Debabrata Mookerjee, J.
1. This is a petition for revision of an order of the Additional Sessions Judge, of 24-Paraganas, dated the 10th July, 1956, by which the petitioner's application for a further enquiry was rejected.
2. The petitioner Ananda Krishna Mondal 2s a brother of Pran Krishna alias Palan Mondal who, it is said, was murdered on the night of the 23th, February, 1955, at the house of opposite party Bholanath Haldar in the village of Beota within Police Station Bhangar. The allegation is that all the six opposite parties murdered Pran Krishna and left him in a field close by. The petitioner lodged information with the Bhangar Police on the 3rd March, 1955, after discovery of the dead body in the field. The police held the usual investigation and submitted on the 6th August, 1955, a final report stating that the case was true, taut no clues had been obtained as respects the culprits. Thereafter a Naraji petition was filed on the 5th September, 1955, and it was judicially enquired into by a Magistrate of the First Class. It was eventually reported as the result of the inquiry that no prima facie case had been made out against the opposite parties. The report was Placed for consideration of the learned Magistrate who had directed the judicial enquiry, and he dismissed the complaint on the 7th April, 1956, under Section 203 of the Code of Criminal Procedure. Against this order the petitioner applied to the Sessions Judge under Section 436 of the Code for a further enquiry into the complaint; the learned Additional Sessions Judge who dealt with the matter refused the application by his order, dated the 10th July, 1956, whereafter the Petitioner obtained the present Rule.
3. The question that arises for consideration in this Rule is whether in the facts and circumstances a further enquiry should be directed into the petitioner's complaint. Several points have been made by Mrs. Nag on behalf or the petitioner and my attention has been drawn to excerpts from evidence at the judicial enquiry with a view to showing that the order of the learned Judge as also that of the Magistrate are wholly unjustified.
4. There was no direct evidence of murder produced at the enquiry. The evidence was of circumstantial nature, and it consisted mainly of the testimony of a person called Manik Chandra Mondal and of several others. Manik's evidence is to the effect that he happened to go to the house of opposite party Bhclanath Haldar at about 11/30 p. m., one night when he found in the light of the lamp that was burning that a dead body was being carried from inside Bholanath's house and it was placed on a bamboo chali. The body was carried by some of the opposite parties, while opposite parties Bholanath Haldar and Manmatha Nasker were seated on the ledge. The witness saw all this in the light of the lamp, and as the persons who carried the dead body were known from before, he was able to recognise them all. One of the opposite parties, Bepin Naskar, entreated the witness not to disclose what he had seen, and admitted that the dastardly act had been done out of grudge. The witness reported this to several persons, and he was advised to disclose everything he had seen and heard. Next morning when the Daroga arrived, this witness appeared and later made a statement. The other group of persons merely proved that on the night of the occurrence, the accused persons were seen to associate with the deceased. The learned Judge has referred to this body of evidence and appears to have thought of it as inconclusive.
5. In the first place, it is to be seen whether the order dismissing the complaint is a valid and proper order. The Magistrate who dealt with the matter merely stated that he had seen the report of the enquiring Magistrate which showed that there was no prima facie case. In that view, he dismissed the complaint under Section 203 of the Code. No reasons, however, were given by the learned Magistrate in making his order of dismissal under Section 203 of the Code. That section provides that the Magistrate before whom a complaint is made may dismiss a complaint if after considering the statement on oath of the complainant and the witnesses and the result of enquiry, under Section 202, there is, in his judgment, no sufficient ground for proceeding. In such cases, the Magistrate is required to briefly record his reasons for so doing.
6. The order of the Magistrate by which the complaint was dismissed merely endorses and adopts the report of the enquiring Magistrate. It does not consider the evidence at the judicial enquiry, although the Magistrate was directed to do so by the terms of Section 203 of the Code. There is a bare reference to the report of judicial enquiry which is taken for granted, and no effort was made by the Magistrate to consider and sift the report. Section 203 requires that it is the Magistrate's judgment which is to prevail and not the opinion of the enquiring officer. If in the judgment of the Magistrate, no sufficient ground is made out, it is only then that the complaint is to be dismissed, and while so dismissing it the Magistrate is required to record briefly his reasons for so doing. The order of the Magistrate seems to me to be bad in three ways. First, there is no independent consideration of the report of the enquiring officer; secondly, it does not even advert to the statements of the witnesses who were examined at the judicial enquiry; and thirdly no reasons were given by the learned Magistrate for dismissing the complaint. The amended Code requires that the Magistrate dealing with a complaint under Section 203 should consider not only the statement of the complainant, but also the statements of the witnesses at the inquiry. It was not within the competence of the Magistrate to delegate that duty in favour of the enquiring Magistrate and relieve himself of the responsibility of considering on his own account the statement of witnesses at the judicial enquiry. In my view, the order of dismissal of the complaint under Section 203 made by the Magistrate did not conform to the requirements of the law and was consequently not a proper order.
7. The learned Additional Sessions Judge Who dealt with the matter omitted to consider all these questions. He referred to the circumstance that witness Manik Chandra Mondal who appears to have given important evidence at the judicial enquiry had made before the police a statement giving a different version of the occurrence.
8. I do not know how it was open to the learned Judge to consider the effect of the contradiction between the statement of Manik in Court and his statement before the police. It does not appear that any questions were asked which would bring on the record the statement made by him to the police. In any event, the question before the Judge was whether there should be a further enquiry into the matter. The stage for final assessment of evidence had not arrived. When that stage arrives and proper materials are placed before the Court, the Court will then be in a position to pronounce upon the guilt or innocence of the opposite parties, 'The entire chain of circumstance revealed in the case,' observed the learned Judge, 'cannot be treated as incriminating or sufficiently conclusive to warrant a conviction against any one of the accused persons.' This excerpt from the learned Judge's order is typical and appears to represent the point of view from which the learned Judge approached the question. I am afraid it was entirely wrong to think that no further enquiry was necessary inasmuch as there was no evidence conclusively proving the guilt of the opposite parties. The question before the learned Judge was whether there was a prima facie case for process to issue. Instead ,of that the learned Judge embarked upon an enquiry as to whether the evidence was conclusive of the guilt of the opposite parties, By doing what he has done, the learned Judge clearly went beyond the limits of Section 436 of the Code of Criminal Procedure, and took upon himself the duty and responsibility of expressing a final opinion as to the guilt or innocence of the opposite parties. Section 436 merely required of the Judge to see whether there was any scope for further enquiry into the matter. It did not certainly require him to pronounce finally upon the question of the credibility of the evidence. The entire approach of the learned Judge to the question under consideration was, in my view, erroncous. The only question that awaited the decision of the Judge was whether there were sufficient materials before him to direct a further enquiry. Clearly the learned Judge misconceived the issue before him.
9. In these circumstances, I must set aside the orders complained of and direct a further enquiry into the complaint. The enquiry will be held by a new Magistrate to be selected by the District Magistrate of 24-Parganas.
10. This rule is accordingly made absolute.