N.C. Talukdar, J.
1. This Rule is against an order dated the 16th May, 1968, passed by Sri A.R. Bhattacharya, Magistrate, 1st Class, Diamond Harbour, 24-Parga-nas discharging the accused in case No. G. R. 359 of 1967 under Section 10 of the West Bengal Gambling and Prize Competitions Act (Act XXXII of 1957), 1957.
2. The facts leading on to the preterit Rule can be put in a short compass. A first information was lodged on 15-3-67 by the de facto-complainant, Bonbehari Mondal, at the Sagore Police Station, Diamond Harbour against seven accused persons including the present opposite par-tips alleging that on 14-3-67 at about 9 p. m. the accused were found gambling without license at the mela ground at Companychar with dice and money. Certain alamats viz., one printed dice board, one leather cover, three ten-rupee notes, fourteen one-rupee notes and Rs. 4.40 p. in small changes were also deposited at the thana. On 17-3-67 the accused opposite party No. 1, Bhuban Chandra Barui after being released on bail filed a petition of complaint against the present petitioners and some others under Sections 342 and 232, I. P. C. and the said case, being case No. 444 of 1967, is pending in the Court of Sri H. P. Das, Magistrate, 1st Class, Diamond Harbour. After investigation, a charge-sheet under Section 10 of the Gambling and the Prize Competitions Act, 1957 was ultimately submitted by the officer-in-charge of the Sagore Police Station against seven accused persons and on 15-5-67 when the accused No. 1, Bhuban Chandra Barui, who was on bail, and was present in Court, warrants of arrest were issued against the remaining six accused persons. The case was thereafter transferred to the file of Sri A.R. Bhattacharya, Magistrate, 1st Class, Diamond Harbour for trial on 6-11-67. After several adjournments, 16-2-68 was fixed for evidence when all the accused persons were present excepting Ramudar Singh who was allowed to appear by agent. The trying Magistrate perused the F. I. R. and held that the prosecution was highly irregular as the police did not seize any money or article from the gambling spot and ultimately by his order of the same date he discharged all the accused as there was no case against them and further directed that the articles seized be destroyed and the money be forfeited to the State as unclaimed amount. This order of discharge has been impugned by the de facto-complainant and forms the subject-matter of the present Rule.
3. Mr. Binode Behari Halder, Advocate appearing on behalf of the de facto-complainant petitioner has made a twofold submission. He contended in the first place that the order of discharge is unwarranted and untenable because of the absence of any consideration of the case on merits and because of the denial of any opportunity to the prosecution to prove its case by relevant evidence which was available. Mr. Halder next urged that the order of discharge also does not conform to the provisions of Section 251A (2) of the Code of Criminal Procedure and is based upon a non-consideration of all the documents as also of the arguments, which could not be advanced by any of the parties. Mr. Chittaranjan Das, Advocate, appearing on behalf of four of the accused opposite parties has taken a preliminary objection as to the maintainability of the present Rule because the complainant-petitioner had not moved the Sessions Judge at Alipore in the first instance under Section 436 of the Code of Criminal Procedure. Mr. Das has contended in this context that where there is a concurrent jurisdiction where-under the party aggrieved may move either the Sessions Judge or the High Court, the rule of practice as laid down in the various decisions of the different High Courts as also of this High Court is that such an application should be moved in the first instance before the Sessions Judge, as otherwise it would not be maintainable in the High Court. The second contention of Mr. Das is that even on merits the order of discharge which has been impugned is quite a proper order under Section 251A (2) of the Code of Criminal Procedure in the facts and circumstances when the Court below found that the procedure adopted is highly irregular and that there is no case against the accused. Mr. Das has further submitted in this connection that this Court sitting in revision may be pleased not to interfere with an order of discharge, involving questions of facts.
4. I will now proceed to determine the points at issue in the light of the submissions made by the learned Advocates appearing on behalf of both the parties as also on the basis of the materials on record. The preliminary point taken by Mr. Das is not an unqualified proposition of law and resolves itself into two parts. The first one is that when there is concurrent jurisdiction under Section 436 of the Code of Criminal Procedure whereunder the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make further enquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204 or into the case of any person accused of an offence who has been discharged, whether it is the rule of practice, as laid down by the decision of the different High Courts including this High Court, that the High Court should refuse to entertain such revisional applications, unless and until the Sessions Judge concerned has been moved in the first instance. The second facet of consideration is that, if and when such an application has already been entertained and a Rule issued by the High Court, whether the same should be discharged on the ground of this Rule of practice and the applicant concerned be sent back to seek his redress before the Sessions Judge, even though a considerable period of time might have elapsed in between the date of the order impugned and the date when the Rule is so disposed of.
5. So far as the first aspect of the question is concerned viz., as to whether in cases of concurrent jurisdiction under Section 436, Criminal Procedure Code either final or not, such an application in revision should be entertained in the first instance by the High Court, save on some special ground, it can at once be stated that there is neither any bar in limine nor any rule of law prohibiting the same. Starting with the decisions by this High Court, one of the earliest decisions on the point is the case of Queen Empress v. Reolah, (1887) ILR 14 Cal 887 wherein Mr. Justice Prinsep and Mr. Justice Pigot, after consultation with the Chief Justice and the other Judges of the Court on the point, held at page 888 that 'the practice of the Court should be understood to be, that in cases where the District Court or Magistrate has concurrent revisional jurisdiction with the High Court, an application for revision will not be entertained save on some special grounds shown, unless a previous application shall have been made to the lower Court'. The next Calcutta case on the point is that of Emperor v. Abdus Sobhan, (1909) ILR 36 Cal 643= (10 Cri LJ 190) wherein Mr. Justice Caspersz and Mr. Justice Ryves observed at page 644 that
'the practice which ought to be followed in such cases is that indicated in the case of (1887) ILR 14 Cal 887 ...............that was a decision arrived at after consultation with the Chief Justice and the other Judges of this Court on the point. We are not prepared to differ from it. We think it is a ruling which should be adhered to'.
The application concerned was directed to be returned to the party. In the case of Rashbehari Saha v. Phanibhusan Halder, ILR 48 Cal 534=(AIR 1921 Cal 76), Mr. Justice Chatterjee and Mr. Justice Cuming held that 'It is not the practice of this Court to entertain applications of this nature, unless the party has first moved the Sessions Judge to make reference to this Court'. A reference may be made to another Calcutta case viz., that of Abdul Matlab v. Nandalal Khatal, ILR 50 Cal 423= (AIR 1923 Cal 674). Mr. Justice C.C. Ghosh and Mr. Justice Chotzner held therein at page 425 that 'We are in agreement with Mr. Dutt in the contention which he has put forward viz., that ordinarily an applicant like the present petitioner ought to go to the Sessions Judge and move him for a reference to this Court'. In a more recent case viz., the case of Bholanath Dhar v. Gourgopal, : AIR1953Cal777 , Mr. Justice Mitter and Mr. Justice Sen considered such a preliminary objection raised, to the maintainability of the revisional application, involving the principle as to whether 'When superior Court and an inferior Court have concurrent jurisdiction in a matter, the inferior Court should be moved first'. Mr. Justice Sen, who delivered the judgment of the Court, observed inter alia at page 778 that
'This is, however, not a case where the High Court and the Sessions Judge have concurrent jurisdiction; it is only the High Court that can set aside or modify an order passed by a Magistrate in a proceeding under Section 145, Cr. P. C. the Sessions Judge could only refer the case to the High Court under Section 438, Cr. P. C. for order if he were satisfied that there was any illegality in the order of the Magistrate. It is no doubt true that there are rulings to the effect that even in such cases the Sessions Judge ought to be moved first'.
There are also some unreported decisions of this High Court on the point. In Criminal Revision Case No. 921 of 1950, Santosh Roy v. State on the complaint of Kartik Chandra Mallick decided on 17-4-1951 (Cai), Mr. Justice K.C. Das Gupta and Mr. Justice P.N. Mukherjee upheld a preliminary objection that the Rule which' was the subject-matter of that case should be discharged because the petitioner did not move the Sessions Judge under Section 435, Cr. P. C. for a reference under Section 438, Cr. P. C, to this Court and relying on the case of ILR 48 Cal 534 at p. 535= (AIR 1921 Cal 76). Their Lordships held that 'It is not the practice of this Court to entertain applications of this nature unless the party has first moved the Sessions Judge to make a reference to this Court'. Their Lordships further found no exceptions or special ground to deviate from the practice and ultimately discharged the Rule. In Criminal Revision Case No. 390 of 1951, Sudhir Krishna Ghosh v. Ekkart Sana, decided on 2-8-1951 (Cal) Mr. Justice P.B. Mukherji sitting with Mr. Justice B.K. Guha had to consider such a preliminary point because the petitioner therein did not move the Sessions Judge under Section 435, Cri. P. C. in conformance with the prevailing practice. Their Lordships held that 'the practice is normally to insist on the petitioner moving the Sessions Judge before coming to this Court but at the same tune there have been cases where there was departure from the usual and normal practice. While following the practice, it must be observed that the statute does not require it'. Their Lordships on the basis of the special grounds found therein, allowed the revisional application. Recently in an unreported case namely in Criminal Revision Case No. 1004 of 1966, Prokash Chandra Das v. Jamunabala Dasi, decided on 24-1-1967 (Cal), Mr. Justice T. P. Mukherjee held after considering the various decisions on the point that this is
'a rule of practice which has assumed a sanctity imparted to it by the imprimatur of judicial decisions. ...,.....;.. The practice is still persisting and I do not see why I should deviate from the practice unless a special case is made out to induce me to do so'.
The Rule was ultimately discharged and it was directed that 'the petition be returned to the petitioner's Advocate for being filed in the proper Court, if it be still entertainable by that Court subject to all just exceptions'.
6. A reference now may be made to some of the decisions on this point by the other High Courts. In the case of Mohammad Hashim v. Notified Area, Moghal Sarai, reported in : AIR1933All283 Mr. Justice Bajpai held that
'A preliminary objection has been taken that this Court is precluded from entertaining the present application by reason of the uniform practice of this High Court refusing to entertain an application in revision where the applicant has not gone in revision either to the Sessions Judge or to the District Magistrate. There can be no doubt that in this Court there has grown a practice that an application in revision to the Lower Court is an essential step in the procedure, and failure on the part of the applicant in this respect operates as a bar to the application being entertained by this Court'.
In another Allahabad case namely in the case of Sailabala Devi v. Emperor, reported in : AIR1933All678 , Chief Justice Sulaiman, who delivered the judgment of the Full Bench held at page 684 that
'In observance of the well-established practice of this court, neither an application in revision by an accused nor an application by a third party for the purpose of informing the High Court, should be entertained, unless there are special reasons why the applicant should not have gone to the District Magistrate of the Sessions Judge in the first instance'.
Their Lordships of the Full Bench however proceeded to make some important observations regarding a case where such an application was admitted and the records were called for and the same will be considered in the proper context. In a Bombay case viz., in the case of Savlaram Sadoba Navle v. Dnyaneshwar Vishnu Chinke, AIR 1942 Bom 148, Chief Justice Beaumont delivering the judgment of the Court observed at page 149 that
'Under the rules of this Court we do not normally entertain applications in revision, unless an application has previously been made to the Sessions Court or District Magistrate, as the case may be'.
Mr. Justice Govinda Menon of the Madras High Court held in the case of Kapa Kasi Viswanadham v. Bondili Madan Singh, AIR 1948 Mad 422 at p. 424 that
'Ordinarily, this Court will not entertain a revision against a discharge by a Magistrate where the aggrieved party has not moved the Sessions Court, or the District Magistrate before coming up to this Court'.
There are some cases of the Assam High Court also on this point and in the case of Gobardhan Das Khaklia v. Chaturbhuj Khaklia, AIR 1950 Assam 165 Mr. Justice Ramlabhaya (as his Lordship then was) observed at page 166 that
'I hold that the High Court should not ordinarily entertain petitions of revision like the present one under Chapter XII, Criminal P. C., unless the Lower Court has been moved in the first instance'.
His Lordship further proceeded to make some material observations which will be considered in their proper context. There Is a Full Bench case of the Andhra Pradesh High Court viz., the case of Alapati Sriramamurty v. State of Andhra Fra-desh, : AIR1959AP377 . Chief Justice P. Chandra Reddy sitting with Mr. Justice S.N. Raju and Mr. Justice Srinivasachari observed at p. 380 that
'This very question was considered by a Division Bench of this Court in Veera-ramayya v. Venkata Seshavatharam, 1955 Andh WR 888= (AIR 1956 AP 97). After an elaborate discussion and after noticing the practice in various High Courts it reached the conclusion that ordinarily the High Court should not entertain revision direct from orders of Subordinate Magistrates unless the party concerned had first approached the Sessions Court or the District Magistrate as the case may be. The learned Judges expressed the opinion that the practice in vogue in all the High Courts except Madras 'would carry out the intention of the legislature and would better serve the interests of the public from the administrative and judicial points of view'. [We think that no further elaboration is needed and that this ruling embodies the correct principle and should be adhered to ............ We feel that this practice which is firmly established in almost all the High Courts tends to administrative convenience. It is also a sound principle from the judicial point of view.'
Their Lordships of the Full Bench again qualified the proposition as laid down above by further observations as regards special circumstances and the same will be considered in their proper context.
7. The second aspect of consideration of the broad proposition as put forward by Mr. Das is whether such an application having already been entertained and a Rule having been issued by the High Court, it should nonetheless be discharged on the ground of this practice and the applicant concerned be sent back to seek his redress in the Court below. A reference in this context may also be made to several decisions of the different High Courts on the point as also to the further observations bearing on this proposition as made by their Lordships in the cases already referred to above. In the case of ILR 50 Cal 423= (AIR 1923 Cal 674) Mr. Justice C. C. Ghosh and Mr. Justice Chotzner while holding that the party aggrieved should in the first instance move the Sessions Judge in similar cases for a report under Section 432, Cr. P. C. nonetheless did not discharge the Rule which was already issued and held at p. 425 (of ILR)=(at p. 674 of AIR) that 'But so far as this Rule is concerned we cannot discharge the Rule on that ground. The application having been heard and the Rule having been granted, we are bound to dispose of the Rule on the merits'.
The same view has found favour in several decisions both of the Calcutta High Court and of other High Courts including two Full Bench decisions. In Criminal Revision Case No. 390 of 1951, D/- 2-8-1951 (Cal), Mr. Justice P.B. Mukharji who delivered the judgment of the Division Bench observed that
'While following the practice it must be observed that the statute does not require it. The statute does not put any bar to any petitioner to come to this Court. It is quite clear on a reading of Section 435 of the Code of Criminal Procedure that the High Court and the Sessions Judges' Courts and other courts mentioned therein have concurrent powers in this respect ...... The practice though long and fairly uniform cannot, by the period for which it has prevailed, acquire the status of a statutory limitation on Section 435 of the Code of Criminal Procedure. The High Court not only has the power which it has in every case under Section 435 of the Code but also on proper grounds certainly should interfere even as a matter of practice when the particular facts specially justify such interference. I wish to emphasise that what is regarded as a normal practice should not be converted into a rigid invariable practice to cripple the statute ............ To insist now that the ordinary gamut and the hierarchy of courts should be exhausted is to shut one's eyes to obvious justice in the case and is to raise a technicality which has not even the merit of statutory sanction behind it to commit the parties to unnecessary harassment, delay, and useless expenses without advancing the course of justice'.
A further reference in this context may be made to a recent decision by Mr. Justice J. P. Mitter and Mr. Justice Sen of this High Court in the case of : AIR1953Cal777 as already referred to above. Mr. Justice Sen, who delivered the judgment of the court, significantly observed therein at p. 778 that
'But the rulings are not uniform and it has been held in some cases that where the High Court has issued a Rule, the matter should be disposed of on merits even if the Sessions Judge has not been moved. It is not necessary to discuss the case law on this question, for the statute is clear .........Thus the High Court may deal with cases reported under Section 438 by the Sessions Judge or the District Magistrate as well as with cases of which the records have been directly called for by itself. The High Court's power to call for records is not restricted to the cases in which the Sessions Judge or the District Magistrate has been moved, even though under Section 435 Cr. P. C., the High Court, the Sessions Judge and the District Magistrate have a concurrent jurisdiction to call for the records of any case. The preliminary objection therefore fails'.
In the case of AIR 1933 All 678 (FB). Chief Justice Sulaiman who delivered the judgment of the court however observed at p. 684 that:
'But after the application has been entertained and the records called for, the technical objection must cease to have force. The ultimate dismissal of the application on this preliminary ground after the case has been pending in this court for a long time may be highly prejudicial to the applicant ......... At the same time as a rule of practice cannot have the force of law and cannot of course override any statutory enactment, an order passed by a High Court Judge, contrary to this practice cannot possibly be illegal, particularly if the judge considers that the case before him is of a very exceptional nature which justifies a departure from the Rule.' His Lordship further proceeded to observe at page 685 that 'once the application has been admitted and the records called for, such an objection should not be entertained.' In the case of AIR 1950 Assam 165, Mr. Justice Ramlabhaya (as his Lordship then was) observed at page 166 that the High Court 'should not hesitate to do so if extraordinary and special circumstances are shown to exist which justify departure from the normal course'.
Lastly, I would refer in this context to the Full Bench case AIR 1959 Andh Pra 379 (FB). Chief Justice P. Chandra Reddy, who delivered the judgment of the Full Bench, further observed at p. 380 that 'However this is not an inflexible rule of invariable application. It is always open to a party to move directly this court where there are exceptional circumstances in any case. The High Court is invested in express terms with jurisdiction to receive revision petitions even in the first instance'.
8. I respectfully agree with the observations made in the cases referred to before and I hold with regard to the first part of the preliminary objection that in cases where the High Court and the Sessions Judge have concurrent jurisdiction under Section 436 of the Code of Criminal Procedure, the High Court should refuse to entertain a revisional application in the first instance, save and except on special grounds, because the Rule of practice relating thereto has assumed a' sanctity imparted to it by the imprimatur of judicial decisions and as such the same should not normally be departed from. So far as the second part of the preliminary objection is concerned, I hold however, in agreement with the three Division Bench decisions of this High Court and the Division Bench decision of the Assam. High Court as also the two Full Bench decisions of the Allahabad and the Andhra Pradesh High Courts as referred to in the previous paragraph, that once such an application in revision has been entertained and the records have been called for, such a technical objection would not hold good and the High Court is 'bound to dispose of the Rule on merits'. It may not indeed be fair to commit the parties in such a case to unnecessary harassment, delay and useless expenses on the ground of a technicality as involved in a Rule of1 practice. I accordingly overrule the preliminary objection that has been raised by Mr. Chittaranjan Das as to the maintainability of the present Rule, in the special circumstances of this case and in view of the further fact that a Rule has already been issued and the records have been called for. Mr. Das has referred in this context to the unreported decision, already mentioned above, of a Single Bench of this court in Criminal Revision Case No. 1004 of 1966 D/- 24-1-1967 (Cal) and has pinpointed the ultimate order that was passed therein viz., that the Rule was discharged and the relative petition was directed to be returned to the petitioner's Advocate 'for being filed in the proper court, if it be still entertain-able by that court, subject to all just exceptions'. The said order of the Single Bench however appears to have overlooked the material observations made by the several Division Benches of this High Court as also the two Full Benches of the other High Courts, as referred to above. I respectfully agree with and abide by the said observations of the Division Benches and the Full Benches and with great respect to Mr. Justice Mukherjee, the observations as made by Mr. Justice J. P. Mitter and Mr. Justice Sen in the case of : AIR1953Cal777 , do not appear to me to be at all obiter but quite pertinent observations made for advancing the course of justice and for keeping unfettered the untrammelled jurisdiction of the High Court.
9. Law is good but justice is better and in the instant case, it is not even the question of a Rule of law but of a Rule of practice. As Lord Atkins observed in the case of Rash Behari Lal v. King Emperor that 'Finality is a good thing, but justice is better'. Practice is but the handmaiden of law and cannot be allowed to override the latter and be her jealous mistress. The High Court is indeed the 'palladium of justice and its stream must remain unfettered. In the case of Hukumchand Boid v. Kamalanand Singh, decided by Sir John Woodroffe, and Sir Asutosh Mookerji reported in (1906) ILR 33 Cal 927, Sir John Woodroffe, who delivered the judgment of the Court observed at page 930 that 'For my part I am always slow to believe that the Court's powers are unequal to its desire to order that which it believes to be just'. It is again Sir John Woodroffe who observed in the case of Lekhraj Ram v. Debi Pershad, (1908) 12 Cal WN 678 at p. 680=(7 Cri LJ 499 at p. 502) that 'I am of opinion that there is no form of judicial injustice which this Court, if need be, cannot reach', I respectfully agree with the said observations and I hold that if there be any attempt to put any clog in the wheels of justice, 'I must with all respect, express my dissent'.
10. Coming now to the merits, I hold that in the facts and circumstances of the case there is considerable force behind the submissions of Mr. Binode Behari Holder. No arguments have been heard by the trying Magistrate and there is even no consideration of the documents on merits. One looks in vain for any cogent reason being given in the impugned order, which appears to be a cavalier one, and in non-conformance of the pro-visions of Section 251A (2) of the Code of Criminal Procedure. It is therefore just and fair that the impugned order should be set aside and the case be tried on merits in accordance with law. I make however no observations as to the merits of the case.
11. In the result, the Rule is made absolute; the impugned order of discharge dated 16-2-1968 passed by Sri A.R. Bhattacharya, Magistrate, 1st Class, Diamond Harbour in case No. G. R. 359 of 1967 is set aside; and the case is remanded to the Court below for being tried expeditiously and in accordance with law, against the present six accused opposite-parties only, from the stage reached before the 16th February, 1968, by some other Magistrate to be selected by the District Magistrate, 24-Parganas.
12. The records are to go down immediately.