1. This matter has already once been before this Court under circumstances somewhat similar to those now before us. The petitioners were then being prosecuted for perjury and forgery, alleged to have been committed in proceedings taken before the Deputy Collector under the Land Acquisition Act? And for reasons stated by the Judges of the Criminal Bench of this Court, on a rule granted, the proceedings were quashed as premature and without jurisdiction. The Collector, finding that the bar has been removed because the Civil Court has, in his opinion, finally decided the matter under the Land Acquisition Act, has renewed his complaint before the Magistrate and he has put the offence under Section 177, Indian Penal Code, which is declared to be applicable to such proceedings by Section 10 of the Land Acquisition Act.
2. The complaint was made against two persons, Durga Das Rakhit, the lessor, and Abhoy Charan Dey, the lessee, claiming to hold a portion of the land taken, up under the Act, and they have been accused of having given false information within the terms of Section 177, Indian Penal Code, and Section 10, Land Acquisition Act, in certain written statements that they made to the Collector in response to a call from him under Section 9. We may first of all observe that neither in the complaint made by the Deputy Collector nor in hiss examination by the Magistrate has any reference been made to any particular statement made by either of the accused as being a false statement. The complaint is that the written statements put in were false. It is clear that those documents contained more than one statement of fact. We also. find that the Deputy Collector had not put in the written statements. upon which the Collector desired to proceed either with his written complaint or at the time of his examination by the Magistrate. The Magistrate, therefore, had not before him the facts constituting the offence regarding which he was called upon to act, and notwithstanding this, he issued processes for the attendance of the accused.
3. Now in this respect we think that the Magistrate has acted without proper discretion. He was bound to require from the complainant the written statements on which the proceedings were founded, and also to ascertain from the complainant the particular statement or statements on which the accusation was made.
4. On the day fixed for trial, the case being a summons case, Abhoy Charan Dey appeared and appearance was made on behalf of Durga Das Rakhit by his mukhtar who asked the Magistrate under Section 205 to dispense with the personal attendance of that accused. At the same time Abhoy Charan Dey, who did personally attend, asked for and obtained an order from the Magistrate excusing his further personal attendance and allowing him to appear by a mukhtar. The Magistrate, however, refused to allow the application made on behalf of Durga Das Rakhit, and he regarded his non-attendance as a contempt of Court, misapplying that term as it is generally used. He accordingly called upon Durga Das Rakhit to show cause why he should not be prosecuted under Section 174, Indian Penal Code, for non-attendance, on service of summons, and the Magistrate has, in his explanation, expressed himself strongly regarding the conduct of Durga Das Rakhit in this respect.
5. We think that the Magistrate has taken an entirely mistaken view of this part of the case. He seems to have been animated by some feeling that Durga Das Rakhit was acting contemptuously towards the Court. There was no reason for this supposition. The Magistrate should rather have told the mukhtar that he required the personal attendance of Durga Das Rakhit on some fixed day, or that if he did not choose to appear he would issue a warrant of arrest. That in our opinion would have answered sufficiently, The Magistrate, however, appears to have regarded it as an aggravation of the offence that Durga Das Rakhit should instead of attending his Court have proceeded to Calcutta in order to apply to the High Court, and that he also applied to the District Magistrate for bail as well as for an order directing the Subordinate Magistrate to dispense with the personal attendance of the accused. He considers that by making this application Durga Das Rakhit was 'doubly guilty of contempt of Court.' Throughout, the Magistrate has failed to appreciate what he was entitled to expect from Durga Das Rakhit. There was no possible reason why he should not proceed to the High Court to make an application regarding this case, and he was also within his rights in making his application to the District Magistrate. He did make an appearance, though not a personal appearance, on service of summons, but that he did not personally attend, should not under the circumstances have been regarded as an offence under Section 174. We think, therefore, that the proceedings under Section 174, Indian Penal Code, against Durga Das Rakhit were misconceived and that they should case.
6. In regard to the prosecution under Section 177, we are of opinion that, as now taken, the complaint is bad, and that the case should not be allowed to proceed in its present form. We are further of opinion that inasmuch as the proceedings are still before the High Court in respect of Abhoy Charan Dey, no prosecution should be taken in the Magistrate's Court, until at least the final orders of the High Court shall have been obtained. No doubt there was a reference made by the Deputy Collector to the District Judge in respect of the objection to the award made by Durga Das Rakhit, and we understand that, in consequence of his absence, that reference has been summarily dismissed. But the matter still remains in regard to Abhoy Charan Dey whose case the Deputy Collector refused to refer. It is difficult to understand how the oases of these two persons claiming to be lessor and lessee can be distinguished, and on this ground and because there are proceedings now before the High Court, we think that there should be no proceedings at all against either Abhoy Charan Dey or Durga Das Rakhit until orders of the High Court shall have been obtained. We would again point out that in the Magistrate's Court the complaint was made against these two jointly. But any offence committed by each is a distinct and separate offence and should be tried separately. The rule is therefore, made absolute.