1. This is a rule to show cause why the proceedings pending in the Court of Mr. H. K. Dey, Fourth Presidency Magistrate, in respect of a case under Section 380, I. P. C., should not be quashed or at any rate stayed till the disposal of a suit No. 1125 of 1933, pending between the parties on the original side of this Court. On 13th May last the complainant laid an information of theft of two boxes of jewelleries, On that the two petitioners were arrested and an investigation being held by the police the petitioners were discharged: the Deputy Commissioner of Police observing that the case was doubtful and probably false. On 2nd June last the complainant lodged a complaint on which the Additional Chief Presidency Magistrate made an order under Section 202, Criminal P. C., sending the complaint to Mr. H. K. Dey for judicial enquiry and report. Mr. Dey thereupon examined some witnesses and issued summonses against the petitioners under Section 380, I. P. C. On 27th May last the firm of Indar Chand Lachmipat, of which petitioner 1 alleges he is a partner, instituted a suit against the complainant and his wife as defendants, wherein a pledge by the latter in respect of the said jewelleries has been set up.
2. The Rule, in so far as it relates to the quashing of the proceedings, is based upon the contention that Mr. Dey had no authority to issue the summonses inasmuch as the case bad been sent to him merely for enquiry and report. The learned Magistrate in his explanation has observed that the mistake on his part in issuing summonses was due to an oversight. On behalf of the complainant however it has been contended before us that the Fourth Presidency Magistrate is not subordinate to the Additional Chief Presidency Magistrate, and that therefore the latter bad no jurisdiction to make an order sending the complaint to the former for enquiry and report in the terms of Section 202 of the Code. The argument further is that when the complaint came before Mr. Dey he could issue process on it, holding the enquiry as he has done. We are of opinion that the complainant's contention is not sound.
3. It is not disputed that all stipendiary as well as non-stipendiary Presidency Magistrates have been declared by the Local Government subordinate to the Chief Presidency Magistrates: vide notification No. 3540 J. D. published in the Calcutta Gazette, 1903, Pt. 1, dated 7th October 1903, p. 1321. By Section 18, Clause (4) of the Code an Additional Chief Presidency Magistrate has been vested with all the powers of the Chief Presidency Magistrate. A power to sand the case to a Subordinate Magistrate under Section 202 of the Code is one of those powers. A subordination by implication has been created by the said provision: for unless such subordination is assumed the exercise of the power would be impossible. We are of opinion therefore that the order which the Additional Chief Presidency Magistrate made was one which is authorised by law and which Mr. Dey had to comply with. In this view of the matter, the summonses issued on the accused should be quashed and we order accordingly. All that would be neees-sary for Mr. Dey is to send a report to the Additional Chief Presidency Magistrate and it will be for the latter to deal with the complaint in accordance with law.
4. As the question of stay has also been argued before us, we desire to state that upon the circumstances of the case we consider it one in which if process is issued, no trial should be held until the suit referred to in the Rule has been disposed of. The Rule is made absolute.