1. We think the learned District Magistrate had no jurisdiction to pass the order which he did on the 15th November, 1923. If he was of opinion that such an order was necessary in the interest of justice, his proper course was to make a reference to this Court under the provisions of Section 438, Cr.P.C. We accordingly accept this part of the Reference made by the learned Sessions Judge and set aside the said order of the learned District Magistrate.
2. With reference to the other recommendation made by the learned Sessions Judge, viz., that the order of the Sub-Divisional Magistrate, dated the 5th November, 1923 be restored, we are not prepared to accept his recommendation. He has referred to two cases in his letter of Reference in support of the recommendation that he has made, viz., (i) Bachu Molla v. Sia Ram Singh (1886) 14 Cal. 358 and (ii) Judhisthir Gope v. Sheikh Samir A.I.R. 1923 Cal. 644. The decision in the latter case rested on its special features, viz., that the two cases were being tried by two different Courts, and in one of the eases the prosecution case had been closed and charge framed, whereas in the other practically very little had been done, and under those circumstances it was held that it was desirable to hold the trials in one Court and to finish the trial which had nearly come to an end. With regard to the former case the authority of the observations which, by the way, were not the foundations of the decision therein, was very much weakened in consequence of a later decision of this Court in Queen-Empress v. Chandra Bhuiya (1893) 20 Cal. 537.
3. We propose to consider the matter from the point of view of first principles, and in doing so we shall for the sake of brevity call the case against Nobadali and others as the Police case, and the case against Sheikh Bahatar and others as the complaint case, since they have been started, respectively, upon a Police report and a complaint. We start with the position that the Police case is to go on immediately; in fact no application has been made by any party to have it postponed and none has suggested that it should not be taken up at once. The question is whether the complaint case should not also be started at once. Now, the policy of the law is that it should go on, unless it be adjourned so far as the trial Court is concerned, under the provisions of Section 344, Cr.P.C. Under the provisions of that section, 'if from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any enquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor postpone or adjourn the same.' In this case no reasons have been recorded by the learned Sub-Divisional Magistrate. His order simply runs thus : 'Seen. The Police case will be taken up first.' It is for us, then, to enquire : Is there any reasonable cause which may justify the order?
4. The accused in the complaint case who may be interested in the Police case cannot very well say that they will in any way be prejudiced. They cannot say that they will not permit the complainant in the complaint case in which processes have-issued against them on the footing that a. prima facie case had been made out to proceed with this case merely because the. Police case is pending. There is nothing to prevent them from proving their own version in the Police case. They cannot in fairness be permitted to say that as they are accused in the complaint case, they will in any way be hampered to depose truthfully as they are expected to do in the Police case in which they expect to secure, a conviction of their opponents. On the-other hand, there is no reason whatever why the complainant in the complaint ease; should not be allowed to proceed with his case in which he and his co-accused can give their deposition on oath and are in a much better position to substantiate the truth of their version, than as accused persons in the Police case. Of course, if they had asked for an adjournment of the complaint case on the ground that being accused persons in the Police case they will be handicapped in going into the witness-box and give their deposition on oath, other considerations would have arisen; but it is they who want a simultaneous trial, presumably because they will be benefited and not prejudiced by the adoption of that course. There is no, foundation for the view that a Police case is to have precedence because it is a Police case : and so far as order of institution is concerned it appears to us that upon the facts appearing on the records to say that the Police case was instituted earlier in point of time is a mere fiction.
5. We accordingly pass the following order which seems to us to meet the ends of justice in this case. The two cases should be tried simultaneously and contemporaneously, but should be dealt with wholly separately from each other, each on its own merits and upon the facts and circumstances appearing therein; judgments in the two cases being pronounced, if possible, after both the trials are over.
6. The Reference is thus accepted in part.