Ram Labhaya, J.
1. This petition of revision is directed against an order of Shri A. Mukherjee, special Magistrate dated 23-8-1955, by which he held that on the charge-sheet submitted to him, he had taken cognizance of the case and that there was no ground for quashing the charge-sheet.
2. The petition for the quashing of the charge-sheet was made by the accused under the following circumstances:
3. The petitioner is an officer of class II of North Eastern Railway. At the relevant date he was Inspector of Works. On receipt of confidential report Shri G. C. Deb, Sub-Inspector of Police of Special Police Establishment informed the Deputy Commissioner of Police, Special Police Establishment that the petitioner had committed offences under Sections 408 and 477A, Penal Code in respect of 3706 bags of cement belonging to the Railways. The case was registered on 19-5-1954.
Shri G. C. Deb himself investigated the case under orders of the Deputy Superintendent of Police. On 27-1-1955 he submitted his final report under Section 173, Criminal P.C. praying that the case be closed. He did so in pursuance of the order of the Inspector General of Police (Special Police Establishment) who came to the conclusion that the evidence collected was insufficient for proceeding with the case. The investigating officer prayed that orders may be passed to close the case.
The final report was placed before the Special Magistrate of Shillong on 18-2-1955. He observed that there appeared to be 'some evidence for a prima facie case on some specific items e. g. issue of 300 bags of cement'. He felt inclined to call for a charge-sheet but before doing so wanted to discuss the matter with I./C. and others. On 2nd March the case was discussed with the investigating officer and others by him and previous reports were also seen.
The learned Magistrate directed further investigation on the lines suggested by him. On 22nd June a further report was. put up. On this report the public prosecutor was heard and the direction given was in the following terms: 'Call for charge-sheet under Sections 477A and 408, I.P.C. in respect of 300 bags of cement.' The charge-sheet was submitted on 4-7-1956. The initiation of proceedings on the basis of the charge-sheet was objected to on behalf of the accused.
Argument was heard and the final order was passed on 23-8-1955 by which the learned Magistrate ordered that he shall proceed with the case on the charge-sheet, unless the petitioner moved the appropriate Court to have the charge-sheet quashed. The petitioner has moved this Court for quashing the charge-sheet or in the alternative for directing a transfer of the case to some other Court of competent jurisdiction.
4. I have heard the learned Counsel for the petitioner at some length. He has argued that there is no specific provision in the Code by which a Magistrate may order the police to submit a charge sheet. Even if he is of the view that there is reason for believing that an offence has been committed, he may order investigation but not direct or order that a charge-sheet must be submitted. The direction does not appear to be justifiable under any provision. Mr. Medhi made no attempt to support it. The learned Magistrate on receiving the Police report had however power to summon the accused if he so thought.
Demanding a charge-sheet was a rather irregular way of summoning the accused. In the circumstances the irregularity by itself does not justify quashing of the charge-sheet. The accused has been summoned as the Magistrate thought that there was some basis for further inquiry into the allegations against the accused. The prayer therefore for quashing the charge-sheet in order that the proceeding should terminate cannot be granted.
5. In regard to the alternative prayer the petitioner stands on a surer footing. The learned, Magistrate first directed further investigation on the lines which occurred to him. Even the second report was favourable to the accused and after that as a result of further discussions he himself on his own authority directed a charge-sheet to be issued. There cannot be any manner of doubt that in the circumstances of this case it is not desirable that the learned Magistrate should try the case himself. There may be basis for suspicion or for the belief that an offence has been committed. The learned Magistrate in this case acted on that basis in directing a charge-sheet to be put in respect of a comparatively small quantity of cement. The case in these circumstances would appear to fall under Section 190(0, Criminal P.C. and it would be desirable that the accused should have the option of having his case tried by some other competent Magistrate,
In order to meet the ends of justice it is necessary that the learned Magistrate who has interested himself in the case at the investigation stager & has come to some conclusion about the merits of the case be not allowed to try it. He by his own participation in investigation put himself more or less in the position of the complainant. The learned Government Advocate does not dispute this position and concedes that it is expedient that the case be ordered to be transferred to some other competent Court for disposal according to law and it is-ordered accordingly. The case shall be sent to the District Magistrate who will send it for trial to some Magistrate other than Mr. Mukherjee (the Special Magistrate) competent to try it.