1. The facts out of which the present application arises are as follows. Opponent No. 1, who is the widow of one Narsi Sawal, was the complainant against the petitioner and opponent No. 2 whom she charged with criminal breach of trust and abetment thereof and using a forged share-transfer form in respect of ten ordinary shares of the Tata Iron and Steel Co. belonging to her, under Sections 406 and 471, read with Section 109 of the Indian Penal Code. The case was tried in the Court of the Third Presidency Magistrate, Bombay, who issued process and summons for the production of account books relating to the alleged transaction, and he fixed the case for hearing on July 3, 1934. On July 2, 1934, opponent No. 1 applied for a reference of the case to the Criminal Investigation Department under the provisions of Section 202 of the Criminal Procedure Code. That application was rejected on the ground, apparently, that the Court had no jurisdiction, having once ordered process to issue. On the day of the hearing, i.e., July 3, opponent No. 1 was absent, and the learned Magistrate, purporting to act under Section 259 of the Criminal Procedure Code, discharged the accused. On the very next day the complainant (opponent No. 1) filed a fresh complaint on the same facts and added a prayer that the case should be referred for investigation to the police under Section 202. This prayer was granted by the learned Magistrate. Thereafter the petitioner applied for a revocation of the said order, stating that the prayer was one calculated to circumvent the provisions of the law. The learned Magistrate rejected this application, and the present application has been filed in order to get that order set aside.
2. Mr. Carden Noad for the applicant has argued that in this case Section 259 of the Criminal Procedure Code did not apply, as, in the first place, an offence under Section 406 is cognizable and non-compoundable and Section 259 applies only to offences which are either compoundable or non-cognizable, and that, secondly, an offence under Section 471 being triable by a Court of Session, a complaint under that section could not have been disposed of under Section 259, though the accused could have been discharged under Section 209, Criminal Procedure Code.
3. The second point urged by him is that the complainant deliberately absented himself on July 3 in order to get round the difficulty of the Magistrate, on his previous application, in not having been able to refer the case for investigation by the police, a procedure evidently keenly desired by the complainant: it is contended that the complainant's action in getting the accused discharged first and then filing a fresh complaint and thereafter applying for a reference to the police amounted to an abuse of the process of the Court.
4. Mr. Carden Noad's third contention is that the Magistrate seems to have thought that he had no discretion with regard to the application for referring the case to the police for an investigation, and that he appears to have felt that he was bound to grant the application, as the following remarks occurring in his judgment would show:
She did so and by whatever motive she (the complainant) may have been prompted it (the prayer for such reference ) was a prayer the Court should not have denied her.
5. The Magistrate also states:
Now if the case is refiled in my opinion a party doing so must be entitled to the rights and privileges attaching to a person who files a case for the first time.
6. Mr. Carden Noad contends that in a matter like this no rights or privileges can attach to the complainant, the matter being one to be decided by the Court alone.
7. On behalf of the complainant, opponent No. 1, Mr. Thakor points out that the application does not disclose that she relies on the alleged illegality of the order passed under Section 259 by the learned Magistrate, that that order is not really before the Court at present and that not even a copy of the order has been furnished along with the application; and he contends that this Court should not, therefore, now consider the question of illegality or otherwise of that order. He contends that there are only two questions before the Court, viz., whether the complainant was not competent to file the second complaint, and, if so, whether the Magistrate was wrong in referring the case to the police. His argument is that the accused having been discharged with respect to the first complaint, there was no bar to the second complaint being filed. This has been decided in numerous cases, e.g., Emperor v. Amanat Kadar (1928) 31 Bom. L.R. 146 and Mir Ahwad Hossein v. Mahomed Askari I.L.R (1902) Cal.726 , wherein it is held that discharge does not amount to an acquittal and that the Magistrate can therefore entertain a fresh complaint. Mr. Thakor has also argued that the order of the Magistrate referring the case for investigation to the police is not inherently wrong, that the accused not having been yet summoned to appear has no locus standi or right to make the present application, and that the order of the Magistrate is really more favourable to him than if process had been issued against him, as it is possible that the police may report that there is no case against the accused. He also appeared to contend that the order by itself does not show that' the Magistrate held that he had no option in the matter, as alleged by Mr. Carden Noad, as the Magistrate appears to have considered the application on its merits, though no reasons were given.
8. In our opinion Mr. Carden Noad is right in his contention that the legality of the Magistrate's order under Section 259 of the Criminal Procedure Code should be considered by this Court, and that such an order should not have been passed by him, particularly with respect to the offence punishable under Section 406 of the Indian Penal Code. As the offences punishable under Sections 406 and 471 were inter-related and clearly involved in each other, this, in our opinion, was not a case in which the accused should have been discharged with respect to the offence punishable under Section 471, even under Section 209 of the Criminal Procedure Code, which (and not Section 259) was the appropriate section under which such action could have been taken, the offence being one triable by a Court of Session.
9. This being our view, the order of the Magistrate purporting to be passed under Section 259 was manifestly illegal, and it therefore vitiated the filing of the subsequent complaint and the proceedings thereafter. We also think that the complainant deliberately stayed away on July 3, 1934, in order that the accused might be discharged, so that he could file a fresh complaint and then pray for a reference to the police, and that his conduct in this respect was not straightforward and was intended to circumvent the provisions of the law and to take an unfair advantage of the Court's powers. Finally, we think that in the matter of granting the prayer of the complainant requesting a reference to the police, it is not clear whether the learned Magistrate exercised the discretion vested in him in the proper manner. For one thing, Section 202 requires a Magistrate to record his reasons in writing if he thinks it fit to postpone the issue of process and direct an inquiry by a police-officer for the purpose of ascertaining the truth or falsehood of a complaint. Secondly, the complainant has certainly no 'rights and privileges' under this section to require the Court to refer the case to the police, and the Magistrate's remark-' By whatever motive she may have been prompted it was a prayer the Court should not have denied her'-appears to show that the learned Magistrate thought that he could not act otherwise than to send the matter for investigation by the police. This is a mistaken view, and is not at all justified by the wording of Section 202.
10. We, therefore, think that the proper order to be passed in this case will be not only to set aside the order which is the subject-matter of the application, but also to set aside all the proceedings subsequent to the filing of the first complaint and its verification, leaving it to the Magistrate to consider afresh, in the light of our remarks, whether this is a fit case in which the issue of process compelling the accused's attendance should be postponed and investigation by the police directed, and we order accordingly.