G RAMCHANDRA NAIDU Vs. AMANU SWAMY NAIDU

JUDGEMENT

(1.) This is an application against the order of the Additional District Magistrate of Cuttaek ordering further enquiry against the petitioner. It appears that the opposite party filed a complaint before the Sub-divisional Magistrate on 26-8-1946 under certain sections of the Indian Penal Code. The Magistrate sent the complant to a Deputy Collector for enquiry and report. On receipt of the report on 19-9-1946, the Magistrate (the second officer) recorded the following order: "Report of Sri B.C. Das Deputy Collector received. Summon accused under Section 379, Penal Code fixing 23-10-1946." It appears that before processes could issue on the same day, it was represented to the second officer on behalf of the petitioners that there was no case against them. The second officer then cancelled his previous order and stated that he did not find legal evidence connecting the accused with any offence of theft. There was nothing on the report of the enquiring officer to substantiate a case under Section 447 or 403. He accordingly dismissed the complaint under Section 203. Criminal P.C. The complainant moved the District Magistrate against this order. The Additional District Magistrate thought that the procedure adopted by the second officer was open to serious objection. He should have heard the complainant before he cancelled his previous order and that the accused had no locus stand to be heard until the summons were formally served on them. He accordingly set aside the order dismissing the complaint and directed further enquiry.

(2.) The principal question for considerations has been as to whether the second officer could in law rescind his previous order summoning the accused. Admittedly no summonses were actually issued and the question for consideration is whether the second officer could go back on his order summoning the accused. There is nothing in the Criminal P. C. which directly prohibits the Magistrate from doing so, and a decision of their Lordships or the Calcutta High Court in Lalit Mohan V/s. Noni Lal A.I.R. 1923 Cal. 662, may be referred to. In that case their Lordships observed, "There is nothing in the Code which forbids a Magistrate to reconsider an order of this kind on, sufficient grounds." The matter, however, is entirely technical, for whether one treats the dismissal of the complaint as one under Section 203 or treats the case as one of discharge, this Court in its criminal revisional jurisdiction has ample power to see whether further enquiry was justified. I have looked into the report of the Deputy Collector to whom the complaint was sent for enquiry and I am not in the least surprised that the second officer held on that report that he did not find any legal evidence connecting the accused with any offence of theft or that there was anything in that report to substantiate a case under Section 447 or Section 403. Mr. Swain on behalf of the complainant has urged that the report of the Deputy Collector is defective and it does not indicate the true state of affairs. He urged that the Deputy Collector was a newly appointed Magistrate and inexperienced. I am not in a position on the materials before me to say as to whether the Deputy Collector was one who was inexperienced. He certainly, in his report has given a summary of the dispute between the parties and I am quite certain, that if the complainant's witnesses had specifically stated that they had seen any one of the accused removing any article belonging to the complainant, the Deputy Collector would not, have failed to mention that fact in the report. Mr. Swain further urged that it would be better for the ends of justice that the case of both the parties may be thoroughly investigated as ordered by the Additional District Magistrate. It seems to me, however, that when prima facie there is no legal evidence so far available to connect any of the accused with the offence of theft or to substantiate the complainants case under Section 447 or Section 403 it would be quite wrong to harass the accused with facing either a further enquiry or a trial.

(3.) In the circumstance the application is allowed and the order of the Additional District Magistrate is set aside and that of the second officer restored.