1. In this matter one Anwar Nabi made a complaint before the District Magistrate of Howrah against three per-sons under Sections 474 and 204 read with Sections 109 and 114 of the Indian Penal Code on the 17th September last. It appears he had previously brought a civil suit against Bachu accused No. 1 in respect of the price of certain skins and his suit had been dismissed. His allegation in his complaint was that the present accused had kept hack the genuine books of account in that suit and had used in the defence of the same fabricated books. He therefore made this complaint and applied for a search warrant. A search warrant was issued and certain books seized; but on the 3rd October, the Magistrate after examining the complainant on oath and hearing the parties dismissed the complaint under Section 203, Cr. P.C. Anwar Nabi then moved the Sessions Judge against the order of dismissal and on the 24th November last the Sessions Judge after hearing Counsel set aside the order and remanded the case for further enquiry, holding that 'from the record it seems clear that there is a good prima facie case under Sections 204 and 474 I.P.C.'
2. The Magistrate on receipt of this order of remand did not summon the accused but after permitting both parties to examine certain books and hearing their Counsel again dismissed the case under Section 203 on 14th January, 1924. The Sessions Judge was moved again. He held that the delay in issuing process was unjustifiable and on 19th January on an ex parte application ordered further enquiry by some other Magistrate after summoning the accused. A rule was then obtained from this Court on the ground that this order was passed without jurisdiction.
3. It appears that on both occasions when the Magistrate was purporting to be holding an enquiry under Section 202, Cr. P.C. the accused were before him by pleader, though they had not been summoned and their arguments were heard-a procedure which has several times been condemned by this Court. Of. the case of Bhim Lal Saha v. Emperor (1913) 40 Cal. 444. The only point, however, before us is whether the Sessions Judge can when ordering a further enquiry in respect of a complaint which has been dealt with by the Magistrate under Section 202, Cr. P.C. direct that the accused be summoned, or whether he is restricted to only making an order for a further inquiry of the same nature as that which has been already made i.e., in this case a further inquiry under Section 202, Cr. P.C.
4. In this connection the law was laid down by the Chief Justice Sir Comer Petheram in the case of Haridhan Sanyal v. Saritulla (1888) 15 Cal. 603 (F.B.) as follows:
In cases under Sections 200 and 203 it would appear that if the Magistrate does not believe the complainant and thereupon without taking any further step dismisses the complaint, the revising officer may under Section 437 (now Section 436) direct that by way of further inquiry he shall cause an investigation to be made, or if one has been made which he considers insufficient or unsatisfactory or if he considers that the complainant has not been sufficiently examined, may order that the complainant be recalled and his examination continued. But, it is difficult to see how a further inquiry can be ordered in any but one of these three cases, as it is clear that the inquiry is preliminary to the issue of process and the next step to take, if the inquiry as far as collection of materials is complete is the issue of process'. This dictum and the decision in that case appear to me to be authority for holding that the Sessions Judge when he orders a further inquiry can only order an inquiry of the same nature as the Magistrate has already held. In the present case the Magistrate has only examined the complainant and heard arguments as to certain entries in certain books and this is not in my opinion a proper inquiry within the meaning of Section 202, Cr. P.C. But I do not hold that at this stage the Sessions Judge can direct the accused to be summoned; he can only order a full and proper inquiry under Section 202 according to law. I would therefore set aside the order of the Sessions Judge and remand the matter to him to consider again whether such further inquiry under Section 202 should be ordered so that the Magistrate may, after the collection of materials is complete, come to a finding whether process shall issue.
5. I agree.