Lancelot Sanderson, C.J.
1. This was a Rule issued by two of my learned brothers, Mr. Justice Walmsley and Mr. Justice C. C. Ghose, and obtained by the complainant calling upon the District Magistrate and on the opposite party to show cause why the orders complained of should not be set aside.
2. The facts of this case, so far as they are necessary for me to state for the purpose of my judgment, are these:
The complainant made a complaint against certain persons with regard to the cutting and removal of certain paddy and the allegation was that the paddy was removed by certain Barkandazes with the connivance or at the instigation of Manindra Chandra Roy Chowdhury who was called accused No. 1. It was alleged by the complainant that one of the persons who actually cut and removed the paddy was one Mokimuddin. The Magistrate who took cognizance of this case asked for a report arid on receipt of the report issued a summons against Mokimuddin only. The Sub-Deputy Magistrate, to whom the case was made over for disposal, after hearing the evidence which the complainant produced dismissed the case against Mokimuddin on the ground, as I understand, that there was not sufficient evidence to identify Mokimuddin with regard to this alleged offence. Then the complainant desired to proceed against the accused No. 1, Manindra Chandra Roy Chowdhury, who was the zemindar of the complainant. The Sub-Deputy Magistrate then directed notice to be served upon Manindra Chandra Roy Chowdhury to show cause why process should not issue against him. Cause was shown by Manindra Chandra Roy Chowdhury. We were informed by the learned Vakil who showed cause in this Rule, that a petition was put in by Manindra Chandra Roy Chowdhury and that a learned Pleader appeared for him and showed cause why process should not issue. The result was that the Sub-Deputy Magistrate came to the following conclusion, to use his own words: I do not find any reason to issue any process against Manindra Babu. I assume that that amounted to an order dismissing the complainant's complaint, as against Manindra Chandra Roy Chowdhury.
3. Thereupon the complainant applied to the learned Sessions Judge for the purpose of setting aside the order of the Sub-Deputy Magistrate and that application was dismissed, although the learned Sessions Judge came to the conclusion that the procedure adopted by the Sub-Deputy Magistrate in calling upon Manindra Chandra Roy Chowdhury to show cause why he should not be proceeded against, was improper and irregular. The learned Sessions Judge came to the conclusion on the facts that there was no case against the first accused and consequently he dismissed the application.
4. I agree with the learned Sessions Judge that the procedure adopted in this case as between the complainant and Manindra Chandra Roy Chowdhury was improper and was not in accordance with the provisions of the Code of Criminal Procedure. My learned brother Mr. Justice Walmsley and I had to consider a case, in which in similar point arose, see Balai Lall v. Pashupati Chatterjee 35 Ind. Cas. 828 : 25 C.L.J. 606 : 21 C.W.N. 127 : 17 Cr.L.J. 396. I desire to draw the attention of the Magistrate to that case. I refer to two passages in the judgment in that case which are to be found at page 608* or 129+ in the (other) report, they are as follows:
The second irregularity which is relied upon was that the learned Magistrate did not confine himself to the evidence of the complainant and the report which was made by the Police Officer but that he allowed the accused to be represented by a learned Pleader and to address him to argue the points which arose in the case and to-put in a detailed statement of the points and the facts upon which the defence relied.
To my mind this procedure is quite inconsistent with the scheme of this legislation : I do not understand how the accused person ever goes before the Magistrate until the Magistrate has made up his mind to issue process. The Magistrate is directed by the Statute to enquire into the case in certain specified ways, and then having investigated the matter in one or other of the specified ways he is to decide whether process ought to issue, and then if he thinks that process ought to issue he should direct process to issue. Then the accused person appears, and if he has got a defence, his defence is investigated as well as the case for the prosecution. That being so, it appears to me that the learned Magistrate has not acted in this case in accordance with the procedure which is laid down by the Criminal Procedure Code.
5. In this case I am of opinion that the Magistrate did not act in accordance with the provisions of the Criminal Procedure Code as laid down in Sections 202 and 203 of the Criminal Procedure Code, and the learned Sessions Judge was quite right in saying that the procedure was improper and irregular. I hope that the judgment, which we are delivering in this case and the judgment which this Court delivered in the case of Balailal v. Pasupati 35 Ind. Cas. 828 : 25 C.L.J. 606 : 21 C.W.N. 127 : 17 Cr.L.J. 396, will be brought to the notice ~ of Magistrates and that they will observe in this respect the plain provisions of the Code of Criminal Procedure. If Magistrates do not comply with the provisions in the Code, the inevitable result is that Rules are applied for in this Court and they have to be granted because the Magistrates do not follow the* previsions of the Code of Criminal Procedure, and much time is unnecessarily wasted. In this case we do not intend to send the case back for further investigation, and we propose to discharge the Rule on the ground that the two lower Courts, that is, the learned Sessions Judge and the Sub-Deputy Magistrate, both came to the conclusion on the facts of the case that there was no ground for the complaint against the first accused, and having regard to additional matters which have been brought to our notice at the hearing of this Rule, I am of opinion that it will be mere waste of time to direct this case to be reheard. As far as it is possible to foresee, the result would be the same if we were to send this case to the Magistrate for rehearing. Although we are not sending the case back to the lower Court, it must not foe understood that we approve of the procedure which was adopted in this case.
6. The Rule is discharged.
7. I agree.