1. This is a criminal revision case against the order of the Presidency Magistrate dismissing a complaint under Section 203, Criminal Procedure Code. The chief ground of attack is that the Magistrate has ignored the proper procedure under Sections 202 and 203 and adopted a procedure for which there is no warrant and which is in many ways open to objection.
2. It appears that the procedure is one which has been for many years in practice in that Court. It is that when a complaint is put in and sworn to, the Magistrate without hearing the complainant's case or his witnesses issues notice to the accused to appear and show cause against the issue of process, hears what the accused has to say, examines any witness he wishes to have examined and then decides whether the com-plaint shall be received or not.
3. It is argued that this procedure is justified by Section 202. It may be said that it is not prohibited by the letter of that section but it is clearly contrary to the spirit of that section and to the general principles of the Code. Section 202 clearly implies that an accused is not to be troubled unless the Magistrate is first satisfied that the complaint is prima facie true, and therefore the case is made out which the accused must rebut. To call upon an accused to appear and disclose his defence before the Magistrate has satisfied himself that the complaint is prima facie true is contrary to the spirit of the whole procedure of criminal trials. It, is no justification to say that the accused is willing to adopt that procedure, be-cause if he refused to adopt it, he will do so at his peril and the Magistrate would at once conclude that there was a good case against him. ' It is a procedure most unfair to the accused. He is in effect compelled not only to state, but to substantiate his defence, before the prosecution has substantiated any case against him, and this is the exact opposite of the principle underlying the prescribed procedure. It is not until the prosecution case has been fully and thoroughly put forward and tested by cross-examination that the accused is to be called upon to put forward his defence. Under the procedure now adopted if the Magistrate rejects the defence and considers that there is a case to go on with, then the accused has to put his case forward before a Magistrate who has already rejected his defence. From this point of view alone the procedure is indefensible.
4. It is no less unfair to the prosecution. The result, I suppose, in a majority of cases is that the complaints are thrown out without the complainant having been allowed to put forward his full case at all. The Magistrate accepts the defence before he knows what the full prosecution is.
5. The meaning of Section 202 is perfectly clear. It is that the accused is not to be called upon to appear unless and until the Magistrate has satisfied himself from the complainant and his witnesses that there is a prima facie case against him.
6. This procedure has been condemned by this Court so far back as 1912 in Sheik Meeran Sahib v. Ratnavelu Mudali (1912) I I. R 37 M 181 : 25 M L J 1 where Bakewell, J. remarks:
It appears to me that the object of the procedure prescribed by Chap. XVI, which is entitled 'Of Complaints to Magistrates,' is the separation of unfounded from substantial cases at the outset, and to prevent innocent persons from being brought into the Police Courts and subjected to the annoyance of frivolous charges.
7. See also Criminal Revision Case No. 123 of 1925, which is also a case from the Presidency Magistrate's Court.
8. Such a practice has frequently been condemned by the Calcutta High Court. See Baidya Nalh Singh v. Mus-pratt I.L.R. (1887) C 141, Bhim Lal Sah v. Emperor I.L.R. (1912) C 444, Balai Lal Mukerjee v. Pasupalhi Chatterjee (1916) 21 C W N 127, Chandi Charan Mitra v. Monundra Chandra Roy Chowdhnry (1922) 27 C W N 196 and Bechu Mia v. Anwar Nabi (1924) 30 C W N 312. I note that the decision in Baidya Nath Singh v. Muspratt I.L.R. (1887) C 141 has been dissented from by a single judge in In the matter of the petition of Dukhi Kewal (7). This latter case and In re Tukaram Udaram (8) are the only cases that the respondent has been able to put before me in his favour. In re Tukaram Udaram (8) the point was whether the issue of process to the accused for the purpose of enquiry under Section 202 meant that the trial had begun and the propriety of the issue of: that process was not discussed.
9. The ruling of this Court in Sheik Meeran Sahib v. Ratnavelu Mudali I I. R (1912) M 181 so far back as 1912, referring to the procedure in the Presidency Magistrate's Court does not seem to have had any effect in putting a stop to this practice. It is time therefore that this undesirable practice should cease and it will not cease until the Magistrates are in each case compelled to do over again what they have done improperly.
10. I am of opinion that the complainant has not had a fair hearing of his case, that he is entitled under Section 202 to have that case reconsidered and I remand the case for that purpose. I reverse the Magistrate's order and direct him to rehear the complaint. It is hardly necessary to add that the statement of the accused and his witnesses which have been now taken cannot be treated as evidence at the re-hearing.