A.N. Banerjee, J.
1. This Rule is directed against an order dated 16-7-1975 passed by the Sub-Divisional Judicial Magistrate, Basirhat in a case under Sections 13/14 of the Foreigners Act. It appears that on 27-8-1974 three foreign nationals who had no passport or visa with them were arrested by the police on the allegations that on that day they were trying to cross over to Bangladesh with three gunny bags on their heads. They were arrested along with another and the aforesaid bags were found to contain biris with a sale memo dated 27-8-1974 for the aforesaid biris purported to have been issued by the petitioner No. 1 in favour of one Sunil Kumar Mukherjee. The petitioner No. 2 is said to be an employee of the petitioner No. 1. During investigation it transpired as per allegation of the prosecution that they were carrying an illegal business of sending the biris to Bangladesh. They were also made accused. Subsequently, charge-sheet was submitted. The three foreign nationals sent a petition from jail intimating the Magistrate that they would plead guilty. On their application charge under Section 14 of the Foreigners Act was framed against them. They pleaded guilty to the said charge and accordingly they were convicted and sentenced to various terms of imprisonment. In the meantime, Sunil Kumar Mukherjee filed a petition before the learned Magistrate claiming the seized biris. That petition was rejected. The case against the accused petitioners proceeded and 23-6-75 was the date fixed for consideration of the charge against them. The learned Magistrate heard the lawyers of both parties in part and fixed 5-7-1975 for further hearing regarding charge. On that day a petition was filed by the prosecution with a prayer to make Sunil Kumar Mukherjee an accused in the case. Pursuant to such petition the learned Magistrate by his impugned order dated 16-7-1975-directed further investigation by the police on the line as indicated by him. This order was purported to be under Sub-section (8) of Section 173 of the Code of Criminal Procedure, 1973. It is as against such an order as passed by the learned Magistrate the present Rule was obtained.
2. Mr. Chintaharan Roy, the learned Advocate appearing for the accused petitioner with Mr. Barindranath Roy, contended that the learned Magistrate acted illegally and without jurisdiction in directing the police to make further investigation into the case in the light of the observations and the findings made by him. Mr. Roy contended that Sub-section (8) of Section 173 of the new Code did not empower the Magistrate to direct further investigation in a case and more so in a manner as has been done in the present case by the learned Magistrate.
3. Mr. Rashbehari Mahato, the learned Advocate for the State, supported the order of the learned Magistrate and submitted that Sub-section (8) of Section 173 of the Code gave power to the learned Magistrate.
4. Having heard the learned advocates of the respective parties and on a consideration of the materials before me I am led to the view that the impugned order must be set aside as it is unwarranted and without Jurisdiction. It has already been pointed out that three of the accused persons had already been convicted and sentenced in this case. The learned Magistrate had accepted the report submitted by the police under Section 173(2) of the Code of the Criminal Procedure. No prayer is or was ever made by the police for further investigation into the case. It was only at the time of the consideration of the charge against the accused petitioners and another the learned Magistrate thought it fit to direct the police to make further investigation into the case, Evidently the learned Magistrate was not satisfied on the materials on record that a charge of conspiracy was warranted against the accused persons or that issue of a process against Sunil Kumar Mukherjee was necessary. Sub-section (8) of Section 173 of the new Code which is a new one has not been inserted for the purpose of filling up lacuna if any in the prosecution case and for that purpose to empower the Magistrate to order for further investigation by the police. It has already been pointed out that the learned Magistrate accepted the report submitted by the police under Sub-section (2) of Section 173 of the Code. Having done so and after having proceeded with the trial of the case he had no power under Sub-section (8) of Section 173 of the Code to direct the police to make further investigation. It is also rather strange to find that in the present case the learned Magistrate before whom the matter is sub judice thought it fit to make his findings touching upon the merits of the case and that also before framing of any charge against the accused persons. In all such circumstances the impugned order cannot be sustained and must be set aside. Having regard to the nature of the order and the findings made therein by the learned Sub-Divisional Judicial Magistrate it is considered to be fit and proper that the case should be heard by a Magistrate other than the one who passed the impugned order.
5. In the result, the impugned order is set aside and the case is sent back for disposal in accordance with the provisions of law from the stage it reached prior to the passing of the impugned order by a Magistrate other than the one who passed the impugned order.
6. Let the records go down as early as possible.