1971 P Cr (PLP)

ABDUL HAKIM, J.‑This Rule is directed against an order dated 15‑12‑67 passed by Mr. B. Biswas, Sub‑Divisional Magistrate, Noakhali Sadar (South) in C. R. Case No. 588 of 1967 summoning the accused‑petitioner and two others udder section 193, P. P. C. The short facts are that one Afia Khatun lodged a complaint before the Sub‑Divisional Magistrate, Noakhali, Sadar, alleging that the accused‑petitioner and two others went to her house on the night following 19‑3‑67 during the absence of her husband and kept a gun and other materials in her dwelling house saying that they would remove the said materials shortly afterwards. They did not turn up to take back the materials and on the following morning the incrimi nating articles were recovered by the police from her house. The Sub‑Divisional Magistrate, Noakhali, sent the matter to Mr. S. S. Nath, Magistrate, 2nd Class, Noakhali for holding a judicial enquiry who eventually, submitted a report charac terising the allegations made in the petition of complaint as false. On receipt of the report of the enquiring Magistrate, the learned Sub-Divisional Magistrate dismissed the complaint under section 203 of the Code of Criminal Procedure. The complainant moved the Sessions Judge, Noakhali, against the said order of dismissal of the complaint and the learned Sessions Judge exercising power under section 436, Cr. P. C. set aside the above order of dismissal and directed a further enquiry into the matter in accordance with law. The matter then came back to the Sub‑Divisional Magistrate, Noakhali, Sadar (South) and the learned Magistrate on perusing the relevant papers and report of the enquiring Magistrate issued summons against the accused‑petitioner any two others by his order dated 15‑12‑

67. The accused‑petitioner challenged the propriety and legality of the above order before die Sessions Judge, Noakhah, but the learned Sessions Judge rejected the Motion. The petitioner then moved this Court and obtained the present Rule. Mr. Mirza Abdul Matin, learned Advocate far the peti tioner has urged before us that the learned Sessions Judge having set aside the order of dismissal of the complaint and directed a further enquiry into the matter, the learned Magistrate erred in law in summoning the accused and pro ceeding with the trial without taking further evidence in the matter or without reconsidering the evidence already taken during the first enquiry. His grievance is that a further enquiry having been directed by the learned Sessions Judge it was incumbent upon the learned Magistrate to further enquiry into the allegations and take additional evidence before issuing process against the accused. The point raised above is a fine point of law and it has been considered in numerous earlier decisions: There are divergent views on the point. The learned Sessions Judge has set aside the order of dismissal of the ‑complaint. Consequent upon the order of the learned Sessions Judge the matter has come back to the Sub‑Divisional Magistrate with a direction for further enquiry. It is now for the Magistrate to decide how he shall carry out the direction of the superior Court. No direction or instruction can lawfully be given as to the manner in which the lower Court should conduct the enquiry. The point for con sideration before the Magistrate at this stage is whether it is a fit case for issuance of process against the accused. The discretion in this respect lies absolutely on the Magistrate. The learned Magistrate shall, however, exercise his power in that behalf according to law. The order of the learned Sessions Judge has, no doubt, restored the matter to a position prior to the order of dismissal of the complaint. But the only question at this stage before the Magistrate being "whether there are prima facie materials for proceeding against the accused", the direc tion for further enquiry here does not necessarily mean that the learned Magistrate should hold a fresh or further enquiry within the meaning of section 202, Cr. P. C. The further enquiry does not necessarily mean the recording of additional evidence. How the direction of the superior Court should be followed or how the Magistrate should be satisfied as to the truth of the allegations, it is for him to decide. He might be satisfied from the materials already on record or further materials brought on record. It is not always necessary that for his satisfaction a fresh or further judicial enquiry should bb conducted before issuing process against the accused, but in proper circumstances it would be fair to procure some new materials or take some additional evidence in that behalf to secure the ends of justice. The order by a superior Court to an inferior Court to hold further enquiry into a complaint which has been dismis sed under section 203, after a complete enquiry under sec tion 202, has acquired what may be called a technical meaning. It simply means reconsideration of the matter. In some case reconsideration might require summoning of more witnesses, looking into more evidence; in other cases it may be where the previous enquiry has been fuller to consider the order and pass an order accordingly. Supposing a Magistrate dismisses a complaint immediately after the initial examination of the complainant and the superior Court orders further enquiry, the Magistrate may in that case, if he likes, before summon ing the, accused, hold an enquiry under section 202, Cr. P. C. But in a case in which a complaint has been dismissed after a complete enquiry, it is obvious that the case is one in which the order of the superior Court for further enquiry can only be complied with by putting the accused upon the trial. What step is to be taken will in each case depend upon the circumstances of the case. A further enquiry thus includes a reconsideration of the existing evidence in relation to its effect on the complaint forming the subject‑matter of the enquiry. The "further enquiry" under section 436 is not restricted to proceedings under section 202 and need not be of formal character. The Magistrate directed may issue process to the accused persons and take evidence before coming to the conclu sion whether to discharge or not to discharge the accused. The words "further enquiry" are not limited to enquiry upon further materials or further or additional evidence. At further enquiry may be ordered on the same materials as were already before the lower Court even though there be no additional evidence disclosed and no allegation is made that such evidence exist, because further enquiry includes a recon sideration of the existing evidence in relation to its effect on the complaint forming the subject‑matter of the enquiry. Where a complaint has been dismissed after a full enquiry under section 202 of the Code, it could not have been intended that the Magistrate should make the same enquire once again. In such: a case an order for further enquiry can only mean reconsideration of the evidence and passing an order accordingly. The above view receives support‑ from the cases reported in A I R 1929 Pat. 644, A I R 1933 Lah. 561 A I R 1938 Pat. 369, A I R 1951 Assam 172 and P L D 1961 Lah.

753. In the instant case it appears that the learned Sub- Divisional Magistrate on receipt of the order of the learned Sessions Judge applied his mind to the materials on record. He reconsidered the relevant papers and report of the, enquiring Magistrate and on satisfaction thereon, issued summons against the accused. In the circumstances the order summoning the accused cannot be called in question. In this view of the matter we, are not inclined to interfere with the order complained of. The order of dismissal of the complaint does not mean the "discharge or acquittal" of the accused. No judicial proceedings has yet been started against the accused. That being the position the learned Magistrate is competent to issue process against the accused on reconsideration of the materials already on record. The order of dismissal of the complaint having been set aside by the superior Court, the learned Sub‑Divisional Magistrate has rightly issued process against the accused on reconsideration of those materials. The Rule is accordingly discharged. In this case we asked Mr. Daliluddin Ahmed, Advocate who was present in Court to assist us in the matter and he rendered assistance to the best of his ability. AHSANUDDIN CHOUDHURY, J.‑I agree. Rule discharged.