Patna High Court
Sitaram Tewari And Anr. vs Musammat Kausilia on 6 February, 1928
Equivalent citations: 109IND. CAS.508
JUDGMENT Jwala Prasad, J.
1. This is an application against the order of the District Magistrate of Monghyr, dated the 15th December, 1927, directing further inquiry into the complaint of Musammat Kausilia against the petitioners. The lady charged the petitioners with misappropriation of her money in the capacity of her gomastas.
2. The Police made an inquiry and reported that the dispute was of a civil nature. The Sub-Divisional Magistrate agreeing with the Police report held that there was no evidence of misappropriation and that it was a question of partnership and accounts. He dismissed the complaint under Section 203 of the Code of Criminal Procedure and referred the complainant to the Civil Court.
3. The learned District Magistrate set aside the order of dismissal and directed further inquiry upon the ground stated by him that "the petitioner is a widow and it is, therefore, necessary to give her every opportunity to get her dues."
4. The Sub-Divisional Magistrate then summoned the accused under Section 408 of the Indian Penal Code by his order of the 17th December stating that "the District Magistrate has set aside the order of dismissal and directed further inquiry".
5. The petitioners again moved the District Magistrate who passed the following order on the 22nd December, 1927".... I had no power to direct in what way the Sub-Divisional Officer should make the further enquiry which was ordered by me on 15th December, 1927, and cannot set aside his order whether I wish to or not. The motion is, therefore, summarily rejected."
6. There is an unfortunate omission in the prayer portion of the petition as to the order of the Magistrate passed on the 17th December, 1927, and that of the District Magistrate passed on the 22nd December, 1927, though they have been mentioned in paras. 5 and 6 of the petition. The obvious intention was to include in the prayer the aforesaid orders also, for this has been the grievance of the petitioners who actually moved the District Magistrate against the order of the Sub-Divisional Magistrate, dated the 17th December, 1927. It seems to me that the order of the Sub-Divisional Magistrate summoning the accused without holding any further inquiry as directed by the District Magistrate was wrong. Section 436 of the Code of Criminal Procedure empowers the District Magistrate to direct further inquiry and not to order the trial of the accused. In fact the District Magistrate simply directed further inquiry to be held. The Sub-Divisional Magistrate having once dismissed the application and having been directed to hold further inquiry could not at once summon the accused without having held an inquiry and exercised his judgment under Section 203 of the Code of Criminal Procedure that it was a fit case in which the accused should be summoned.
7. The order of 17th December summoning the accused is, therefore, premature and must be set aside, and the Sub-Divisional Magistrate is directed to hold further inquiry under Section 203 of the Code of Criminal Procedure and dispose of the matter under Sections 202 and 203 of the Code.
8. As to the order of the District Magistrate directing further inquiry, I do not think that it should be set aside, though it would have been much better if the District Magistrate had given reasons other than those given in his order. He does not refer in his order to the merit of the case requiring further inquiry. The reason given by him is that the petitioner is a widow and, therefore, she should get every opportunity to get her dues. The question was whether there was any evidence or not. The Sub-Inspector of Police reported that there was no evidence and that the dispute was of a civil nature, and the Sub-Divisional Magistrate agreed with the Police report. It would have been much better if the District Magistrate had given reasons in his judgment for not accepting the view of the Police and the Sub-Divisional Magistrate. However, as he has ordered an inquiry to be held, I do not think that it should be set aside, for it will be an ex parte inquiry in which the petitioners will not be summoned and need not appear.
9. Therefore, the order of the District Magistrate dated the 15th December is affirmed.