1. This Rule was issued at the instance of a complainant against an order dismissing the complainant's petition under Section 500, Penal Code. The complainant came to Court with the allegation that at the instance of one Krishna Chandra Mukherji, an auditor appointed under the Co-operative Societies Act, viz., Sri Anil Chandra Banerji, had 'mala fide' submitted an audit report containing grave allegations of a defamatory character 'against him.
2. The learned Magistrate in dismissing thepetition has now given reasons that unless theaudit is done over again it is difficult to saywhether the allegations are 'mala fide' or not.This is the main reason for dismissing thepetition of complaint. Two things may be saidagainst this. The first is that the complainantshould then have been given an opportunityto prove that these were really 'mala fide'statements in the audit report by such mate-rials as might satisfy the learned Magistrate or an enquiring officer. Before his petition can be dismissed in this case he is entitled to this Opportunity. Secondly, the learned Magistrate did not, when the complaint was first filed before him, proceed to dismiss the application on this ground. On the other hand, he was of opinion that an enquiry was necessary. He sent the matter for enquiry to the Assistant Registrar of Co-operative Societies. It appears that the Assistant Registrar of Co-operative Societies asked for an explanation from Anil Chandra Banerji and then someone signing for the Assistant Registrar forwarded this explanation to the learned Magistrate which is said to be now the report of the Assistant Registrar. What the learned Magistrate should have done was to point out to the Assistant Registrar that he was to hold an enquiry and not merely act as a Post Office. If in the course of enquiry he considered it necessary to get the explanation or report of the accused on any matter as he has done, there is no law to prevent him from getting such explanation or report provided the accused is willing to give such explanation or report.
There are many very wide expressions in reported cases in enquiries under Section 202. An enquiry means that it is an enquiry 'prima facie' into the truth of the complaint--not an enquiry just to take down something which the complainant or some persons produced on his behalf may say. If to find out the truth the enquiring officer considers it desirable to get an explanation from the accused and the accused is willing to help him; there seems to be no reason whatsoever why that help also should not be availed of. By accused I mean the person complained against. It is the right of the person complained against not to be troubled till a Court has decided that he should be troubled by appearance in Court. If by following a procedure of getting an explanation to clear up facts from a person complained against anyone is prejudiced it is the accused who has the right not to be questioned till the proper time comes. What I have always failed to see is how the complainant in such a case can make a grievance of this if the accused has not considered it as prejudicial to him. The Court when it orders an enquiry 'prima facie' has not accepted the story of the complainant but wants the truth to be ascertained as far as possible at that stage to help the Court in arriving at a conclusion whether process should be issued or not and the person complained against put to the risk and costs of a criminal trial. If in trying to have proper light it is considered necessary to get things cleared up by the person complained against and the person complained against is willing to waive his right and render that help, I fail to see any reason in any of the decisions of any High Court on this subject why the person complained against should not be allowed, if he is willing to do so, to help the enquiring officer to ascertain the truth for the benefit of the Magistrate and for his own benefit also in saving him trouble and expense.
There is nothing to prevent this course, in any of the sections of the Criminal Procedure Code nor do I think that judicial legislation as has been attempted in some of the cases is in the interest of justice at all. It is really to prevent a person who may be innocent being harassed day after day in a prolonged trial by simply allowing him to help an enquiring officer to ascertain the truth with the least cost and risk at the initial stage. In any case, as the Code has not by express words or by necessary implication prohibited taking an explanation from the person complained against, and as no reported decision actually says that it is absolutely illegal but considers in particular cases such a course to have been improper, I cannot accept the contention that the Assistant Registrar was wrong in calling for an explanation of the accused. The learned Magistrate should have pointed out to the Assistant Registrar that an enquiry does not mean merely taking an explanation from the accused. The Assistant Registrar should also try to ascertain the truth from the complainant and give the complainant an opportunity to convince him of the truth of his allegations so that he may make a fair report of the whole thing to the Magistrate. The Magistrate should further have pointed out to the Assistant Registrar that the enquiry having been directed to be made by him should be made by himself. He cannot delegate that duty to someone else. He is acting under a delegated authority and it is the first principle of law that a delegated authority cannot be further delegated unless he has been given power to delegate such delegated authority.
3. In the present case, therefore, as the learned Magistrate considered an enquiry necessary and as there has not been at all a proper enquiry, the learned Magistrate will send back the matter for further enquiry to the Assistant Registrar or to the Registrar, if he thinks that the enquiry would be made better by a superior officer, and indicate what is necessary to be done by such authority. The complainant may show to the Registrar or the Assistant Registrar by having a proper audit made at his expense by some other auditor whether the allegations made against him are justified or not and he may also give such further proof of 'mala fides' as he may be advised to do.
4. As far as opposite parties Nos. 3 to 6 are concerned) Mr. Datta very fairly conceded that except allegations vague and worthless there is nothing against them on which step can be taken in a criminal Court. Therefore, the order of dismissal as far as opposite parties Nos. 3 to 6 are concerned will not be disturbed.
5. As far as opposite parties Nos. 1 and 2are concerned, the order of dismissal underSection 203 of the Code is set aside and the matteris sent back to the learned Magistrate for afurther enquiry in the light of this judgment.The Rule is thus disposed of.