1. The learned Government Advocate has now obtained particulars and I am made acquainted with the proceedings taken by the District Magistrate of Farrukhabad. It appears that the District Magistrate received a complaint from a patwari school teacher that he had not received his salary during the time he was on leave. It appears to have been the duty of the applicant Anand Behari Lal to distribute the pay, and the District Magistrate suspected that Anand Bihari Lal was guilty of embezzlement. He immediately issued a warrant for Anand Bihari Lal's arrest and directed a subordinate Magistrate to hold an inquiry. There has been no examination of the complainant as is emphatically directed in Section 200, Criminal P. C, see Section 202(1)(a). There does not appear to be any authority given to a Magistrate to keep an accused person in custody just as is given to the police under Section 167 of the Code to enable the police to carry out further investigation. In my opinion custody can follow only where a definite charge has been made and the complainant has been examined. The learned Government Advocate suggested that the District Magistrate had taken action under Section 190(1)(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence had been committed. If such was the case the District Magistrate had no jurisdiction under Section 191 and he ought to have transferred the inquiry preparatory to commitment to sessions or trial to a subordinate Magistrate and was not entitled to take action under Section 202 himself. It is apparent that he did not make a complete transfer from the fact that he entertained the application for bail himself on 20th November last. It is desirable that action should be taken according to law. Either the District Magistrate himself should examine one or more complainants and take action under Section 202 of the Code, or, if he is taking action on his own knowledge, he should transfer the proceedings completely to the Court of a Subordinate Magistrate so that Magistrate may proceed to inquiry or trial after recording the statement of the complainant. So far as can be gathered from the provisions of the Code, a Magistrate has not the powers of a police officer to investigate and keep an accused person in custody for the purposes of such investigation. It was also open to the District Magistrate to make a report to the police who could then have taken action under Section 167 of the Code.
2. As matters stand at present Anand Bihari Lal is entitled to bail. I direct his release on bail on his own bond in Rs. 2,000 with two sureties in Rs. 2,000 each to the satisfaction of the District Magistrate. If there is any apprehension subsequently that Anand Bihari Lal in spite of giving sureties is likely to abscond any Magistrate trying the case is permitted to cancel this order for reasons to be stated in writing and order the arrest of Anand Bihari Lal.