George Knox, J.
1. Th is case has been / very properly reported by the learned Sessions Judge of Azamgarb. The order made by the learned Magistrate under Section 476, Criminal Procedure Code, is entirely unwarranted. The facts so far as they appear from the record are that on th0e 22nd November 1909 a telegram purporting to be from Chediram, chaprasi, was received by the Collector of Azamgarb. The telegram runs as follows:
I was on duty. Kurk Amin Naib Tehsildar, Rassak, chaprasi and Plague Doctor forcibly broke my house door and beat my family and inoculated plague tika.
2. The telegram appears to have been sent by the Collector to the learned Magistrate who tried this case. Presuming always that the learned Magistrate is aware of the contents of the Criminal Procedure Code and acts in accordance with its provisions, it is evident that he did not treat the telegram as a complaint.
3. He did not at once examine the complainant upon oath and his order dated 22nd November cannot be considered as an. order passed under Section 202, Criminal Procedure Code. It is only when the complainant has been examined and reasons recorded for not being satisfied as to the truth of the complaint that an enquiry can be made under Section 202. The result is that there is on the file no complaint and if any person did institute a Criminal prosecution against the Naib Tahsildar of Gausi, the person, who instituted the complaint would be the learned Magistrate himself. He apears to have taken action under Section 190 Clause (c) of the Criminal Procedure Code as he himself says the result of the enquiry by the Tahsildar was to the effect that the miscelled complaint was false. I am surprised that the learned Magistrate did take any farther action. The chaprasi seems to have contented himself with sending the telegram to the Collector, and for the learned Magistrate under these circumstances to have sent for the chaprasi and recorded his statement was practically kindling a fire which was only then smoldering. The chaprasi appeared before the Magistrate and made a statement. He admitted having sent the telegram to the Collector and added 'I have heard the contents thereof just now and they are correct.' Now inasmuch as the chaprasi had said that he was not present during the transaction and had not seen anything at all, the learned Magistrate had no option but to infer that the chaprasi was not acting on his own knowledge but upon hearsay evidence. When he said that the contents of the telegram were true, what he really did say was 'I have correctly stated in the telegram information which I have heard from others and believe to be true.' It is strange how Courts and officials will in affidavits and in statements accept matters like this which are purely hearsay. The chaprasi's statement amounted to nothing at all and the learned Magistrate should have appraised it as such. He might have explained to the chaprasi the danger of relying upon the statements of others and after that he should have filed the proceedings. The chaprasi made no complaint of any kind. I am not dealing with the case of a person regarding whom it can be said that he instituted proceedings maliciously upon the statements of others which he had reason to believe to be false. There is absolutely nothing on the record to show that the chaprasi was instigated by malice' in the present case. His action is perfectly natural. As I take it, his house was entered in his absence, by a party of well meaning officials, who without consulting him (and be ought to have been consulted in the matter) proceeded to inoculate his wife for plague. The wife was naturally flustered, gave an exaggerated account of what had happened to her husband and the latter very much upset by what bad occurred sent an injudicious telegram to the Collector. This is the furthest to which the matter can be pushed, and if the learned Magistrate bad only exercised common sense, ho would have let the matter drop. It follows, therefore, that a case under Section 211 against the chaprast would be utterly without foundation. Not content with directing a prosecution against the chaprasi, the learned Magistrate went on to direct that 9 witnesses be charged under Section 193, Indian Penal Code. The first witness is tin gal Kishore, and the false statement be is supposed to have made is: 'I have heard that either the Naib Tahsildar or the Doctor entered the house of Musammat Sukhli and beat her.' This was no evidence at all and the learned Magistrate should never have placed it upon the record. By no means could it be made the subject of a prosecution under Section 193. The same remarks apply to the statements said to have been made by Nadir Khan, Jamna Dhani and Nagar. The same remarks also apply to the statement put by the learned Magistrate into the mouth of Elahi Jolaha. Elahi Jolaha did not say that the Naib Tahsildar, Doctor and tahsil peon entered Sukhli's house and unjustly beat her. He most positively said that no one entered Sukhli's house in his presence, nor did be see anything. Then Musammat Sukhli, the wife, is charged under Section 193 for having said that 'one person beat me with a book inside my house.' This statement has been put very differently from the record in the vernacular. Upon what foundations the learned Magistrate came to the conclusion that the evidence was false, it is very difficult to say. Mnsammat Sukhli's statement stands uncontradicted; it is not in itself improbable or impossible and the presumption that the learned Magistrate ought to have drawn, until it was rebutted or shown aliunde to be improbable or impossible, is that the statement is a true statement. The same remarks apply to the statements said to have been made by Jhangar Jolaha and Muhammad Tahir. The learned Magistrate in support of his action says: Out of the witnesses produced in support of the complaint, six are hearsay and two eye-witnesses. The statements of the eye-witnesses cannot be relied on as there are great discrepancies in them and hearsay evidence is not admissible as evidence.' If hearsay evidence, as the Magistrate says, is not admissible in evidence, the question naturally arises why did the learned Magistrate record it at all. To record evidence which the Magistrate knew t not to be evidence and then to act upon it in the mariner that has been done is an action which I should never expect to find taken by a Magistrate of the first class. Presumably the two eye-witnesses to whom he-refers are Miuammat Sukhli and Jhangar Jolaha. I have read their statements and I cannot see where the discrepancies are. Then too, I cannot find any foundation for what the learned Magistrate says that the hearsay witnesses have given totally false evidence.
4. The action of the learned. Magistrate can in no way be supported. I direct that the order passed by him on the 20th December 1909 be set aside and the bonds, if they have been entered into be discharged.