Lancelot Sanderson, C.J.
1. This is a Rule which was granted to show cause why the order of the Magistrate by which he dismissed the complaint should not be set aside.
2. The grounds upon which the Rule has been supported are two: first, that the procedure which is laid down by the Code of Criminal Procedure has not been followed by the learned Magistrate and, secondly, that if the procedure had been followed by the Magistrate, and if he had confined himself to the materials which he would have had before him if such procedure had been followed, then upon such materials he ought to have issued process.
3. With regard to the first point, we are both of opinion that the procedure laid down by the Criminal Procedure Code has not been followed in two material respects, and we wish to say that we think it is most desirable that Magistrates should follow the procedure which is quite clearly laid down in Chapter XVI dealing with complaints to Magistrates. It is not necessary for me to recapitulate here what is laid down, as plainly as it could possibly be, in Sections 200, 201, 202 and 203. The first irregularity was that the Magistrate directed an investigation to be made by a Police Officer, without having recorded his reasons for his not being satisfied as to the truth of the complaint. Section 202 says that if the Magistrate' is not satisfied as to the truth of a complaint of an offence of which he is authorised to take cognizance, he may, when the complainant has been examined, record his reasons, and may then postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or direct a previous local investigation to be made by any officer subordinate to such Magistrate, or by a Police Officer.... 'It is not necessary for me to dwell at any length upon this matter, because so long ago as 1886, this matter was dealt with by this Court in the case of Baidyanath Singh v. Muspratt 14 c. 141 where the learned Judges said: 'it is clear to us that under Section 202 if he distrusts the statement of the complainant he must record Ms reasons. In any case he is bound to record his reasons for distrusting the complaint. That appears to us to be quite reasonable.' I not only follow that ruling, but I think it is a perfectly right and reasonable ruling, and 1 do not see any reason why Magistrates should not follow that which is laid down by the Statute and by the decisions of this Court.
4. The second irregularity which is relied upon was that the learned Magistrate did not confine himself to the evidence of the complainant and the report which was made by the Police Officer, but that he allowed the accused to be repesented by a learned Pleader and to address him to argue the points which arose in the case and to put in a detailed statement of the points and the facts upon which the defence relied.
5. To my mind, this procedure is quite inconsistent with the scheme of this Legislation: I do not understood how the accused person ever goes before the Magistrate until the Magistrate has made up his mind to issue process. The Magistrate is directed by the Statute to inquire into the case in certain specified ways, and then having investigated the matter in one or other of the specified ways, he is to decide whether process ought to issue, and then if he thinks that process ought to issue he should direct process to issue. Then the accused person appears, and if he has got a defence, his defence is in vestigated as well as the case for the prosecution. That being so, it appears to me that the learned Magistrate has not acted in this case in accordance with the procedure which is laid down by the Criminal Procedure Code.
6. Then arises the second point: The learned Counsel appearing to show cause against this Rule has argued that possibly even if we think that the Magistrate has no followed out the procedure laid down in the Statute, we ought not to make this Rule absolute because it is a matter of discretion whether we should make the Rule absolute--as to which he is perfectly right, it is entirely in our discretion whether we should make the Rule absolute and because it is obvious as hi argues, that even if the learned Magistrate had confined himself to the materials which he might legitimately consider, the conclusion at which he had arrived, namely, the dismissal of the complaint was a right one. We have given full consideration to that argument, but we cannot accede to it, and we think that this matter must go back to Magistrate to investigate in the ordinary way. Inasmuch as it is going back to the Magistrate, it is advisable for us to say as little as possible upon this second point because if we were to embark upon the matter we might say something which might affect the Magistrate's mind and might prejudice either the one side or the other. I only say this, that broadly speaking, the case which was made by the complainant--I am not saying whether it is true or whether its untrue, and I desire again to guard myself by saying that whatever I say ought not to prejudice either side in any way,--the complaint was that as soon as the owner of this business died, the accused person who was the manager took into his possession all that represented that business. He changed the place of business, and as 1 have said before took into his possession, I advisedly refrain from using the word 'convert,' all that respesented that business and then apparently entered into negotiations with the sons of the deceased person, proposing that they should enter into partnership of the new business which he intended to start, giving them four-annas share in the business. The Police Officer investigated this matter, set out the facts in a full and careful report, and finished his report by saying that this was all a question of the intention of the accused, or words to that effect, and I say that this is' in all probability one of the main questions which the Magistrate will have to investigate in this case. We have not the evidence of the complainant before us and upon the materials that we have we are unable to say that it is so absolutely clear that there was no such intention, that in the exercise of our discretion we ought to refuse to make the Rule absolute.
7. For these reasons we think that the Rule should be made absolute and the matter should be investigated further. But inasmuch as Mr. Swinhoe has alrealy passed an opinion about it, he will not hear this case again. Therefore we will ask him to refer the case to either the second or the third Presidency Magistrate. The Magistrate should investigate the complaint in the ordinary way and come to his own conclusion upon it.
8. I agree.