1. It clear that there have been great irregularities in the conduct of this case. The complaint was made on the 28th February, 1911, by one Dr. Sandyal against one Kunjeswar Misra for having fraudulently used a forged cheque in his name. The case was adjourned from time to time, for what, reason we know not, but the complainant was not examined until the 28th April 1911, and according to law after the examination of the complainant on oath, the Magistrate was bound to dismiss the complaint at once, or to elect to hold inquiry under Section 202, Criminal Procedure Code, before issuing process.
2. It appears from the facts that he adjourned the case till the 26th May 1911, that he elected to do the latter and it was, therefore, his duty to impress upon the complainant that he was bound to produce his witnesses on the 26th May and he should then, if no witness were produced, have dismissed the complaint upon his disbelief of the complainant's statement. But he does nothing of the kind. He proceeds to make a detailed investigation and to hear the accused who entirely without process and apparently without any reason had appeared in Court by a Solicitor, he made inquiry from his Solicitor and looked into the papers which had been files by the defence before the Police; and as the result of this exparte inquiry he dismissed the complaint not on the ground that the complainant was unable to produce any witness.
3. We, therefore, think that the case must go back to the Chief Presidency Magistrate to give Dr. Sandyal an opportunity to prove his case and produce his witnesses, and if he does not produce any witnesses then this case may be dismissed upon that ground.
4. The Rule is accordingly made absolute. The records will be returned to the lower Court.