1. The facts of this case are that on the night between 13th and 14th July 1932, a theft was committed at the house of the prosecuting inspector at Etah. In the course of investigation the police recovered a large portion of the stolen property from the house of several Ahariyas. After completing the investigation 13 persons were challaned and placed on the trial before Ch. Raghuraj Singh. He committed them to the Court of Session. One Chunni Lal was subsequently examined as a prosecution witness and his statement was also sent to the Court of Session as a supplementary statement. After Chunni Lal had been examined as a prosecution witness Mr. K.N. Bhargava, the prosecuting inspector (it may be mentioned that this is not the prosecuting inspector at whose house the theft took place') presented a petition before Ch. Raghuraj Singh that after going through the' entire record it was obvious that Chunni Lal had either committed theft along with other accused or retained the goods knowing them to be stolen and the guilty knowledge of Chunni Lal was apparent. He therefore prayed that Chunni Lal be put on trial under Section 457 as the stolen property was recovered from his possession within 24 hours of the occurrence. Chunni Lal himself was not challaned by the police when the case against the others was going on, and this application was made only after the case against the others had been 'sent to the Court of Session. The Magistrate upon this application of the prosecuting inspector took cognizance of the case under Section 457, Penal Code, and directed Chunni Lal to be taken into custody unless a bail of Rupees 1,000 was furnished.
2. Chunni Lal went in revision to the learned Sessions Judge before whom it was urged that the report of Mr. Bhargava, the prosecuting inspector, was not a report within the meaning of Clause (b), Section 190, Criminal P.C. Another objection was taken that Ch. Raghuraj Singh is only a treasury officer and although he may have had jurisdiction to try the case which he had committed to the Court of Session by reason of the fact that the District Magistrate has the power to transfer any case even to a treasury officer but Ch. Raghuraj Singh had no jurisdiction to take cognizance under Section 190, Criminal P.C., inasmuch as he is neither a Presidency Magistrate nor a District Magistrate nor a Sub-Divisional Magistrate nor any other Magistrate specially empowered in this behalf. This objection was repelled by the learned Sessions Judge on the ground that under the orders of the District Magistrate the case had been transferred to the Court of another Magistrate and so no prejudice seems to have been done to the accused.
3. In revision before me these two points along with another have been reiterated. I am of the opinion that the application by Mr. Bhargava, the prosecuting inspector, of 12th September 1932, is a report in writing made by a police officer and no criticism can be reasonably levelled on that score. As to the second point that the treasury officer had no jurisdiction to take cognizance of the case against the applicant, my attention has been drawn by the learned Assistant Government Advocate to Section 529, Clause (e), Criminal P.C., which lays down that if a Magistrate not empowered by law to take cognizance of an offence under Section 190, Sub-section 1, Clause (a), or Clause (b), erroneously and in good faith does take such cognizance, his proceedings shall not be set aside merely on the ground of his not being so empowered. This is a complete answer to the applicant's objection, and like the. learned Judge I am of the opinion that no prejudice has been done to the accused inasmuch as Ch. Raghuraj Singh is not in charge of the case now but the case has been transferred to another Magistrate. The third objection however has a great deal of, force. While the case against the Ahariyas was proceeding Chunni Lal probably avoided to give evidence. Upon the materials in the possession of the police they were of the opinion that no case had been made out against Chunni Lal and they therefore did not challan him. I have a shrewd suspicion that when that case' was over it was represented to Chunni Lal who was afraid to give evidence that he should entertain no fear and should come forward and give evidence in the case on behalf of the prosecution. He agreed and gave evidence which as I find from the judgment of the Sessions Judge in the case against the Ahariyas, was utilised by the prosecution and believed by the Judge. I cannot therefore escape the conviction that possibly a trap was laid for Chunni Lal into which he fell and I cannot countenance such a procedure.
4. In the case of Easatulla Mian v. Emperor A.I.R 1925 Cal 104, it was held by the Calcutta High Court that to order a fresh inquiry against a discharged co accused after examining and cross-examining him as a prosecution witness and thus gathering from his own mouth the evidence against him is contrary to the traditions of justice in criminal Courts. 'The facts of that case are somewhat distinguishable from the facts of the present case; for whereas in the Calcutta case the accused against whom action was taken by means of a further inquiry was discharged by the Court itself, in the present case no discharge was effected by the Court but the police had taken action against Chunni Lal under Section 169, Criminal P.C. The unfairness, if it can be called unfairness, is of the police and not of the Court as perhaps in the Calcutta case. The principle however ! in both seems to be the same and, as I said before, this practice, wherein there can be a suspicion of entrapping an unwary person, should be discouraged. The result is that I allow this application, set aside the order of Ch. Raghuraj Singh, dated 12th September 1932, taking cognizance of a case under Section 457, Penal Code, against Chunni Lal The bail bond executed by him will be' cancelled.