D. Chatterjee and Teunon, JJ.
1. In this case a rule issued calling upon the Chief Presidency Magistrate to show cause why certain proceedings should not he quashed on the ground that the materials before him did not disclose any offence within Section 477 of the Indian Penal Code; that the sending of the case to the Honorary Magistrate was without jurisdiction, and that under the circumstances the order for seizure of the books ought not to have been made.
2. The facts are that, on the 3rd of February, one Girish Chandra Sadhukhan acting professedly on behalf of his minor son, Nagendra Nath Sadhukhan, and two infant daughters, made to the Chief Presidency Magistrate a complaint to the effect that in Eaisak 1314, corresponding with April 1907, his wife Panna Moyee Dassee had entered into partnership with the three accused, that on her death her interest had devolved upon her children, and that on the death of her father, one Hari Dass Sadhukhan, in Aghran, that is November-December 1909, the three accused acting in the interests of Hari Dass' son Johur Lal had fraudulently tampered with the account books of the partnership business.
3. In accordance with the prayer of the petition the Chief Presidency Magistrate on this complaint directed the Town Police 'to inquire and report and to take possession of the khata books' meaning thereby the jabda (or day books) and the khatians (or ledgers) for the years 1314 and 1315. The investigating police officer submitted his report on the 7th of February.
4. Thereafter, on the 18th of March, being apparently not satisfied with this report, the Magistrate next referred the case to an Honorary Magistrate for further enquiry and report. The Honorary Magistrate examined the complainant and his three witnesses, viz., one Panch Kouri Sadhukhan and two police officers, and, on the 6th June, reported that the charge was not 'utterly devoid of foundation.'
5. On this report, on the 7th of June, the Chief Presidency Magistrate directed the issue of process for the attendance of the accused to answer a charge under Section 477 of the Indian Penal Code. It is against this order that the pre sent rule is directed.
6. On behalf of the petitioners two objections, which may be described as preliminary objections, are taken, to the procedure adopted by the Chief Presidency Magistrate. It is contended in the first place that the order upon the police to take possession of the account books of the firm is illegal. It is not disputed that this contention is well founded, and it is clear that, if the Chief Presidency Magistrate considered that the production of the account books was necessary, he should have issued either a summons to produce under the provisions of Section 94 of the Criminal Procedure Code, or a search warrant under the provisions of Section 96. Beyond observing that, if the regular procedure had been followed, it is probable that the parties would have been spared the inconvenience caused by the seizure of the account books for the current year, 1316, we need not refer to this matter further.
7. In the next place it is contended that the order of the J.8th of March directing a Subordinate Magistrate to enquire and report is one not authorised by law. This also is a proposition that cannot be disputed. If, having first examined the complainant under the provisions of Section 200 of the Code of Criminal Procedure, the Magistrate was not satisfied that the case was one in which process should issue, he was competent, under Section 202, either to hold an inquiry and decide the matter upon evidence taken by himself, or to direct the making of a 'local investigation' by some Subordinate officer. Having directed such an investigation by a police officer, and having considered the result thereof, it was still open to him, in our opinion, if dissatisfied with the materials obtained, to direct a further local investigation or personally to make further inquiry and take evidence in the case. But if he thought proper to refer the case to some other Magistrate for an inquiry s other than a local investigation, the should, in our opinion, have transferred the case under; Section 192 of the Criminal Procedure Code to such Magistrate not for report but for disposal.
8. But no application having been made to this Court against the order of the 18th March, though we are sensible that, as the result of the delays flowing from this order, the parties in this case have been seriously harassed, we are not of opinion that by reason of this intermediate irregularity we should set aside the regular proceedings initiated by the order of the 7th of June.
9. This brings us to the substantial question involved in the rule, namely, whether on the materials before the Magistrate this prosecution should be permitted to continue.
10. In the first place, it may be observed that in his petition the complainant made no specific allegation, but that under examination by the Honorary Magistrate his complaint resolved itself into this, that when the jabda or day books of 1314 and 1315 were opened the title pages prefixed to those books showed the name of Nagendra Nath Sadhukhan as one of the four partners, and that after a short absence from the place of business he, on the 20th Magh, i.e., the 2nd of February 1910, discovered that for the original title-pages had been substituted title pages containing not the name of Nagendra but in place thereof the name of Hari Dass.
11. As at present advised we are not prepared to say that a title page containing the names of the several partners and showing the amount of capital contributed by each, if signed by the partners, would not be a 'valuable security' within the meaning of Section 30 of the Indian Penal Code, but neither the complainant nor his witness Panch Kouri say that the title pages in question were so signed.
12. But on behalf of the complainant it is urged that it is open to a Magistrate, at any stage of the proceedings, to alter or modify the charge, and it has been suggested that the substitution of the title pages, if established, may constitute, if not the offence punishable under Section 477, yet some other offence punishable under some other section of the Code, for instance, the offence of fabricating false evidence.
13. We have, therefore, thought it necessary to examine more closely the materials on which the Magistrate's order is based.
14. As we have already stated the complaint contains no specific allegation, yet if the complainant made the .discovery he speaks of on the 2nd of February there is no apparent reason why in his petition of the 3rd of February he should not have made a clear statement on the point.
15. Further, while the petition states or implies that the name originally entered in the books was Panna Moyee's, and that on her death (in 1314) the names of her three children were substituted, in their statement to the Honorary Magistrate both the complainant and his one witness Panch Kouri ignore the two daughters. The witness Panch Kouri again, the only witness whom the complainant was able to produce, contradicts him in several particulars.
16. The deed of partnership shows that Hari Dass was one of the four original partners, and the accused explain that the subsequent substitution in the books of the name of Nagendra, who is a boy of four, was a mere benami transaction. Thus the real question in dispute between the parties is whether Hari Dass' share has devolved upon his son Johur Lal or was transferred to his daughter Panna Moyee or to her son Nagendra.
17. The complainant admits that the sum in question, Rs. 14,000, was contributed by Hari Dass, and says Hari Dass made a gift of this sum to Panna Moyee or to her son Nagendra. But in support of this he can point to nothing but the substitution of names. In this state of facts, though we are fully alive to the danger of interfering with cases while they are still pending in the Subordinate Courts, we think that this case falls substantially within the rule laid down in the cases of Jagat Chandra Mozumdar v. Queen Empress (1899) I.L.R. 26 Calc. 786, Chna Lal Dass v. Anant Per shad Misser (1897) Calc. 25 Calc. 233, and Chandi Fershad v. Ahdur Rahman (1899) I.L.R. 26 Calc. 786, and that no useful purpose would be served by the continuance of these proceedings. We, therefore, set aside the order of the 7th of June, and direct that this prosecution be quashed.