1. This is a Rule calling upon the District Magistrate of Noakhali to show cause why the order, under Section 476 of the Criminal Procedure Code, directing the prosecution of the 1st petitioner under Sections 211, 193 and 471 of the Indian Penal Code and of the 2nd and 3rd petitioners for offences falling under Sections 193, 465 or 471 of the Indian Penal Code should not be set aside.
2. It appears that the first petitioner, Chowdnuri Meah, lodged a complaint charging two persona, Abdul Rahaman and Fazlar Rahaman, with offences under Sections 467 and 468 of the Indian Penal Code in respect of a certain bond. An enquiry was held in the matter by a Deputy Magistrate who discharged the two accused, and by the order which is now in question directed the persecution of the petitioners for the offences I have mentioned. The order of discharge came before the Sessions Judge, Mr. S.P. Bakshi, who set it aside and directed a further enquiry. The case then came before another Daputy Magistrate, who committed Abdul Rahaman and Fazlar Rahaman to the Sessions Court for trial. In the result, Abdul Rahaman was tried by the Sessions Judge of Noakhali sitting with two Assessors on charges framed under Section 467 read with Section 109 and Sections 471 and 420 of the Indian Penal Code. The Assessors seem to have been of opinion that the case presented by the petitioner, Chowdhuri Neth, was false. The learned Sessions Judge, Mr. P.C. De, recorded a judgment much of which may be regarded as favouring the same view. He did not, however, find expressly that the case was false. He contented himself with saying that as against Abdul Rahaman the case brought by Chowdhuri Meah was a reasonably doubtful one and he acquitted Abdul Rahaman on that footing. Meanwhile, the proceedings initiated by the order of the Deputy Magistrate under Section 476 of the Criminal Procedure Code had been in abeyance. When Abdul Rahaman was acquitted by the Sessions Court, those proceedings were resuscitated. Upon that the petitioner applied to the Sessions Judge, Mr. P.C. De, to refer the order made under Section 476 to this Court for the purpose of having it quashed. By a considered order, the learned Sessions Judge refused to accede to that application.
3. The petitioner then moved this Court and obtained this Rule. It will be observed that the Sessions Judge who tried the case against Abdul Rahaman in the Court of Session was also the Judge who refused to refer the order under Section 476 to this Court. The only circumstance which disposes us to interfere is the fact that the order under Section 476 was made on the 7th November 1917, more than a year ago. It was made at a time when the evidence had not been so fully brought before the Courts, as it afterwards was. Regard being had to what subsequently happened, we are of opinion that if proceedings are to be taken against the petitioners, they should be initiated afresh.
4. The order we make is this: The original order under Section 476 will be set aside, but at the same time will be open to the District Magistrate to move the Sessions Judge himself to make an order under Section 476. It will also be open to the Sessions Judge, if he is moved under Section 195 for sanction to prosecute the petitioners, to accord such sanction.
5. This Rule is made absolute to the extent we have indicated.