1. The facts of this case are as follows: On the morning of the 25th May last, Mr. Pratt, the Joint Magistrate of Purneah, was riding along in a portion of the district, when one Chumroo Mondul came to him, and complained that a dacoity had been committed on the previous night in the house of his brother, Giridhari Mondul. Mr. Pratt immediately proceeded to the spot, and made, what we must assume to be, a preliminary enquiry under the provisions of Section 115 of the Code of Criminal Procedure, or what is commonly called a local investigation, conducted, not in his judicial capacity as Joint Magistrate, but in his administrative or executive capacity as a Police-officer. To this conclusion we are led by several facts. In the first place, there is no record of the examination of witnesses taken down in the manner directed by the Code of Criminal Procedure for proceedings of a judicial nature. In the second place, Mr. Pratt did not proceed to dispose definitively of the case of dacoity; and this he would probably have done if he had been acting as a judicial officer. In the third place, he forwarded, by a memorandum of the 28th May, his proceedings to the Magistrate and the District Superintendent of Police for information; and this is only consistent with the supposition that Mr. Pratt conceived himself to be acting in his administrative or executive capacity, and as a Police-officer. It appears that the local enquiry made by the Joint Magistrate extended over the days intervening between and including the 25th and 28th May. On the 28th May, Mr. Pratt recorded, with some care, the investigation which he had made, and the conclusion to which he was led; and, as has been already observed, this record was forwarded to the Magistrate of the district. Upon the same day, Mr. Weekes, the Magistrate, recorded certain observations, expressing his concurrence generally with the conclusion at which the Joint Magistrate had arrived, but no final orders were passed upon the case. It would then appear that, in the course of some other proceedings held before the Police or before some of the magisterial authorities, one Badhri Dosadh made certain statements as to having taken part in certain dacoities, and having received, and being in possession of, certain property taken in those dacoities. Giridhari Mondul, in whose house the dacoity of the 25th May is said to have taken place, was upon this sent for, together with certain members of his family, and they were examined by the Joint Magistrate on the 13th June. These witnesses did not, however, identify any of the property produced by Badhri Dosadh as property taken on the night of the 25th May. The Joint Magistrate, after examining Giridhari Mondul and the members of his family, released Badhri Dosadh on fifty rupees bail; and by an order, dated the 28th June, he transferred the case of Badhri Dosadh to the District Magistrate for orders. On the 6th July, the District Magistrate, Mr. Weekes, took up the case, and made the order that Badhri Dosadh be released from bail. Meanwhile it would seem that no judicial proceedings were being taken upon the original charge of dacoity made by Chumroo Mondul to the Joint Magistrate on the morning of the 25th May, and no final orders had been passed upon the report of the preliminary enquiry submitted by the Joint Magistrate, Mr. Pratt. We then find that, on the 13th July, the District Magistrate took up this case and made the following order: 'Nunhoo directed to bring a case under Section 211 of the Penal Code.' Nunhoo is an alias for one Uchit Jha, whose name had been given by Chumroo Mondul and Giridhari Mondul as that of a person recognized by his voice or otherwise at the time of the dacoity. There is nothing on the papers before us to show that Uchit Jha was arrested, or that any enquiry of a judicial nature, conducted with judicial formalities, was ever made into the charge of dacoity made against this Uchit Jha and certain other persons who had been mentioned by Chumroo Mondul and his brother Giridhari Mondul as persons present at the time of the dacoity. It has been repeatedly pointed out by this Court that it is not a fair course towards a prosecutor to direct him to be placed upon his trial under Section 211 of the Penal Code without having first given him an opportunity of having a judicial enquiry into the charge originally preferred by him. In the present case, it is clear that Chumroo Mondul and his brother Giridhari had no opportunity of producing witnesses and establishing before an officer acting in a magisterial capacity the charge of dacoity which had originally been made on the morning of the 25th May. We think that, under these circumstances, if the order of the 13th July, which has been already quoted, was intended as a sanction under Section 4682 of the Code of Criminal Procedure, it was made without proper discretion, and in opposition to what has been repeatedly laid down by this Court as the proper course to be pursued in these matters. But, upon a full consideration of the case, it appears to us that this order cannot properly be considered as a sanction within the meaning of Section 468. There had been no judicial proceeding, and the offence, if any, committed under Section 211 was not committed before or against a Court. It has been decided that, in the case of a complaint made to the Police, the sanction required by Section 468 is not necessary. It is further to be observed that, if this order of the 13th July was intended as a sanction under Section 468, it is expressed in an improper manner: 'Nunhoo directed to bring a case under Section 211.' In the mofussil the effect of such a direction upon a person in complainant's position of life would be, that he would feel himself constrained to carry out the direction so conveyed to him by the Chief Magistrate of the District. The sanction contemplated by Section 468 is something very different from this, inasmuch as it leaves a private prosecutor free to exercise his own unfettered discretion as to whether he will proceed or not. We find a further order, dated the 30th August, in which the Magistrate instructs the District Superintendent of Police to direct the prosecution. We cannot suppose that the District Magistrate intended to assume in this case the functions of a public prosecutor, or that the prosecution under Section 211 was intended to be inaugurated and conducted as a prosecution on behalf of Government. This being so, we are of opinion that this further order that the District Superintendent should direct the prosecution was calculated to prejudice still further the accused persons against whom Nunhoo was directed to bring a charge under Section 211. The proceedings in the dacoity-case not being proceedings before a Court, no sanction under Section 468 was requisite; and regarding these proceedings as proceedings merely before a Police-officer, we think that the order of the Magistrate directing Nunhoo to institute a case under Section 211, and the further order directing the District Superintendent of Police to take charge of that prosecution, were made without jurisdiction, and must be set aside. We have been asked further to direct that the private prosecution insituted by Uchit Jha should determine, or, at least, that the proceedings taken upon that prosecution should be stayed until there has been a judicial enquiry into the charge of dacoity. We think that we have not jurisdiction to make an order to this effect; and that if Uchit Jha is disposed, at his own instance, to proceed with the charge under Section 211 of the Penal Code, we cannot interfere to prevent him. At the same time, we think it proper to observe, that if Chumroo Mondul and Girdhari Mondul desire that the original charge of dacoity should be judicially enquired into, it is not competent to the District Magistrate to refuse a judicial enquiry into that charge as originally made on the morning of the 25th May.
2[Section 468: A complaint of an offence against public justice, described in section one hundred and ninety-three, one hundred and ninety-four one and ninety-six one offences against public hundred and ninety-nine, two hundred, two hundred and five justice. two hundred and six, two hundred and seven, two hundred and eight, two hundred and nine, two hundred and ten, two hundred and eleven, or two hundred and twenty-eight of the Indian Penal Code, when such offence is committed before or against a Civil or Criminal Court, shall not be entertained in the Criminal Courts, except with the sanction of the Court before or against which the offence was committed, or of some other Court to which such Court is subordinate.]
Prosecution for certain hundred and ninety-five, one hundred.