Patna High Court
Brijnath Sahai vs Babu Lal And Ors. on 13 April, 1956
Equivalent citations: 1957CRILJ290
ORDER Das, C.J.
1. This is a reference made by the learned Additional Sessions Judge of Arrah in respect of an order passed by Mr. D. P. Mallik, Sub-divisional Magistrate of Arrah, in the matter of a complaint filed by one Brijnath Sahai.
2. The short facts necessary for the disposal of the reference are these. Brijnath Sahai filed a petition of complaint for offence alleged to have been committed by certain persons under Sections 426 and 504 of the Indian Penal Code. The petition of complaint was filed before the Sub-divisional Magistrate of Arrah on the 31st of May, 1954. I may state here that one of the persons who was accused by Brijnath Sahai was the driver of the car of the Sub-divisional Magistrate Mr, D. P. Mallik, The Sub-divisional Magistrate sent the complaint for a judicial enquiry and report to another Magistrate, Mr. A. C. Maznmdar. Mr. Mazumdar held an enquiry and submitted a report to the effect that the complaint should be dismissed under Section 203. Code of Criminal Procedure. The learned Sub-divisional Magistrate accepted the report and dismissed the complaint under the provisions of Section 203, Code of Criminal Procedure. Thereafter Brijnath Sahai moved the learned Sessions Judge of Shahabad for a further enquiry into his complaint. In Criminal Revision NO. 169 of 1954 the learned Additional Sessions Judge, to whom the case was transferred, set aside the order of dismissal on the ground that it was not a proper order and that the case should be tried in Court, and the learned Additional Sessions Judge passed the technical order directing a further enquiry into the complaint of Brijnath Sahai. On receipt of the order of the Additional Sessions Judge, Mr. D. P. Mallik passed an order on the 20th of November, 1954 for the issue of a notice to the parties to appear before him. Brijnath Sahai again moved the learned Sessions Judge for revising the order; of the learned Sub-divisional Magistrate dated 20th of November, 1954, on the ground that there was no occasion for a second Judicial enquiry when the learned Additional Sessions Judge had already directed that the accused persons should be put on trial. This second revision application was dealt with by another Additional Sessions Judge, namely, Mr. S. M. Karim who held that the order of the learned Sub-divisional Magistrate, dated the 20th November, 1954, was not happily worded. Mr. Karim rejected the application, but observed that a further enquiry should be done and the case should be taken up by a Magistrate other than Messrs. D. P. Mallik and A. C. Mazumdar.. He further observed that the record should be placed before the District Magistrate for transfer of the case for disposal by some other Magistrate. Mr. D. P. Mallik thereafter sent the records of the case to the District Magistrate. The District Magistrate however, instead of making over the case to some other Magistrate of competent jurisdiction passed an order returning the record to the Sub-divisional Magistrate and asking the Sub-divisional Magistrate to take necessary action in accordance with law.
3. On 19th of March 1955, Mr. D. P. Mallik, the Sub-divisional Magistrate, then passed another order directing one Mr. M. N. Ghani to hold a second judicial enquiry into the complaint and to submit a report, Brijnath Sahai again moved the learned Sessions Judge of Shahabad and asked the latter to refer the case to the High Court, This gave rise to Criminal Revision No. 55 of 1955 and this Criminal Revision was dealt with by a third Additional Sessions Judge, Mr. S. C. Chakravartty. Mr. S. C. Chakravartty rejected the petition, holding that the order complained of and passed by the learned Sub-divisional Magistrate was not illegal and without jurisdiction. A revision application to the High Court against the order of Mr. Chakravartty was summarily dismissed. Thereafter, Mr. Ghani was transferred before he could hold any enquiry into the complaint and the Sub-divisional Magistrate passed an order directing another Magistrate, Mr. P. Sarkar, to hold an enquiry into the complaint, Mr. P. Sarkar, it appears issued a notice to Brijnath Sahai to appear before him with his witnesses. Mr. Brijnath Sahai then filed a petition before the Sub-divisional Magistrate stating that in view of the order passed by the Additional Sessions Judge in the first revision case directing that the accused persons should be put on trial, a fresh enquiry was not justified. Brijnath Sahai drew the attention of the learned Sub-divisional magistrate to the decision in Udit Narayan v. Emperor AIR 1938 Pat 369 (A). On 14th September 1955, the learned Sub-divisional Magistrate rejected the prayer of Brijnath Sahai. Against that order of the learned Sub-divisional Magistrate Brijnath Sahai moved the learned Sessions Judge, and the learned Additional Sessions Judge has now made the reference recommending (1) that the order of the learned Sub-divisional Magistrate directing a second Judicial enquiry should be set aside, and (2) that the accused persons should be put on trial and should be tried by a Magistrate other than Messrs. D. P. Mallik and A. C. Mazumdar.
4. I have heard learned Counsel in support of the reference and learned Counsel against the reference. It seems to me quite clear that in the circumstances of this case, the proper order to pass is to put the accused persons on trial without holding a second judicial enquiry. As was explained in AIR 1938 Pat 369 (A), the order by a superior Court to an inferior Court to hold a further enquiry into a complaint which has been dismissed under Section 203, Code of Criminal Procedure, has acquired what may be called a technical meaning; it means a reconsideration of the complaint which has been dismissed. The nature of the reconsideration will depend on the circumstances of each case. In a ease where the complaint has been summarily dismissed under Section 203, Code of Criminal Procedure, without an enquiry the direction of a further enquiry may well mean that a Judicial enquiry should be held before the complaint is dismissed. Where, however, a Judicial enquiry was held and then the complaint was dismissed under Section 203, and the superior Court held that the order of dismissal was wrong and that the accused persons, should be put on trial the direction for a further enquiry can only be complied with by putting the accused persons on trial. Otherwise the result may be an absurd and impossible position. Suppose an order of dismissal is passed after a Judicial enquiry, and the superior Court directs a further enquiry, the Sub-divisional Magistrate again holds a second judicial enquiry and again dismisses the complaint under Section 203, again the Sessions Judge directs a further enquiry and the Sub-divisional Magistrate holds a third Judicial enquiry. If the process goes on in this way, the result will be an impasse. Obviously that cannot be the meaning of a further enquiry directed by a superior Court.
5. It has been contended before me by Mr, Verma that this very question was agitated before Mr. S. C. Chakravartty who held that the order of the Sub-divisional Magistrate was not without jurisdiction and an application against Mr. Chakravartty's order was summarily dismissed by this Court, Mr. Varma's contention is that a reference on the same question made by the learned Additional Sessions Judge, should not be entertained and should be summarily discharged. I am unable to agree. First of all Mr. Chakravartty merely held that the order of the learned, Sub-divisional Magistrate was nut without jurisdiction. He does not appear to have considered what was the proper order to be passed in circumstances like the present where the Judicial enquiry had already been held and the order of dismissal was found to be wrong, even though the order was in accordance with the report of the enquiring officer. Secondly, even after the order of Mr. Chakravartty and the summary dismissal of an application against Mr. Chakravartty's order by this Court, Brijnath Sahai moved the Sub-divisional Magistrate again and drew the attention of the Sub-divisional Magistrate to the decision in AIR 1933 Pat 869 (A), and the Sub-divisional Magistrate by his order dated 14th of September, 1935, rejected the prayer of Brijnath Sahai. Against that order it was open to the petitioner to move the learned Sessions Judge, and it was open to the learned Sessions Judge to make a reference to this Court. I am unable to accept the contention that the reference is incompetent,
6. I have already expressed the view that in the circumstances of the present case the direction for a further enquiry meant that the accused persons should be put on trial. As a matter of fact, in the first revision application the superior Court said clearly that the order of dismissal passed by the learned Sub-divisional Magistrate was not proper and that it was necessary to thrash out the allegation made by Brijnath Sahai and that Brijnath Sahai should be given a chance to prove his case in the Court. The directions were clear enough, and the learned Sub-divisional Magistrate should have carried out these directions, by summoning the accused persons and putting them on trial.
7. Mr. Varma appearing against the reference has drawn my attention to the decision in Shyamlal Ruia v. State , I do not think that that decision is in any way at variance with the earlier decision in AIR 1938 Pat 369 (A).
8. Having given my best consideration to the circumstances, of this case, I am of the view that the direction for a further enquiry in this case meant that the accused persons should be put on trial. I would accordingly accept the reference and set aside the order of the learned Sub-divisional Magistrate dated the 14th of September, 1955. The learned Sub-divisional Magistrate will now summon the accused persons and then transfer the case to a Magistrate of competent jurisdiction other than Mr. A. C. Mazumdar. The reference is disposed of accordingly. I need add only this : the learned Sub-divisional Magistrate should have informed the District Magistrate at the earliest opportunity that one of the accused persons was a driver of his car and that the case should be dealt with by some other Magistrate, It is not clear to me from the record of the case whether the learned District Magistrate was aware of the circumstance that one of the accused persons was the driver of the learned Sub-divisional Magistrate. If he was aware of that circumstance, it was his duty to transfer the case to some other Magistrate of competent jurisdiction.