1. This is a reference made by the District Magistrate, Cehuru, who has recommended that the proceedings taken by the First Class Magistrate Rajgarh, being without jurisdiction be questioned by this Court. The facts relevant for the present purpose are stated as below :
2. On 14-1-1949 a report of theft was made to the Railway Police Rajgarh, who after making necessary enquiry, challaned one Naurang under Section 320, Penal Code, in the Court of the Additional District Magistrate, who transferred the case to the file of Tehsildar at Rajgarh. On 9-2-1949, as a result of further investigations while the Tehsildar was trying it, the case against Naurang was withdrawn. On 16-2-1949, the Police put up another challan based on the same report, against one Hanuman & his brother Rupa. It may be mentioned here that Hanuman had been produced as a prosecution witness in the challan against Naurang. This latter challan was not put up either before the Additional District Magistrate before whom the former challan was put up or before the Tehsildar who had taken cognizance of that challan, bat, it was put up before the Magistrate, First Class Rajgarh. On 123-1949, an application was presented to the trial Court on behalf of the accused raising two objections to the effect that the challan did not lie and that the Magistrate had no jurisdiction to take cognisance of the case. The Magistrate, however, paid no heed to these objections even though by one of them his very jurisdiction was challanged by the accused and they were pressed from time to time. It is alleged on behalf of the accused that the Court put off consideration of the objections by saying that they will be considered at the stage of framing of charge. It is not for the first time that this allegation is made in the appeal. Similar allegation appears to have been made before the Magistrate himself (vide application, dated 9-5-1949, by the counsel for the accused). The proceedings were in spite of the objections continued and ultimately on 4-5-1949 the accused were charged with an offence under Section 379, Penal Code, without deciding the objections. Thereupon, another application, already referred to above, was made on behalf of the accused on 9-5-1949 and it has been very cursorily dismissed, as it appears from the order of the Court of that date. The course adopted by the Magistrate is, to say the least, highly undesirable. The accused thereupon went up in revision to the District Magistrate who has, as had already been stated, accepted the revision petition and made this reference.
3. Two questions have been raised in this reference. Firstly, it is said that the Police, having put up on a filial challan against Naurang, which they subsequently withdrew, had no power left in them to put up another fresh challan against the applicants on the same report. Secondly, it is said that the subsequent challan, if the Police could put up any, could be put up only before that court which bad taken cognisance of the former challan on transfer or before the court before which the first challan was originally put up.
4. It has been argued by the learned counsel for the applicants that the power of the police in the matter of investigation of cognizable offence in respect of which information is given to the police are defined in the Code of Criminal Procedure, that when an investigation has been completed and a case sect up under Section 173 of the Code, the police has no power to resume investigation as is alleged to have been done in this case, that it is no case of the prosecution, that the case was incomplete when Naurang was challaned and was put up under Section 170, Criminal P. C., or that the accused in this case had been mentioned in the former challan as those who had not been challaned and that the entire proceedings beginning with the resumption of investigation by the police when the former case was pending before the Tehsldar, Rajgarh, and ending with the withdrawal of that case and putting up of this fresh challan against the present accused were unauthorised and unlawful and that the First Class Magistrate, Rajgarh, must not have taken cognizance of the new challan. The learned Government Advocate has not controverted the allegation made on behalf of the accused that when Naurang was Challaned, the investigation had been completed or that the names of the accused were not mentioned in the challan as accused not challaned. Under the circumstances, it is very clear that, after the police had once put up a complete challan against Naurang in which one of the applicants--Hanuman--was cited and examined as a witness and the case was pending before a Magistrate, the action of the police in resuming investigation and putting up a new challan against the accused as result of those further investigations was unauthorised and unlawful as has been held in the decision reported in Emperor v. Ali, A. I. R. (19) 1932 Lah. 611: (33 Cr. L. J. 912) cited by the learned counsel for the accused. The challan being unauthorised and unlawful, the proceedings taken by the Magistrate ate invalid.
5. Coming to the second question, the learned counsel for the applicant has argued that, when as a result of investigation of an offence by the police a challan,-complete or incomplete-has been put up by the police before a particular Magistrate, then, any further or supplementary challan, if one can be put up, has to be put up before the same Magistrate before whom the former challan had been put up or before the Magistate who took cognizance of the case on transfer to him and not before any other Magistrate. He contends that the new challan against the accused should have been put up, if at all it could be put up, directly before the Tehsildar, Rajgarh, who was, on transfer of the case to him on the former challan vested with the full seisin of the whole case and not only with the trial of the offence with reference to the accused named in that challan. The learned Government Advocate had no effective answer to make. The argument of the counsel for the accused is based on the provisions of the Code of Criminal Procedure made in Section 192. The relevent words of the section are: 'Any Chief Presidency Magistrate, District Magistrate or Sub. Divisional Magistrate may transfer the case, of which......' The transfer of a case, provided in the section, has been held to mean by the High Courts in the Indian Dominion, the transfer of the judicial investigation into any offence and not merely with reference to some of the accused concerned in the offence: vide Deonarain Singh v. Emperor, A.I.R. (20) 1933 pat. 244: (35 Cr. L. J. 533). In my opinion this contention of the learned counsel is perfectly sound and must prevail. The only Magistrate who could take cognizance of any subsequent challan was the Tehsildar to whom the case had been transferred by the Additional District Magistrate on the previous challan and the Magistrate First Class, Rajgarh, has no jurisdiction to accept the subsequent challan and to proceed to try the accused.
6. The reference made by the District Magistrate, Chum, is accepted, the proceedings taken by the Magistrate, First Class, Rajgarh are set aside and the accused are set free. It is the investigation not properly conducted by the police which is responsible for the accused escaping their trial and the police have to thank themselves for the result.