1. This rule was directed against an order for a complaint to be made against certain persons for the offence of perjury and kindred offences in connexion with the conduct of a proceeding Udder Section 145, Criminal P.C. The Magistrate made the order and the learned Sessions Judge has confirmed it.
2. One ground that is taken is that having regard to the fact that in the proceeding under Section 145 it was held that it was not maintainable, the order of complaint was bad. There is no substance in this because the proceedings themselves were perfectly in order and were in no sense illegal, and therefore, the utmost that can be said is that it is a matter which might be considered as a possible element upon the question whether it was expedient in the interests of justice to make the complaint.
3. Another ground is that the order should not have been made because the dakhilas in respect of which the offence is alleged were not material to the case. But that however does not appear to be in accordance with fact because they were intended to support the case made by the party producing them that he was in exclusive possession of the particular portion of the land.
4. The other point raised is that the order of the Magistrate is not in conformity with the provisions of Section 476, Criminal P.C. That section lays down that when any Court is of opinion that it is expedient in the interests of justice that an enquiry should be made into any offence ... such Court may after such preliminary enquiry if any as it thinks necessary, record a finding to that effect and make a complaint thereof in writing. The order of the learned Magistrate in the present case is as follows:
Considered. Cause shown and heard pleaders. There is material for prosecution of (1) Baroda Kinkar Ghose under Sections 465, 467 and 193. I.P.C.; (2) Surendra Krista Dutta under Sections 467, 114 and 193, I.P.C.; (8) Satisj Chandra Maulik under Sections 467, 114, 471, 198 and 196, I.P.C. Draw up formal complaint against them for their prosecution and trial for the above-noted offences.
5. In stating that there is 'material for prosecution' of these persons we apprehend the learned Magistrate to indicate that in his opinion there may be a prima facie case against them. But nowhere within the four corners of this order can it be said that there is any finding recorded such as is referred to in Section 476, nor is it to be discovered that the learned Magistrate has in any way directed his mind to the question as to whether any such order as he makes is expedient in the interests of justice. On this ground the order of the learned Magistrate is set aside. It will of course be open to him if so advised to reconsider the matter in the light of the above remarks on the questions whether further proceedings should be instituted.
6. In these terms the rule is made absolute.