P L D 1962 Dacca 221 (PLP)

SALAHUDDIN AHMED, J.‑This Rule was issued at the instance of the complainant petitioner calling upon the District Magistrate of Khulna and the opposite‑parties to show cause why the order of discharge complained of 9n the petition should not be set aside on grounds Nos. 1 and 4 of the petition.

2. It appears that Mr. M. Haque, Magistrate, 1st Class, Satkhira, who held the enquiry under Chapter XVIII of the Code of Criminal Procedure, on a consideration of the evidence held that the prosecution case was extremely doubtful and was not warranted by facts and evidence on record, and in that view of the matter, refused to commit the accused persons for trial by the Court of Sessions and discharged them under section 209 of the Code of Criminal Procedure. The learned Magistrate in his order dated the 14th of March 1960, has referred to certain matters, to wit, the case diary of the present case, namely, G. R. Case No. 658 of 1959 as well as the case diary of the counter case, namely, G. R. Case No. 609 of 1959, which are clearly inadmissible in evidence and should never have been taken into consideration by him. Basing his finding on these materials, the learned Magistrate came to the finding that Plot No. 397, i.e. the disputed land on which, according to the prosecution case, the occurrence took place, was not the place of occurrence.

3. It may be mentioned that the same Magistrate held enquiry in the counter‑case, namely, G. R. Case No. 609 of 1959 arising out of the same occurrence and committed the accused persons of the counter‑case to the Court of Sessions. Against this order of commitment, Hazeruddin Gazi, an accused in G. R. Case No. 609 of 1959 moved the Sessions Judge of Khulna and the Sessions Judge of Khulna has referred the case to the High Court under section 438 of the Code of Criminal Procedure and recommended that the order of commitment passed in G. R. Case No. 609 of 1959 be quashed and the case be sent back to the learned Magistrate for proceeding with the enquiry from a certain stage. This reference is the subject‑matter of Criminal Reference No. 228 of 1960, which we shall deal with presently in a separate judgment. 4. 1t is interesting to state that the same learned Sessions Judge who made the aforesaid reference, summarily dismissed the application of the petitioner in the present case, namely, Kafiluddin Gazi, praying for setting aside the order of discharge passed by the learned Magistrate. The ground mentioned by the learned Sessions Judge for dismissal of the application was that the self same Magistrate who held the enquiry had committed the accused persons of the counter‑case to the Court of Sessions and had discharged the accused of the present case, namely, G. R. Case No. 658 of 1959.

5. We ourselves have looked into the evidence and we are of opinion that the learned Magistrate has travelled beyond his jurisdiction in weighing the evidence in the manner he has done in the present case. It appears from his order that he tried to C weigh the evidence for the purpose of determining whether they are good for conviction of the accused and not for the purpose of seeing whether a prima facie case has been made out against the accused and that there is evidence to go to the Jury.

6. In the result, therefore, we make the Rule absolute and set aside the order of the Magistrate dated the 14th of March 1960, and direct that a fresh enquiry be held according to law by a competent Magistrate other than the Magistrate concerned. We further direct that this case as well as G. R. Case No. 609 of 1959 which is the subject‑matter of Criminal Reference No. 228 of 1960, be heard by one and the same Magistrate. We may mention here that we are going to accept the reference and to order a fresh enquiry.

7. This is a reference made by Mr. G. R. Chowdhury, Sessions Judge, Khulna, under section 438 of the Code of Criminal Procedure recommending that the order of Mr. M. Haque, Magistrate, 1st Class, Satkhira, dated the 15th of March 1960, passed in G. R. Case No. 609 of 1959 be quashed and the case be sent back for proceeding with the enquiry from the stage of calling for list of witnesses for the defence under subsection (1) of section 211 of the Code of Criminal Procedure and for disposal of the case according to law.

8. This reference arises out of the occurrence which took place on the 3rd of July 1959, in which two persons were killed. This occurrence gave rise to two cases one is G. R. Case No. 609 of 1959 which is the subject‑matter of Criminal Reference No. 228 of 1960 and the other is G. R. Case No. 658 of 1959 which is the subject‑matter of the Criminal Revision Case No. 384 of 1960 which we have just now disposed of.

9. It appears from the Magistrate's order that the learned Magistrate did not comply with the provisions of sections 211 and 212 of the Code of Criminal Procedure, which are mandatory in nature. It does not appear from the Magistrate's order‑sheet that after framing the charge against the accused persons, he required them at once to give orally or In writing a list of witnesses they wished to summon to give evidence on such trial: It has been held in several cases among which may be mentioned those reported in Sona Mia and others v. The State (P L D 1960 Dacca 396) and Atar All Shah and another v. Reazuddin ((1957) 9 D L R 69) that failure to comply with the provisions of sections 211 and 212 of the Code of Criminal Procedure vitally affects the trial and is not curable under the provisions of section 537 of the Code of Criminal Procedure.

10. The order of the Magistrate further shows that he considered the case diary of this case as well as the evidence of the other case, namely, G. R. Case No. 658 of 1959 for the purpose of arriving at his decision. This he could not do under the law. For the aforesaid reasons, we accept the reference, set aside the order of the Magistrate dated the 15th of March 1960, and direct that an enquiry be held afresh according to law by a competent Magistrate other than the Magistrate concerned. We further direct that this case be heard by the same Magistrate who will hold the enquiry in G. R. Case No. 658 of 1959 which is the subject‑matter of Criminal Revision Case No. 384 of 1960. KHAN, J.‑I agree. S. B.