1. In this case the complaint of the complainant was dismissed tinder Section 203, Criminal Procedure Code. It was dismissed after caving the accused an opportunity of being heard. The learned Sessions Judge on being moved by the complainant has, however, set aside the order of dismissal and directed a further enquiry. The point which is now urged by Mr. Mukherjee is that the order directing a further enquiry should not, in the circumstances of this particular case, have been made without giving the accused an opportunity of being heard.
2. The facts to which our attention has been drawn by Mr. Mukherjee in this case are that the tank which is the subject-matter of dispute was recorded in the Record of Rights as appertaining to the non-occupancy-holding of the complainant under the accused and that it was rent-free. The Magistrate who dismissed the complaint came to the conclusion that the accused honestly believed that he was entitled to a kabuliyat from the complainant undertaking to pay rent in respect of the tank or if the kabuliyat was not forthcoming, he was entitled to take fish out of the tank and that, in the circumstances disclosed, the matter was more or less of a civil nature. The learned Sessions Judge has proceeded to a certain extent upon the khatian which was prepared under the provisions of Chapter X of the Bengal Tenancy Act. We do not desire to express any opinion on the facts of the case nor on the merits of the dispute between the parties. We are satisfied that this is one of those cases in which the accused should have been given an opportunity of being heard, (he having been allowed to be present from the very commencement of the proceedings at the instance of the complainant) before the learned Sessions Judge at the hearing of the application under Section 437, Criminal Procedure Code. Our attention has been rightly drawn by Mr. Sanyal to the language of the decision of a Full Bench in In the matter of Hart Dass Sanyal 15 C. 608 : 13 Ind. Jur. 55 : 7 Ind. Dec. (N.S.) 989. We do not desire to depart in any way from the principle laid down in the Full Bench decision but the words used by Mr. Justice Wilson and Mr. Justice Prinsep in delivering the judgments of the Full Bench case do not imply that the discretion of the Magistrate or Sessions Judge is in all cases fettered. As has been stated above, in the circumstances of this particular case, we have come to the conclusion that the accused should have been given an opportunity of being represented before the learned Sessions Judge.
3. In this view of the matter, we set aside the order of the Sessions Judge of Chittagong dated the 22nd September 1922 and direct that the petition of the complainant under Section 437, Criminal Procedure Code be re-heard by him after giving notice to the accused.
4. The Rule is made absolute in these terms.