1. In this case a rule was issued to show cause why a certain complaint should not be with. drawn and the proceedings quashed.
2. The facts were that an application for the transfer of a certain criminal case had been made to the Additional District Magistrate at Barisal. The complainant put in an affidavit stating that the accused person had been seen coming away from the compound of the Magistrate to whom the case had been sent for disposal. A counter affidavit was put in sworn by the accused person denying this statement in toto. The learned Additional District Magistrate called for an explanation from the Magistrate to whom the case was sent for disposal. The learned Magistrate made a statement to the effect that there was not a word of truth in the statement made in the affidavit. Upon that the learned Additional District Magistrate on 25th June 1930, made an order stating that the complainant had filed such an affidavit and that the explanation of the trying Magistrate showed that this statement in the affidavit was false and that therefore a formal complaint should be drawn up against him. In the formal complaint which was drawn up as a result of the order of 25th June 1930 he also refers to the counter affidavit sworn by the accused as being part of the material upon which he had made the complaint.
3. Mr. Basu, on behalf of the petitioner, has raised certain objections, one being that this was an affidavit of the accused person and ought not to have been received in evidence. If this objection be sound in a matter such as this, there would be no way of challenging the statement which has been made by the complainant, namely that he had seen the accused coming out of the compound, because the only person living who could give affirmative evidence upon that point would be the accused himself. No one else, including the Magistrate himself, could say more than that they had never seen him in the compound. The result would be that a most serious cbarge could be made against the trying Magistrate with impunity by the complainant. I am not therefore certain in my mind whether such a counter affidavit would be inadmissible, for the purpose of deciding whether a complaint ought to be made, especially as it seems to me that the Additional District Magistrate might have asked the accused to make a statement on this point and might have acted upon it. But the learned Additional District Magistrate does not seem to have acted upon the counter affidavit but has relied only upon the statement of the learned Magistrate. Again personally I am not quite certain in my mind whether he would not be entitled to take such a statement into consideration when coming to a conclusion whether a complaint should be made or not. But it seems to us that whore technical objections of this kind can be raised against the reception of the evidence upon which the Additional District Magistrate was purporting to act, it was unwise, and it would always be unwise, to act upon it, when the difficulty can be overcome by directing an enquiry such as is mentioned in Section 476, Criminal P.C.
4. The last point taken by the learned advocate seems conclusive although it is purely technical. It appears that both the affidavits were stamped with nonjudicial stamps whereas the General Rules and Circular Orders (Criminal) require that the stamps upon such affidavits shall be court-fee stamps. Therefore both these affidavits should have been rejected as being inadmissible in evidence.
5. The result is, that this Rule is made absolute, the order of the Additional District Magistrate is set aside and the complaint withdrawn.
S.K. Ghose, J.
6. I agree, that the Rule should be made absolute.