1. In this case we think the Rule should be made absolute. What happened was this. It was brought to the knowledge of the learned Munsif who had tried a particular case, No. 614 of 1915, that certain persons, one of whom was the petitioner to this Court, had endeavoured to rescue a certain person from the custody of the execution peon. The learned Munsif directed these persons to appear before him and to show cause why they should not be committed for trial in the Criminal Court. Then it came to his knowledge that a relation of his was assisting to conduct the case for some of the accused. He, therefore, very properly-felt that he ought not to adjudicate upon the case. Consequently, he proceeded to send 'the aforesaid persons to the Magistrate to try them on the charge of snatching away Sadhan Chandra Nandy from the lawful custody of the said peon.' He also sent 'the said Sadhan Chandra Nandy to the Magistrate to take his trial before him for abetting the aforesaid persons in the commission of the offence'. To my mind it is clear that he purported to act under Section 476, Criminal Procedure Code.
2. The question arises whether he had power so to do. In my opinion he had not; first, because the Section in pursuance of which the accused persons were charged was Section 225B of the Indian Penal Court. That is a Section which is not mentioned in Section 195 of the Criminal Procedure Code. Therefore for that reason the learned Munsif would not have power to sand the accused for trial for that offence.
3. But there is another reason which to my mind is a more important reason, and it is this Section 476, Criminal Procedure Code, say, 'when any Civil, Criminal or Revenue Court is of opinion that there is ground for enquiring into any offence referred to in Section 195 and committed before it or brought under its notice in the course of a judicial proceeding, such Court, after making any preliminary enquiry that may be necessary may send the case for enquiry or trial to the nearest Magistrate of the first class'. Now it is quite evident in this case that the learned Munsif made no preliminary enquiry-whatsoever. It was reported to him that these persons had snatched away or endeavoured to snatch away the judgment-debtor from the custody of the peon. He did not make any enquiry. It is quite true, as has been pointed out by Mr. Mookerjee, that the words are 'any preliminary enquiry that may be necessary', and I can quite imagine that in certain cases no preliminary enquiry is necessary. It may be that in a case where the Judge is trying the case and all the facts which are material to the charge have been brought to the notice of the learned Judge, or have come out during the course of the hearing of the case, it would be mere waste of time and quite unnecessary to hold a preliminary enquiry, because the learned Judge is already in possession of all the material facts on which it is necessary for him to form the judgment. But in such a case as this, where the incident took place outside the Court, and as to which the learned Judge himself could have no knowledge and as to which evidence must be called for, in my judgment, unless he does hold such a preliminary enquiry as may be necessary to enable him to determine whether or not there is any case fit to be sent to the Magistrate, he has no jurisdiction to send the accused under Section 476, Criminal Procedure Code.
4. For these two reasons in my judgment the learned Munsif had no jurisdiction.
5. I think one ought to say that our decision does not necessarily put an end to any such proceedings as ought to be taken against the accused persons. A complaint may be laid before the Magistrate in the ordinary way in respect of this matter and the learned Magistrate may proceed to enquire into it in the usual course.
6. In our opinion, this Rule, which is obtained by the petitioner in this case, should be made absolute. But we think that it ought to be made applicable to all the accused persons.
7. I agree.