Richardson and Shams-ul-Huda, JJ.
1. Jahiruddi preferred a complaint against the petitioners charging them with theft. The Magistrate receiving complaints, who was the Subdivisional Officer, suspecting that he had to do with a civil dispute, referred the complaint to a Deputy Magistrate for enquiry and report. On the transfer of the Deputy Magistrate to another district, the Subdivisional Officer made a second order referring the complaint to the Sub-Deputy Magistrate for enquiry and report. Unfortunately the Sub-Deputy Magistrate fell ill and, on the 9th November, a third order was made referring the complaint to Babu P.L. Neogy, an Honorary Magistrate, exercising second class powers, again for enquiry and report. Babu P.L. Neogy, after examining the complainant and some of his witnesses on oath, submitted his report with the depositions, taken by him to the Subdivisional Officer on the 16th November 1918 On the 19th November the District Magistrate, for reasons stated by him, withdrew the case to his own file. He read Babu P.L. Neogy's report, and being of opinion that a prima facie case had been made out he issued summons against the petitioners under Section 379 of the Penal Code.
2. The case arises out of a dispute between landlord and tenant in the Mathurapur estate. The product known as lac is collected from certain trees standing on lands leased to tenants of the estate. The landlords or their farmer claims the right to enter upon the tenants lands to collect the lac. The tenants, of whom two are petitioners before us, assert a right to the trees. The dispute had led to the charge of theft brought against the petitioners by Jahiruddi, who is the farmer's son-in-law, and to a counter charge of theft brought by. one of the petitioners against Jahiruddi and others.
3. It is contended on behalf of the petitioners (i) that the Subdivisional Officer had no jurisdiction to refer the complaint against them to another Magistrate for enquiry and report, and that the orders in the form in which they were made, amounted in the result to the transfer of the case to Babu P.L. Neogy for disposal; and (ii) that the District Magistrate's order withdrawing the case to his own file was improper.
4. In support of the first of these contentions, reference was made to the cases of Hari Charan Gorait v. Girish Chandra Sadhukhan (1910) I.L.R. 38 Calc. 68 and Ganyadhar Pradhan v. King-Emperor (1915) I.L.R. 43 Calc. 173 but while, in view of the order we propose to make, it is not necessary for us to express a final opinion, it may be permissible to record a doubt whether the judgments a party, or personally interested to or in any case by reason only that be is a Municipal Commissioner or otherwise concerned therein in a public capacity...' Of course, if the District Magistrate is not within the Explanation and is disqualified, he cannot try the petitioners. In that case, entirely irrespective of any question of bias, they would have a legal right to be tried by some other Magistrate. On the materials before us, however, though here again it is not necessary to express a final opinion, we are not satisfied that the disqualification is established.
5. Apart from disqualification, if it is argued that the reasons assigned by the District Magistrate for his order are inadequate, and so far as this objection is concerned it is not without considerable force. The principal reason which moved the District Magistrate to make the order was that he desired to inform his own mind as to the nature of the dispute between landlord and tenant in the Mathurapur estate. That is a praiseworthy desire, but he has or should have other ways of informing his mind in such matters without removing a case from the Court before which it is pending, apparently without any inconvenience to the parties or any dissatisfaction an their part, to his own Court.
6. We might be content with restoring the case to the file of the Subdivisional Officer, but having had the facts placed before us, we are of opinion that we ought to go further and quash the proceedings, in the view we take, regard being had to the nature of the dispute, there is little reason to suppose that the charge of theft, from whichever side it comes, will be substantiated. The dispute is eminently, one for the Civil Courts where only it can be finally determined. It will be to the interest of all parties that a decision should, be sought for there. The practice of taking to the Criminal in those cases, when carefully read, are any authority for the construction of Section 202 of the Criminal Procedure Code which is suggested on the petitioners' behalf. The practice, has long been to refer complaints to subordinate Magistrates for local enquiry and report, and the language of, the section seems capable of an interpretation consistent with the practice, an interpretation which is in accord with the natural meaning of the words. When the section says that the Magistrate, receiving a complaint may, in certain circumstances, 'direct a previous local investigation to be made by any officer subordinate, to such Magistrate,' those words, as they stand, would naturally include a local investigation by a subordinate Magistrate. The suggested construction depends on the definitions of 'inquiry' and 'investigation' in Section 4; but those definitions are not exhaustive and are expressed to be subject to the context. No doubt, under Section 192, the transferring Magistrate cannot intermeddle with the case transferred unless and until, having power to do so, he recalls it to his own file. The provisions, however, of Section 192 and Section 202 are separate and distinct, and the powers conferred by the one section do not curtail those conferred by the other.
7. As to the second contention, a share of the Mathurapur estate is under the management of the Court of Wards. It was accordingly, argued that the District Magistrate, being also the Collector and the local representative of the Court of Wards, was, under the provisions of Section 556 of the Criminal Procedure Code, disqualified by reason of interest from trying the case. It is not suggested, however, that the District Magistrate had anything to do with initiating the prosecution, and the Explanation attached to the section says that a Magistrate 'shall, not be deemed to be Courts, for the purpose of a preliminary skirmish, disputed claims involving questions of right and title, about which the parties may intelligibly and with perfect good faith take opposing views, is in our opinion much to be deprecated.
8. The result is that the proceedings are quashed.