P L D 1961 Dacca 533 (PLP)

MURSHED, J.‑This is a Reference under section 438 of the Code of Criminal Procedure made by Mr. K. Rahman Khan, Additional Sessions Judge of Dacca, and it arises out of the following circumstances.

2. A complaint was filed in the Court of the Sub‑divisional Officer against one Mst. Zaharat Ara Khanum alleging that she was guilty of an offence under section 406 of the Pakistan Penal Code. The learned Sub‑divisional Magistrate examined the complainant on oath, and thereafter, under the provisions of section 202 of the Code of Criminal Procedure directed an enquiry and report into the matter by a Magistrate of Second Class. The said Magistrate was not available, and thereupon the Additional District Magistrate of Dacca withdrew the case to his file, and ordered an enquiry to he made by Mr. M. A. Habibullah Chowdhury, after examining some witnesses submitted a report to the Additional District Magistrate. The Additional District Magistrate on receipt of the report transferred the case to the Sub‑divisional Magistrate for its disposal. The learned Sub‑divisional Magistrate was not satisfied with the report which was submitted by Mr. M. A. Habibullah Cowdhury. He, thereupon, ordered a further enquiry to be made by Mr. A. Wahab, another Magistrate of 2nd Class. Thereupon, on an application filed by the said Zaharat Ara Khanum, the said. learned Additional Sessions Judge has made this Reference recommending that the order passed by the learned Sub‑divisional Magistrate directing a further enquiry to be made by Mr. A. Wahab be set aside, as the said order was illegal. The learned Additional Sessions Judge is of opinion that once an enquiry is directed and a report has been received the Magistrate is not competent to direct a further enquiry. He observed as follows "From the above facts it is clear that Mr. Habibullah Chowdhury, Magistrate, 2nd Class, held judicial enquiry of the ease under section 202 of the Cr. P. C. as ordered by the learned Additional District Magistrate, and he found that a prima facie case has been made out against the accused, and submitted a report to the learned Additional District Magistrate, to summon the accused under section 406, P. P. C. The learned Additional District Magistrate after perusing, the report sent the case for Disposal to the learned Sub‑divisional Officer. At this stage the learned Sub‑divisional Officer has got no jurisdiction to ask for further judicial enquiry by another Magistrate, namely, Mr. A. Wahab, Magistrate, 2nd Class, under section 202 of the Cr. P. C. His next step was to proceed with the case under section 204 of the Cr. P. C. (if he was not inclined to dismiss the complaint under section 203, Cr. P. C.) "the learned Additional Sessions Judge has relied upon certain observations made in the judgment that was delivered by a Division Bench of the Calcutta High Court in the case of Hari Charan Gorait v. Girish Chandra Sadhu Khan (I L R 38 Cal. 68). The aforesaid observations are as follows If, having first examined the complainant under the provisions of section 200 of the Code of Criminal Procedure, the Magistrate was not satisfied that the case was one in which process should issue, he was competent, under section 202, either to hold an enquiry, and decide the matter upon evidence taken by himself, or to direct the making of `local investigation' by some subordinate officer. Having directed such an investigation by a Police Officer, and having considered the result thereof, it was still open to him, in our opinion, if dissatisfied with the materials obtained, to direct a further local investigation or personally to make further enquiry and take evidence in the case. But if he thought proper to refer the case to some other Magistrate for an enquiry, other than a local investigation, he should, in our opinion,, have transferred the case under section 192 of the Criminal Procedure Code to such Magistrate not for report but for disposal . Mr. Abdul Aziz, who has, appeared before me to oppose this Reference, has contended that the learned Additional Sessions Judge has lost sight of the amendment to section 202 which has been made by an Act in 1923. Mr. Aziz has submitted that the case of Hari Charan Gorait v. Girish Chandra Sadhu khan, cited above, was decided on the basis of the provisions of section 202 of the Criminal Procedure Code prior to its amendment in 1923. According to the learned Advocate the aforesaid case is an authority for the proposition that if a Magistrate who directed an enquiry under section 202 was dissatisfied with the result of the enquiry he could make a further enquiry or direct a further local investigation into the matter. It is contended that since the amendment of the said section in 1923, the said Magistrate can direct a second enquiry by another Magistrate. The relevant portion of section 202 of the Code of Criminal Procedure prior to its amendment reads as follows "If the Chief Presidency Magistrate or any other Presidency Magistrate . . . . . . is not satisfied as to the truth of com plainant of an offence of which he is authorised to take cognizance he may, when the complainant has been examined, record his reasons and may then postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case himself or direct a previous local investigation to be made by any officer subordinate to such Magistrate, or by a Police Officer, or by such other person, not being a Magistrate or Police Officer, as he thinks fit, for the purpose of ascertaining the truth or falsehood of complaint." The said section stands amended in 1923, reads as follows "Any Magistrate on receipt 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 seasons 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 Magistrate other than a Magistrate of the Third Class, direct an inquiry 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 falsehood of the complaint." There is substance in the contention that prior to its amendment in 1923 the said section 202 of the Code of Criminal Procedure provided that the Magistrate could either make the enquiry himself or direct a local investigation by somebody else. Under the amended section 202 the Magistrate can either make an enquiry into the case himself or direct such enquiry to be made by another Magistrate Subordinate to him or by some other person. In my opinion the case of Hari Charan Gorait v. Girish Chandra Sadhukhan lends support to the proposition that, if a Magistrate is dissatisfied with the result of an investigation, he can direct a further investigation.' The same principle may be applied, mutatis mutandis, to the amended section 202 of the Code of Criminal Procedure. There seems to be no bar preventing a Magistrate from directing a second enquiry to be made if he is dissatisfied with the report submitted as a result of the enquiry which has already been made. I think that the contention o Mr. Aziz must be upheld. Under the terms of the amende section 202 of the Code of Criminal Procedure, a Magistrate is competent to direct another Magistrate Subordinate to him to matte a further enquiry if he is not satisfied with the result of a previous enquiry. There is nothing in the terms of the amended section 202 which would prevent a further enquiry.

3. Furthermore, I would like to observe that the learned Additional Sessions Judge is definitely wrong in thinking that the matter that was transferred to the Sub‑divisional Officer by the Additional District Magistrate, was merely to decide whether steps should be taken under section 203 ‑or under section 204 of the Code of Criminal Procedure (see Mahabir Singh and another v. Giribala Dassi ; Santakh Raj Singh Sardar Gopal Singh v. Gahwar Khan Sultan Khan. The Additional District Magistrate could not have transferred the case to the Sub‑divisional Officer merely to decide whether steps should be taken under section 203 or under section 204 of the Code. Such a course would be illegal according to the decisions cited above. The entire case was transferred to the Sub‑divisional Officer. In these circumstances this Reference is rejected. K. B. A. Reference rejected.