1. This rule was issued to show cause why the order complained of in the petition should not be set aside and the petitioner's complaint directed to be taken up and proceeded with in accordance with law. What happened was that there was a collision between the parties on 6th September 1928, which resulted in the petitioner's filing a complaint before the Magistrate against the opposite party under Sections 147, 447, 352, etc., I.P.C., and the opposite party making a similar complaint against the petitioner for similar offences. After recording the petitioner's complaint the trying Magistrate looked into the counter case in which the information was first loged with the police and as he found that there were injuries on some persons of the opposite party he directed that the case of the opposite party should proceed and deferred passing any order on the petitioner's complaint. The petitioner moved unsuccessfully before the Sessions Judge and he now contends that he should have been allowed to proceed with his case simultaneously with the case of the opposite party. We have therefore to consider whether in the circumstances of the case the order passed by the trying Magistrate is justifiable. The question as to which of the counter-cases should proceed first or whether bothof them should proceed simultaneously and contemporaneously so often arises in the Courts below and has so often come up to this Court that it would be very satisfactory if it should be finally settled either by the authority of rulings of this Court or by legislation. The cases upon this point have been exhaustively discussed in Makham Mapa v. Manindra Nath Bose : AIR1925Cal1260 , to which I was a party and I adhere to the opinion expressed in that case namely:
In this state of the case-law we feel that there is no authority which is absolutely binding upon us. The Code is silent with regard to the procedure to be adopted in such circumstances. It should not, therefore, be laid down as an absolute rule of law that a particular course must be adopted. Each case has to be decided according to its requirements.
2. It is argued by the learned advocate for the petitioner that after examining the complaint in the petitioner's case the Magistrate was bound under the law either to dismiss the complaint if he was not satisfied with the truth of it or to issue a process or order an enquiry. But he could not after examining the complainant defer passing any order under Sections 202, 203 or 204, Criminal P.C. His contention is that the Magistrate has no power under Section 344 to postpone an enquiry or the trial of the case at that stage but he can only do it after he has complied with the provision of Section 204, Criminal P.C. This contention has no substance in it inasmuch as Section 344 empowers the Magistrate not only to adjourn an enquiry or trial but postpone its commencement : and Section 204 is one of the sections which comes under the chapter headed 'of the commencement of proceedings before Magistrate.' That being so, under the law four courses are open to the Magistrate on receipt of a complaint. He may either order an enquiry under Section 202 or dismiss the complaint under Section 203 or issue process under Section 204 or postpone the commencement of the proceeding under Section 344. In this case it is apparent that the Magistrate has proceeded under Section 344. But under that section he has to state his reasons for postponing the commencement of the proceedings. We have accordingly to see if the Magistrate has stated any reason in support of his order and if the reason given by him is sufficient to justify the order. The reason given by the Magistrate is that on looking into the information given at the thane by the opposite party and the report of the Assistant Surgeon of the injuries on the person of the son of the opposite party, he thought it proper to order that the present case should be put up after the disposal of the counter case.
3. Mr. Chatterji, the learned advocate for the petitioner, argues that in this case it is proper that both the cases should be tried simultaneously as the point in dispute between the parties is whether the land on which the occurrence took place belonged to the petitioner or the opposite party and that the petitioner as an accused in the counter case will not be in a position to prove his possession or title to the land as he will be debarred from pledging his own oath. As I said in Makham's case : AIR1925Cal1260 every case ought to be considered on its own circumstances. But in the present case there does not seem to be any such circumstance which would make it incumbent on the Magistrate to proceed with it along with the case brought by the petitioner. I can conceive of eases in which it may be desirable that the accused in a case who is the complainant in another case should be given an opportunity of proving his case also during the prosecution of the case against him. But the present case is not one of such a character. It is possible that the dispute may concern land, possession or title to which can only be proved by the accused and there may be documents in his favour which he is not able to prove except by his own examination. In such a case the Magistrate will exercise sound discretion in allowing the accused in a case to proceed with the counter case. Some of the decided cases have proceeded upon' the idea that if a complainant who is an accused person in a counter case 'expresses his desire to proceed with his case, the Magistrate should not prevent him from doing so. In some other cases it has been said that if the accused in a case desires that his counter case should not be proceeded with along with the case against him, he should not be compelled to go on with his case before the counter case is finished. But these are considerations which should not be taken into account in laying down the law on this point, when there is no relevant procedure in the Criminal Procedure Code. These are considerations which may enable the Court to pronounce in a certain case that a certain procedure is proper.
4. In the present case the only allegation made in the petition before us is that it is eminently desirable that both the cases should be taken up simultaneously as otherwise the petitioner will be seriously prejudiced in his defence in the counter case as he will not be able to give his evidence therein. But he has not given more details as to how the prejudice will be caused and whether such prejudice cannot be avoided by the Magistrate adopting the course which I suggest in cases of. persons bringing counter cases against each other. The apprehension which the petitioner entertains about his inability to prove his case before the counter case is 'decided may be removed by the Magistrate proceeding with the counter case first as he proposes to do and then defer passing orders on it till he has also finished the petitioner's case. He will, of course, not be entitled to refer to the evidence of one case in deciding the other. But he will be in a position to form a correct judgment as to the real nature of the dispute between the parties. In this view I think that it is not a proper case where we should interfere with the discretion of the Magistrate at this stage and I will accordingly discharge this rule
5. In this case a rule was issued to show cause why the order of the Magistrate dated 10th September 1928 should not be set aside and why the petitioner's complaint should not be directed to be proceeded with according to law. The order in question is in these terms:
Seen copy of the information at the thana by the complainant of the counter case and the Assistant Surgeon's report of the injury on the person of the son of the complainant of the counter case. Put this case up after the disposal of the counter case.
6. On behalf of the petitioner it has been submitted that this order is illegal, and that after examining the complainant the Magistrate had one of the three alternative courses open to him either firstly to dismiss the complaint, or secondly, to issue process, or thirdly to enquire into the case, or direct an enquiry to be made. It is clear in the present case that the Magistrate did not adopt either of the first two alternatives. What apparently he contemplated was the adoption of the third course. But for the reasons which he has given he postponed his enquiry. The question is whether this procedure is warranted by law. In this connexion reference may be made to Section 344, Criminal P.C. Reading that section in conjunction with Section 202, Criminal P.C. it seems to me that the Magistrate undoubtedly had jurisdiction to postpone his enquiry; and even, apart from this section, the Court must, I think, be held to have inherent jurisdiction to make such an order. In my opinion, the order was in accordance with law and having regard to the particular circumstances of this case, it seems to me, that there can be no doubt as regards the propriety of the order. As the learned Magistrate has pointed out in his explanation he purposely avoided dismissing the petitioner's complaint because he desired to be fair to both parties since it was obvious that, until the counter case had been tried and disposed of, it was not possible to say which version was the true one. For the reasons stated, I agree with my learned brother that this rule should be discharged.