1. This is an application in revision to set aside two orders, dated respectively the 17th and 19th of May 1909, purporting to have been made under the provisions of Section 476 of the Code of Criminal Procedure. That section provides that 'when any Civil, Criminal or Revenue Court is of opinion that there is ground for enquiring into any offence referred to in Section 195 and committed before it or brought under its notice in the course of the judicial proceeding', such Court may send the case for enquiry or trial to the nearest Magistrate of the 1st class.
2. The petitioners contend that the proceeding in which the offence in question is alleged to have been committed, was not a proceeding in a Civil, Criminal or Revenue Court, nor was the matter brought under the notice of the Court in the course of a judicial proceeding and that being so there was no jurisdiction to make the order complained of. As neither of the lower Courts have set out the course of the proceedings which culminated in the final orders now challenged in revision, we have had some difficulty in dealing with this application. So far as we have been able to ascertain, however, the facts appear to be as follows: A report was made at the Jaswant nagar thana that the Head without jurisdiction-Magistrate's action under Section 47v not sustainable. Master of the school there had been guilty of a certain offence. The Sub-Inspector reported the matter and apparently considered that the case was not a true one. The District Magistrate must have received notice of this report, for he verbally directed the officiating Superintendent of Police to enquire into the case. This appears from the opening words of the Superintendent's report. The Superintendent went to the place and held an investigation and came to the conclusion that the charge was not a true one. He, however, suggested that a Magistrate should be sent to enquire into the matter. The District Magistrate, thereupon, ordered a Deputy Magistrate of the 1st class to proceed to the spot and hold a Magisterial enquiry into the case. This the Deputy Magistrate did, with the result that he came to the conclusion that the case was entirely false. He made a report to that effect and recommended amongst other things that certain witnesses who had supported the charge on oath in the course of his enquiry should be prosecuted for giving false evidence. The District Magistrate accepted this suggestion, but being of opinion that the Deputy Magistrate who had held the enquiry was the proper person to take action under Section 476 of the Criminal Procedure Code, he directed him to do so.
3. The Deputy Magistrate, thereupon, proceeded to make the orders complained of presumably acting under Section 476. The question we have to consider is under what section of the Code or other legal sanction did the Deputy Magistrate hold his enquiry. It is clear that he did not act under an order passed by virtue of the powers given by Section 202 of the Code. The Assistant Government Advocate has argued that the enquiry was held under Section 159 of the Code. That section provides that when a Magistrate receives a report such as is mentioned in Section 157, he may direct an investigation, or if he thinks fit, at once proceed or depute a Subordinate Magistrate to hold a preliminary enquiry into the case. It is contended on behalf of the petitioners that proceedings can only be taken under Section 159 when the order is based upon the report referred to in Section 157. It is further, contended that Section 159 gives an alternative procedure only, and that as the Distinct Magistrate had already directed an investigation by the Superintendent of Police he could not subsequently, direct an enquiry by a Magistrate. As to the first point it is clear that the order to the Deputy Magistrate was passed after the Superintendent of Police had been directed to investigate.
4. It was not until the report upon that investigation had been submitted that the Deputy Magistrate was directed to hold an enquiry. This being so the case is very similar to that of Kandkaialal A.W.N. (1899) 87. It was held in that case by Strachey, C. J. that a Magistrate could only hold an enquiry under Section 159 when the order directing it was passed in consequence of a report submitted under Section 157, which report precedes an investigation. A similar view was taken by a Bench of the Calcutta High Court in the case of Durzi v. Naurangi Lall 4 C.W.N. 351. We think that we ought not to disregard these cases. In this view the orders now before us in revision were passed without jurisdiction. The Sessions Judge does not appear to have realized the difficulties of the case, though it is only fair to him to say that the grounds taken before him in revision were not calculated to bring those difficulties before him. He, however, expended an unnecessary amount of time and labour in dealing with those grounds. It would have been quite sufficient to have remarked that they were misleading and unsubstantial, without drawing up a proceeding on the subject.
5. We allow this application and set aside the orders of the 17th and 19th May 1909 and any orders that may have resulted from them.