(1) It appears that the opposite party, Maharam Din Missra, filed a petition of complaint before the Sub-divisional Magistrate of Bettiah, alleging that several persons including the two petitioners had committed different offences. The Sub-divisional Magistrate directed Mr. Munim, a Magistrate with first class powers, to hold an inquiry into the matter. Mr. Munim reported that no prima facie case had been made out. On considering this report, the Sub-divisional Magistrate dismissed the complaint under Section 203, Criminal P. C. An application under Section 436, Criminal P. C., for further inquiry was heard by the Additional Sessions Judge of Champaran. In his order dated 20-11-1952, the learned Additional Sessions Judge observed that the complainant had not been given an opportunity to examine two of his witnesses who were confined in Muzaffarpur jail. He then directed further inquiry to be made against the petitioners only, observing that there was no case against the other persons who had been accused by the complainant. The petitioners then moved this Court against the Additional Sessions Judge's order but their application was dismissed. When the orders of the Additional Sessions Judge and this Court were placed before the Sub-divisional Magistrate with a report of Mr. Munim that the complainant had filed a petition before him praying for being allowed an opportunity to examine two of his witnesses, he directed process to issue against the petitioners.
(2) The petitioners have filed this application against the order dated 19-1-1953, whereby the learned Sub-divisional Magistrate has directed process to issue against them. The prayer is that that order may be set aside. Mr. Basanta Chandra Ghosh, who has appeared before me on their behalf, has urged that the learned Sub-divisional Magistrate was bound to Hold further inquiry under Section 202, Criminal P. C., in compliance with the learned Additional Sessions Judge's order for further inquiry and that his action in issuing process against the petitioners without any further inquiry at all is illegal. In support of this contention, he has drawn my attention to the case of -- 'Radha Prasad Bhagat v. Emperor', AIR 1928 Pat 12 (A) and the case of -- 'Sitaram Tewari v. Kausilia', 29 Cri LJ 572 (Pat) (B). Both these cases were decided by Jwala Prasad, J. He held in these cases that a Magistrate, when directed to hold further inquiry under Section 436, Criminal P. C., could not at once summon the accused without holding further inquiry. In one of these cases, namely, the case of Radha Prasad Bhagat, he observed that "the effect of an order setting aside an order dismissing a complaint under Section 203 is to restore the case to the stage under Section 202". This case came up for consideration before a Division Bench of this Court in the case of --'Hema Singh v. Emperor', AIR 1929 Pat 644 (C). The Division Bench expressed the opinion that Radha Prasad Bhagat's case had been wrongly decided. Courtney Terrell, C.J., who was a member of the Bench, held that when directed to hold further inquiry under Section 436, Criminal P. C., a Magistrate is not confined to the holding of a further inquiry under Section 202 but he may issue process and hold a commitment inquiry as well. Dhavle, J. who was the other member of the Bench, observed that it was "impossible to restrict the 'further inquiry' of Section 436 to an inquiry under Section 202." He concluded his observations by saying:
"In my opinion, if I may say so with respect, the order for a further inquiry did not make it obligatory for the Sub-divisional Magistrate to proceed again under Section 202, and the Sub-divisional Magistrate not only had jurisdiction (even apart from the order for further inquiry) to proceed under Section 204, but was actually acting in compliance with the order when he summoned the petitioners."
In the case of -- 'Ramji Gujrati v. Emperor', AIR 1931 Pat 50 (D), the case of Hema Singh was referred to. Macpherson J. who decided that case quoted the observations made by Dhavle J. in Hema Singh's case and expressed his concurrence with them.
(3) Mr. Ghosh has attempted to distinguish Hema Singh's case as well as Ramji Gujrati's case. He has argued that a commitment inquiry had been held in Hema Singh's case after further inquiry had been decided by the Deputy Commissioner and all that was decided in that case was that it was not necessary to hold an inquiry under Section 202, Criminal P. C. but a commitment inquiry could also be held. It is true that a commitment inquiry was held in that case after further inquiry had been directed but the observations of both the Judges constituting the Bench make it perfectly clear that the Sub-Divisional Magistrate could issue process under Section 204, Criminal P. C. straightway when--further inquiry was directed by a Superior Court under Section 436 of that Code. Dhavle J. has left no room for doubt about the legal position by observing as follows :
"Relying on the observations of Jwala Prasad J. in 'Badha Prasad Bhagat v. Emperor (A)', Sir Ali Imam has argued that an inquiry under Section 202 was obligatory in the present case because it was necessary that the suspicion which arose in the mind of the Magistrate against the truth of the complaint and originally led to its dismissal be dispelled. But a further inquiry under Section 202 is not the only way to remove such suspicion, and a lower Court may often give up its doubts when a Superior Court has set aside an order of dismissal based on such doubts."
Mr. Ghosh has argued that Ramji Gujrati's case is distinguishable because, in that case, the District Magistrate who was moved for further inquiry under Section 436 against the dismissal of a complaint did not only set aside that order but himself took cognizance and directed the accused persons to be tried. Though the facts of that case were slightly different from those of the present case, Macpherson J., who decided that case, specifically considered the argument that the District Magistrate could not do more than direct a further inquiry of the same nature as had been made by the Subordinate Magistrate under Section 202 and, as I have already said, he agreed with the views expressed by Dhavle J. in Hema Singh's case.
(4) A slightly different question arose for consideration in the case of -- 'Udit Narayan Patwari v. Emperor', AIR 1938 Pat 369 (E). Both the Judges who constituted the Division Bench which decided that case, observed that the expression "further inquiry" has come to have a technical meaning and that it simply means reconsideration of the matter.
(5) It is clear from what I
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have said above that a Magistrate, when directed to hold further inquiry under Section 436, Criminal P. C. by a Superior Court, is not bound to hold further inquiry under Section 202. The matter comes back to him for reconsideration. He can, therefore, hold an inquiry or get an inquiry made under Section 202 or, if he considers it proper, he can issue process under Section 204 without any inquiry at all. As the learned Sub-Divisional Magistrate has, in this case, issued process against the petitioners without any inquiry after receiving the learned Additional Sessions Judge's order, I am unable to hold that he has acted illegally. There seems to be no reason, therefore, to set aside his order summoning the petitioners. The application is dismissed.