1. This is an application to set aside an order of the Deputy Magistrate of Nattore, dated 7th May 1889, by which he directs that the records of a case, brought by Khepu Nath Sikdar against Grish Chunder Mukerji, be submitted to the District Magistrate for the prosecution of Khepu Sikdar under Section 211 of the Indian Penal Code, and of Mohendra Mukerji and Panchcowrie Mukerji for abetting this offence. He then goes on to say; 'All these persons may be tried under any other section of the Penal Code that may be found applicable. A list of witnesses for the prosecution will be attached to the record.' That order being made, and the record being sent, whether to the Magistrate or where does not appear, an order was made by Mr. E.F. Ainslie, who describes himself as 'Deputy Magistrate in charge,' directing issue of warrants against these three persons for their arrest, and fixing a day for the hearing; and directing, furthermore, that the case should remain on his file.
2. This case has been argued at some length. The first question is as to what this order of the 7th May means; the second is whether we have jurisdiction under the revision powers conferred upon us to set aside this order; and the third question is whether, under the circumstances of this case, we ought to exercise such powers in favour of the persons who have applied to us.
3. One view of this order of the 7th May is that it amounts to a sanction to prosecute. Another view of this order is that it is an order made by the Deputy Magistrate under the provisions of Section 476 of the Criminal Procedure Code, sending the case for inquiry or trial to the Magistrate of the district. There is a third view of this order: it is one that is sought to be supported by an order of the Magistrate of the district, dated 23rd April, on an application made to transfer the case from Nattore. In that order, after some observations having no reference to the matter of the application made before him, the Magistrate said this: 'At the same time, I feel sure the Sub-divisional Magistrate will recognize the extreme gravity of the case, and do his best to sift the matter to the bottom, and get to the truth. If the case is false, it is one which should certainly be followed by the prosecution of Khepu for a false charge, and of the Mohunt also for abetment of the same, were there any chance of proving any such abetment. On the other hand, if the theft be true, and the allegation about the Mohunt be false, then Grish deserves to be punished for wanton defamation.' It has been urged that the order made by the Deputy Magistrate has been suggested by the order of the Magistrate and is intended to be in compliance with it. With regard to the first view, we think it clear that this order does not mean to give Grish Chunder sanction to prosecute. It does not purport to do so; and unless it did, it is difficult to see how it amounts to a sanction to prosecute. It only really submits the case to the District Magistrate to be dealt with under Section 211, if he thinks proper to do so, and the remark,-' All these persons may be tried under any other section of the Penal Code that may be found applicable,'-really means that, if a prosecution is instituted under Section 211, and it turns out that there are other sections under which these persons can be tried, they may be so tried. That does not assist us in construing the order. It does not show that sanction was given to Grish Chunder to prosecute. Whether this order may be construed in either of the two other ways that I have pointed out, is, we think, immaterial. In either case, we think it is an order that we can deal with, and we think that we can also deal with the order that has resulted from it, viz., the issue of warrants. The practical effect of either of these two constructions is the same. If we have power to interfere with an order under Section 476, we have equally power to interfere with a matter of this kind in which the Deputy Magistrate, having tried the case, makes an order sending the record with an invitation to the District Magistrate to prosecute. If this amounts to simply sending the case to the District Magistrate to deal with it under Section 211 of the Penal Code, then it is not a sanction to prosecute. If it is an order under Section 476 of the Criminal Procedure Code, then the considerations arise to which we will presently refer, viz., whether there was any necessity for a preliminary inquiry, and whether the absence of such preliminary inquiry has vitiated the inquiry purporting to be made under that section. We have ample jurisdiction to interfere on a question of this kind. In the first place we have the terms of the Criminal Procedure Code, which clearly show that we have such jurisdiction. Under Section 439, the High Court, in exercising its powers of revision, has the powers conferred on a Court of Appeal by Section 423 to alter or reverse an order of the lower Court. So that we have the same power to alter or reverse an order of this description as an Appellate Court would have in a case of appeal. This construction, we think, is confirmed by the cases cited in which different benches of this Court have interfered with orders made under this section, or under the corresponding section in the earlier Act. The cases to which we have been referred are first the case of Queen v. Baijoo Lall I.L.R. 1 Cal. 450 decided by Macpherson and Morris, JJ., and there is an earlier case, namely In the matter of the petition of Kali Prosunno Bagchee 23 W.R. Cr. 39.
4. There being jurisdiction, and the order being in the way described, the question arises whether this is a case in which we ought to interfere. We think that the Magistrate ought not to have made this order, and that there is no ground for his order. There is no doubt that before proceedings under Section 476 can be instituted, either there must be a preliminary inquiry held by the Magistrate, and in such inquiry there must be direct evidence fixing the offence upon the persons whom it is sought to charge, or in the earlier proceedings out of which this enquiry arises, there must be direct evidence charging these persons with an offence. It is not sufficient that the evidence in the earlier case may induce some sort of suspicion that these persons had been guilty of an offence. The law as laid down in the cases clearly shows, that before a Magistrate can proceed at all under that section, he must either in the case before him or in the inquiry which he must make have distinct evidence on the commission of an offence, If the order is to be construed in accordance with the third view we have mentioned, we equally think that it could only be made upon the footing that there was, before the Magistrate, direct and substantial evidence of the commission of an offence.
5. The learned Judges then proceeded to consider the evidence in all the rules, and concluded as follows:
It is clear to us that on the evidence in this case, the Magistrate was not justified in taking steps beyond the acquittal of Grish Chunder.
6. That being so we must set aside the order made by him of the 7th May 1889, beginning with the words,-' The records of the case will be submitted ****------down to the end.
7. And further we direct that the order made by Mr. Ainslie and the warrants issued by him be quashed.