1. This rule is directed against an order passed by the Deputy Magistrate of Kishoreganj by which he has committed the petitioner Nagendra Nath Sircar to the Court of Sessions for trial on charges under Sections 19 (f) and 20, Arms Act. What happened in the case was this : the petitioner was put on his trial under these sections before the learned Magistrate and the learned Magistrate convicted him under both the sections and sentenced him to two years' rigorous imprisonment under Section 20 but passed no sentence under Section 19 (f). The matter was then taken in appeal to the Sessions Judge and the learned Judge allowed the appeal and set aside the conviction and sentence under Section 20 on the ground that the learned Magistrate had no jurisdiction to try the accused under that section. The learned Judge however set the petitioner at liberty observing in the concluding portion of his judgment that if the Magistrate wished to proceed further in the matter he might commit the petitioner to the Court of Session. Thereupon the learned Magistrate without holding any further inquiry under Ch. 18, Criminal P. C., committed the petitioner to the Court of Session both under Section 19 (f) and Section 20. It is against this order of commitment that the present rule is directed.
2. On behalf of the petitioner it was in the first place contended that Section 403, Criminal P. C., would operate as a bar to what the learned Deputy Magistrate has done in the matter. As regards the prosecution under Section 20, Arms Act, I do not think that Section 403 could have any application whatsoever. If the learned Sessions Judge acquitted the petitioner of the charge under Section 20 he did so not on a consideration of the merits of the case but on the ground that the learned Magistrate had no jurisdiction to try the accused on that charge inasmuch as the learned Magistrate had not been specially empowered to do so. Then as regards the prosecution under Section 19 (f) the question whether Section 403 would operate as a bar would depend on what the learned Judge meant when he passed his order in the appeal on 28th April 1931. The learned Judge could not have meant to acquit the petitioner of the charge under Section 19 (f) because in that case his observation that the learned Magistrate if he wished to proceed further in the matter might commit the petitioner to the Court of Sessions would be meaningless remembering that there could be no conviction under Section 20 if there was no case whatsoever under Section 19 (f). Having regard to the observation the learned Sessions'1 Judge made in the concluding portion of his judgment which was of a general character and regard having had also to the fact that the learned Judge set the petitioner at liberty, the only way in which the order of the Sessions Judge can be interpreted so far as the charge under Section 19 (f) is concerned is that his order was an order of discharge, and if his order was an order of discharge Section 403 could not operate as a bar to the prosecution of the petitioner under! Section 19 (f).
3. But there is another objection to the order made by the learned Magistrate; an objection which is more formidable and which, in my opinion, cannot be got over. On behalf of the petitioner it was urged that the order of commitment was wrong-in law inasmuch as the learned Magistrate had not before making that order held an inquiry under Ch. 18 of the Code. The learned Magistrate in his explanation has stated that in the trial which resulted in the conviction of the petitioner the petitioner had a full opportunity to cross-examine the witnesses. That may be so. But the petitioner will not be able to make use of the statements made by the prosecution witnesses at that trial for all purposes as he might kinder Section 288, Criminal P. C., if there;had been an inquiry held according to the provisions of Oh. 18. That being so, it can very reasonably be urged on behalf of the petitioner that the failure of the Magistrate to hold an inquiry under Oh. 18 would be to the petitioner's prejudice. I would therefore set aside the order of commitment made by the learned Magistrate and direct him to proceed according to law as provided by Ch. 18 before making any order of commitment in the case.
4. The rule is made absolute in the above terms.
5. I agree.