1. This rule was issued on the District Magistrate of 24 Parganas to show cause why an order passed by Mr. M.B. Roy, Deputy Magistrate on 4th May 1946, should not be set aside.
2. The present petitioner filed a petition of complaint before the said Magistrate accusing two persons, P. Metharam and Babulal Chowkhani of offences punishable under Section 323 and 504, Penal Code. On 2nd May 1946, the learned Magistrate passed the following order:
Examined the complainant. Summon P. Metharam and Babulal under Section 323/504, Penal Code, fixing 22-5-1946.
3. It appears that each of the two accused persons had also filed complaints which in a sense can be regarded as cross cases. On 4th May 1946, the learned Magistrate recorded another order which runs as follows:
Read petition filed by accused. It appears that there are 2 counter complaints-one filed by accused Metharam and another by accused Babulal (real name being Babulal Chattani). These have been sent to O/C Tollygunge P.S. for verification and report by 22-5-1946. I am satisfied that summonses on the accused in this case were issued on insufficient grounds. As the counter cases are to be enquired into by the O/C this complaint should also be sent to him for verification and report.
So the order issuing summons is rescinded. Send a copy of this complaint to the O/C together with the counter petitions for report by the date fixed.
4. It is contended before me that once a Magistrate issues summons on a petition of complaint, he has no right to re-call that order and direct an enquiry under Section 202. It is clear that the Code of Criminal Procedure does not make provision for such a procedure. Moreover, the Code of Criminal Procedure does not contemplate that the accused should be heard to object to the issue of process against him before he appears to answer to that process. The procedure adopted by the learned Magistrate seems to me to be irregular in the extreme and I am of opinion that the Magistrate ought not to have heard the accused in the matter at all on 4th May 1946. He ought to have heard the accused only when the accused was answering the charges made against him. I think it is undesirable that, the practice adopted by the Magistrate in this particular case should be followed.
5. On the other hand in this particular case I am not satisfied that any injustice has been done. The matter has been sent for enquiry and the Magistrate, on receiving the report, can, if the facts justify, issue process. I am not satisfied that there is any justification for interfering with the learned Magistrate's order at this stage in spite of the irregularity of the proceedings. In the result the rule is discharged.