District Magistrate under the Arms Act. On 3 January 1944, he made an application for the renewal of his licence, tendering the requisite fee. According to the practice which appears to prevail, the application was presented to an officer called the Arms Act Clerk, whose duty it was to place it before the Sub-divisional Officer. The practice is for the latter to sign the licence in token of its renewal on behalf of the District Magistrate. Nothing having been heard of this application for a a week, on 10 January the petitioner's clerk made an enquiry about it and was then told by the Arms Act Clerk Rajeshwari Prasad that the licence would not be renewed unless the petitioner invested Rs. 100 in War Bonds. Having been informed of this, the petitioner himself visited the Arms Act Clerk on the following day. He was "then informed by Raje-shwari Prasad that the licence would not be renewed unless Rs. 100 was invested in a War Bond, and that he would not forward the application to the Sub-divisional Officer until this was done. Thereafter the petitioner wrote out a petition of complaint setting out the facts stated above and alleging that they constituted an offence under Section 161 and Sec. 384 read with Section 511 Indian Penal Code. As the Magistrate had by then left his Court, this could not be presented until the following morning.

(2.) On the next morning the complaint was filed, and it was the duty of the Sub- divisional Magistrate under Section 200, Indian Penal Code, at once to examine the complainant on solemn affirmation. This was not done. The petitioner was informed that the complaint could not be dealt with that day as it was a day on which the Magistrate was engaged in revenue matters. On the following morning, that is to say, on 13 January, the petitioner again appeared before the Sub- divisional Magistrate. When he mentioned his complaint he was told that a counter case had been lodged by the Arms Act Clerk, and that in the latter's absence the petitioner's complaint could not be taken up. He was told to come back at 1 o clock. At 1 o clock he returned to the Sub-divisional Magistrate's Court, but the Magistrate himself did not do so. Nor was the petitioner apprised of what the Magistrate proposed to do in the matter of his complaint. On the following morning the petitioner's mukhtar mentioned the case in Court. The petition does not state that the mukhtar was informed, but it does state that he was not told that any order had been made on the petitioner's complaint. On the 15 and the 16 the criminal Courts were closed, and on the 17 the petitioner learnt from his mukhtar that an order had been made by the Magistrate purporting to have been passed on 18 January. That order is as follows: " No demand (if any demand was really made) should have been made from a lawyer after protest. As, however, I am not proceeding further with the case I am not giving any finding as to whether the demand was made or not. The complaint is not pressed. Therefore, file.

(3.) A perusal of the order discloses peculiarities. The Magistrate was apparently of the opinion that a demand of the nature complained of would provide no grievance to anybody but a lawyer, and not even to a lawyer unless he had protested. Although it is clear from the conduct of the petitioner all through that he was anxious to have his complaint dealt with, he is recorded as not pressing it. As the learned Additional District Magistrate subsequently pointed out, there is nothing on the record of this case to suggest that the petitioner at any time abandoned his intention of pressing the complaint. Furthermore, the Magistrate who made the order himself seems to be well aware of this, for, instead of dismissing it, he merely decided it to be filed. Lastly, I have the gravest doubt whether this order was ever made on the 13 at all. If it was, I should have expected the petitioner's mukhtar to be informed of this when he mentioned the case in Court on the 14th. However, the petitioner filed a fresh complaint in the Court of the District Magistrate on the 18th. The District Magistrate sent the complaint and the complainant to Mr. Bilgrami, another Magistrate, for the complainant's statement to be recorded on solemn affirmation. Mr. Bilgrami was not empowered to take cognizance of the case, but he recorded the complainant's statement on solemn affirmation and sent it with the complaint to the District Magistrate. The latter then ordered the complaint to be treated as an application under Section 436, Criminal P. C, that is to say, as an application for further enquiry into the original complaint.