1. In this case one Haidar Husain, an agent of two persons, Baldeo Prasad and Lachhman Prasad, lodged a complaint under Section 409 of the Indian Penal Code against one Nand Kishore, on the 10th of April, 1923. That case was inquired into and dismissed under Section 203 of the Criminal Procedure Code on the 20th of April, 1923. The subsequent proceedings deal with the question of whether Haidar Husain and Baldeo Prasad and Lachman Prasad should or should not be prosecuted under Section 211 of the Indian Penal Code for having lodged or abetted the lodging of a false complaint against Nand Kishore. In view of these subsequent proceedings and the delay that had occurred in taking action against Baldeo Prasad and Lachman, it is important to note that no new facts are alleged to have come to light since the 20th of April, 1923, when the case against Nand Kishore was dismissed. This is important because there has been a tendency to lay down a hard-and-fast rule that delay is a ground for setting aside an order for prosecution. It may, under certain circumstances, be almost a sufficient ground in itself, but, in. other cases, it may be no ground at all. It is possible to imagine a case in which the commission of an alleged offence may not have actually come to light for many months or even years after it had been committed. In the present case it is clear that all the facts which justified, if they do justify, the prosecution of these men were known on or before the 20th of April, 1923, when the case was dismissed.
2. The next step was an application on the 23rd of April, 1923, by Nand Kishore to Mr. Christie, then City Magistral, who had tried the original case, for sanction to prosecute Haidar Husain under Section 211 of the Indian Penal Code. No attempt was then made to obtain sanction to prosecute Haidar Husain's employers, Baldeo Prasad arid Lachman Prasad. The sanction was granted on the 6th of July, 1923. Eventually, owing to the passing of Act XVIII of 1923, which came into force on the 1st of September, 1923, it was thought necessary, and steps were taken, to alter the sanction granted by Mr. Christie to a complaint under Section 476 of the Criminal Procedure Code. This apparently, so far as I am informed, brought the matter to the notice of the Prosecuting Inspector, who then applied, on the 30th of October, to Babu Prem Chand Seth who had succeeded Mr. Christie as City Magistrate for an order under Section 476 of the Criminal Procedure Code, against Baldeo Prasad and Lachman Prasad, the employers of Haidar Husain. It will be noticed then that no steps whatever were taken against Baldeo Prasad and Lachman Prasad from the 20th of April, when the original case was dismissed, to the 30th of October, 1923. The learned District Magistrate, in referring the case, speaks of 'the obstructive tactics of the accused.' It is true that Haidar Husain was taking the matter of his own prosecution from court to court. It is probably true that that involved the record going from the court of the City Magistrate to the Sessions Court and to the High Court, but I cannot see, even if that is so, that it accounts in any way whatever for Nand Kishore not having applied to prosecute Baldeo Prasad and Lachman Prasad at the same time that he applied against Haidar Husain, when all the materials that he was ever going to get were already in his possession and in that of the court. Nor do I think that the Prosecuting Inspector was justified in making in application against Baldeo Prasad and Lachman Prasad so any months afterwards. It is quite likely, and I am certainly ready to accept, that he was in no way to blame for an application in regard to these two men not having been made before. But I do think that after a lapse of nearly six months, he should have declined to take any action. It is not necessary for me to determine whether this delay would or would not be sufficient in itself for setting aside the order for prosecution, as there are other points which will have to be dealt with and one of which will appear by itself sufficiently strong to make it inevitable that the reference of the District Magistrate be returned and the order of the Assistant Sessions Judge quashing the complaint under Section 476 of the Criminal Procedure Code against Baldeo Prasad and Lachman Prasad be maintained.
3. To make the next point clear, it is necessary to add one or two further facts. On the 30th of October, 1923, as I Have already stated, the Prosecuting Inspector applied to prosecute Baldeo Prasad and Lachman Prasad in the court of Babu, Prem Chand Seth who had now become City Magistrate. On the 21st of January, 1924, the Prosecuting Inspector applied again to Mr. Christie, now no longer in charge of the City, for an order under Section 476 of the Criminal Procedure Code against Baldeo Prasad and Lachman, Prasad. It is not, very clear how he came to make a second application; whether it was of his own initiative, because he thought it better to apply to the Magistrate who had already granted a similar order against Haidar Husain, or whether it was due to some objection raised by Baldeo Prasad and Lachman Prasad in the court of Babu Prem Chand Seth. Both suggestions are made but it is not very material to determine exactly what motives led to the filing of the second application. It was, in fact, filed and Mr. Christie, on the 8th of February, 1924, passed an order under Section 476 of the Criminal Procedure Code against Baldeo Prasad and Lachman Prasad. That order was appealed to the learned Assistant Sessions Judge, Mr. Ram Chancier Saksena, who set it aside on the 14th of March, 1924. He has referred to the delay that took place, but the real point on which he based his order setting it aside is that Mr. Christie had no jurisdiction to pass the order under Section 476 of the Criminal Procedure Code when he had ceased to be acting in the capacity of City Magistrate in which capacity he had decided the original case. The learned Assistant Sessions Judge refers to the cases in 1 Allahabad Law Journal, pages 315 and 318. He remarks that authority to the contrary has been shown to him, bul he does not say what authority. The learned District Magistrate in referring the case says: 'My object in making this application is to obtain a clear, ruling of the Hon'ble Court with reference to proceedings under Section 476, Criminal Procedure Code, in the case of a Magistrate who has been transferred to another court before such proceedings are taken.'
4. The learned District Magistrate remark's: 'There appears to be a support for both the views expressing (sic) in the rulings of the Hon'ble High Court.'
5. He does not tell this Court wherein lie finds the conflict. It appears to me beyond the shadow pf a doubt that Mr. Christie had no jurisdiction whatever. It has been clearly pointed out in the case of Muhammad Ibrahim v. King-Emperor (1914) 12 A.L.J. 1003, and In the Matter of the Petition of Nawal Singh (1912) I.L.R. 34 All. 393, that a successor in a court is the same court as his predecessor in that court. The corollary to this is perfectly clear that the predecessor who has departed to another court can no longer be held to be a presiding officer of the first court. There have been some doubts expressed by other High Courts, but they have since mostly, if not all, come to this view. In any case, the view of this Court has long since been clear. Mr. J.M. Banerji, for the accused, also rightly relies on the fact that the wording of Section 476 of the Criminal Procedure Code is now different to that under the old Code, making the matter still more clear. He points out that now the offence must be one which appears to have been committed in or in relation to a proceeding in that court. In the present case that cannot, by any stretch of imagination, mean anything but the court of the City Magistrate and that it is only that court that can pass the order under Section 476 of the Criminal Procedure Code.
6. The last point that I have to notice is that the District Magistrate has himself referred this case to the High Court through the Sessions Judge instead of through the Legal Remembrancer. Had I noticed this, when the reference was first put up, it would undoubtedly have been my duty to refuse to accept the reference and to return it to be produced before this Court through the proper channel. As to what that proper channel is, a reference to the cases of Queen Empress v. Shere Singh (1887) I.L.R. 9 All. 362, Emperor v. Jamna Bai (1906) I.L.R. 28 All. 91 and Emperor v. Ganga (1914) I.L.R. 36 All. 378, will make clear. So far as this Court is concerned, it is for the District Magistrate to act either through the Government Advocate or through the Legal Remembrancer as he may be advised to be the proper course. I understand from the Assistant Government Advocate that he should act through the Legal Remembrancer, but that is not for me to determine. It is sufficient for me lo say that this Court will not ordinarily accept a reference direct. When the matter was brought to my attention, I thought as the case was now before the Court, it was best to deal with it. The object of the rule I have stated is sufficiently clear, for it only carries out the principle underlying Section 435, Clause (4), namely, that there should be no judicial action by an inferior court by way of criticism of its superior court.
7. For the reasons I have already given, the order of the Assistant Sessions Judge is maintained and the reference returned.