P L D 1961 Dacca 747 (PLP)

This Rule issued at the instance of the accused‑petitioner Haji Abdus Samad Sowdagar, is directed against an order whereby the learned Magistrate concerned has ordered a judicial enquiry to be held into the matter by another Magistrate, viz. Mr. A. M. Chowdhury, Magistrate, 3rd Class, Chittagong. The order complained of runs thus "Perused Police report. Heard the Naraji petition against the Police report. Complainant to prove his case in Court to Mr. A. M. Chowdhury, Magistrate, 3rd Class, for favour of holding judicial enquiry and report by 30‑8‑1960." The circumstances out of which these proceedings arise are briefly as follows: On 6‑2‑58 a riotous mob is said to have stated indulging in acts of rowdyism and vandalism and set fire to a certain Madrasah which had a library containing valuable books worth about Rs. 2 lakhs. In course of this occurrence the Officer‑in‑charge of the local police station arrived with some force, and being unsuccessful in pacifying the mob otherwise, was forced to open fire, as a result of which some people died. On the same day the Officer‑in‑charge himself started a case by lodging a first information report and commenced usual investi gations. Subsequently on 12‑2‑58 one Tamju Mea filed a petition of complaint before the learned Sub‑Divisional Magistrate charging the petitioner and some others with the murder of his brother. The learned Sub‑Divisional Magistrate examined him on oath and passed the following order:‑ "Examined the complainant on S. A. This is the Patiya inci dent which took place on 6‑2‑1958 whioh is being investigated by the police. Send this case also to Mr. N. Haq, D. S. P., D. I. B., for investigation and report, to 4‑3‑1958". Three days later, one Noor Ahmed also filed a similar petition of complaint against the same set of accused charging them with murder of his brother. After examining the com plainant on S. A. as usual, the learned Magistrate passed his order in these terms : "Examined the complainant on S. A., S. P. Chittagong will please hold the investigation and get the case investigated by any responsible Officer and take necessary action after register ing a case." At the same time he also passed his following order in the other case filed by Tamju Mea: "The order of 12‑2‑1958 asking Mr. N. Haq to hold the investigation was not possibly correct from the departmental point of view. Request S. P. to hold the investigation himself or get the case investigated by a responsible Officer and take necessary action after registering a case." In pursuance of the above orders the S. P. directed the Officer‑in‑charge, Patiya, to register a case and entrusted its investigation to one S. I. Adbus Sattar, under the supervision of the Circle Inspector concerned and, in due course, charge sheet was submitted against the petitioner and his other co‑accused and the case was eventually transferred to the Court of Mr. K. S. M. S. Huq Magistrate, 1st Class for enquiry under Chapter XVIII of the Code of Criminal Procedure. The accused‑petitioner thereafter appears to have taken objection to the legality of the proceedings thus started and eventually came up to the High Court in revision wherein he succeed in having the charge sheet quashed. In the revision case referred to above, which was heard by Rahman, J., the afore‑cited orders, dated 12‑2‑51 and 15‑2‑58 passed by the learned Sub‑Divisional Magistrate, were amended by his Lordship as follows:‑ "Examined the complainant on solemn affirmation. To O. C. Patiya for enquiry and report." It was further directed that the Officer‑in‑charge would there after submit a report and the Magistrate would then proceed in accordance with the law and dispose of the complaint before him either under section 203 or 204 of the Code of Criminal Proce dure. The matter thus went back to the Court of first instance whereafter the petitioner again started a proceeding for transfer of the case from the file of the learned Magistrate named above. This was also eventually allowed by this Court and, on receipt of the order of this Court allowing this prayer for transfer, the learned Additional District Magistrate transferred the cases to Mr. S. Ahmed, Magistrate, Ist Class for disposal. Mr. S. Ahmed thereafter directed the Officer‑in‑charge, Patiya in pursuance of the order of this Court, to hold an enquiry and submit his report which was ultimately received on 22‑7‑

60. The learned Magis trate, instead of passing any order on that date, directed this to be put up on 25‑7‑

60. By that date a Naraji petition appears to have been filed against the above‑mentioned report submitted by the Officer‑in‑charge concerned and the learned Magistrate fixed another date for consideration of the report of the O. C. as well as the Naraji petition. Ultimately, on 9‑8‑60 he passed the order complained of which has already been quoted above and against which the present Rule has been obtained. Mr. Farid Ahmed, Advocate, has appeared on behalf of the accused‑petitioner while Mr. A. M. Sayam, Advocate, with Mr. Daliluddin Ahmed, Advocate, represented the complainant with the leave of the Court. Mr. Farid Ahmed has contended that the learned Magistrate acted illegally in not considering the report of the Officer‑in charge on 22‑7‑60 which the date fixed for the purpose. As has already been stated above, the learned Magistrate postponed the consideration of the police report received by him to another date specifically fixed by him and in doing so he does not appear to have acted either without jurisdiction or illegally. He was fully competent to postpone the hearing and consideration of a matter according to his convenience and, as such, the grievance made in this behalf appears to have no substance. As already stated above, he ultimately directed judicial enquiry by another Magistrate, viz. Mr. A. M. Chowdhury, Magistrate, 3rd Class after having as the Order sheet shows, perused the police report and heard the Naraji petition against the police report. Evidently the police report was not accepted by the learned Magistrate and he must have, accordingly, directed a judicial enquiry for the purpose of giving the aggrieved complainants opportunity to prove their case. It is true that the learned Magistrate has not specifi cally stated in his order that he could not rely upon or rejec ted the police report but that is clearly implied. That is exactly what the learned Magistrate has actually stated in his explanation. The said explanation runs, inter alia, as follows:‑ "O. C. reported that there is no evidence against the accused -persons. As against the report of the O. C, the complainants filed a Naraji petition alleging that the E. O. did not examine the complainants and their witnesses. On hearing the Naraji petition a judicial enquiry was deemed necessary for giving opportunity to the complainants to prove their cases before a Magistrate. The police report finding that there is no evidence in the cases cannot be accepted as truth as there are allegations against the report of the E. O." It is unfortunate that the learned Magistrate did not make his order self‑contained or explicit as he could have easily done by stating the reason he has later furnished in his explanation, Nevertheless, there can be no manner of doubt or mistake, as already observed above that the police report was not accepted in view of the Naraji petition filed and it was accordingly, that the learned Magistrate deemed it necessary to afford the complainants an opportunity of proving their cases before a Magistrate. The next contention urged on behalf of the accused peti tioner is that, having received the case on transfer under section 192 of the Code of Criminal Procedure, the learned Magis trate i.e., Mr. S. Ahmed, was not competent to direct any further investigation under section 202 of the said Code. In this behalf the learned Advocate for the petitioner has placed his reliance upon the case of Sait Katruurin Chand and another v. Addagalla Vaikunam (A I R 1942 Mad. 426), wherein it has been held :‑ "Section 202 makes express provisions for action under that section in cases transferred to a Magistrate under section 192 but if that stage has already been passed by the Magistrate who took cognizance of the case, then there cannot be any enquiry under section

202. The question whether the trans feree Magistrate has jurisdiction or not to order an investiga tion under section 202 depends upon whether the transferring Magistrate had or had not passed beyond that stage when he transferred the case to the transferee Magistrate. The mere fact that the Magistrate transferred the case is itself no indication of the stage which the Magistrate taking cognizance had reached; because under section 200 he can transfer the case before the sworn statement is taken." It follows that the crucial factor is not the factum of the transfer but the stage at which the transfer is made and as such where as in the present case, the case is pending at the stage contemplated by section 202 of the Code of Criminal Pro cedure itself, the transferee Magistrate is competent, as expressly laid down in the said section, either to hold an enquiry himself or cause an enquiry to be made under the said section. As has already been made clear above, this Court in quashing the commitment order amended the relevant orders of the learned Magistrate with a further direction that the Officer‑in‑charge would enquire and report whereafter the learned Magistrate would proceed in accordance with the law and dispose of the complaint before him either under section 203 or 204 of the. Code of Criminal Procedure. Obviously the case was pending at the stage of section 202 of the said Code and it was also made explicit in the order of this Court that the Magistrate was to proceed in accordance with law after receipt of the report of the Officer‑in‑charge. Section 202, as already stated above, clearly empowers a transferee Magistrate either to hold an enquiry him self or td order an enquiry by some one else, provided the case has not already passed the stage contemplated by section 202 of the Code of Criminal Procedure. In the circumstances, the learned Magistrate in this case was perfectly justified in terms of section 202 of the said Code to order further enquiry if he so deemed it necessary. Thus appears to be no force or substance in the contention urged by Mr. Farid Ahmed that having received the case on transfer under section 192 of the Code of Criminal Procedure the learned Magistrate was not competent to order any investigation under section 202 of the said Code. The last contention urged on behalf of the accused‑petitioner is that Mr. S. Ahmed, Magistrate, 1st Class, had no jurisdiction to ask Mr. A. M. Chowdhury, Magistrate, 3rd Class to hold the judicial enquiry in this case inasmuch as the latter is not subordinate to him within the meaning of section 17 of the Code of Criminal Procedure. Subsection (1) of section 202 provides: "Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under section 192, may if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate, other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him or by a police Officer, or by such other persons as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. Provided that save where the complaint has been made by a Court, no such direction shall be made unless. the com plainant has been examined on oath under the provisions of section 200." According to the above provisions the transferee Magistrate, if he is one other than a Magistrate of the 3rd Class, is no doubt authorised to direct an enquiry or investigation to be made by any Magistrate subordinate to him or by a Police Officer or by such other person as he thinks fit for the purpose of ascertaining the truth or falsity of the complaint. So, (sic), if the enquiry is proposed to be entrusted to a Magistrate, such Magistrate must be one who is subordinate to the Magistrate directing the enquiry. In the present instance Mr. A. M. Chowdhury, Magistrate, 3rd Class, is not subordinate to Mr. S. Ahmed Magistrate, 1st Class within the meaning of section 17 of the Code of Criminal Pro cedure. So the order of Mr. S. Ahmed directing Mr. A. M. Chowdhury, Magistrate 3rd Class to hold the enquiry cannot be supported in law and this is, in fact, conceded by Mr. A. S. Sayam appearing on behalf of complainants as well. In case Mr. S. Ahmed was not satisfied with the police report and con sidered further enquiry necessary, the only course open to him was either to hold the enquiry himself or to direct some Police Officer or such other person as thought fit to hold the same. Under the section he was not competent to entrust the enquiry to a Magistrate who is not subordinate to him. In the result, the Rule is made absolute, the order complained of is set aside and the case sent back to the learned Magistrate concerned with the direction that he shall either hold the enquiry himself or cause the same to be made by some one else within the meaning of subsection (1) of section 202 of the Code of Criminal Procedure. K. B. A. Rule made absolute.