P L D 1963 Dacca 618 (PLP)

"Accused Abdur Rahman is produced from jail hajat. Accused Haji Abdul Gani is present from Court bail by hajira. It appears that Mr. J. Alam, who, it appears was the I. O. who submitted the C. S. referred to in the order dated 3‑6‑61 has not been written. Obtain the report from him by 10‑6‑61." Then, on 10‑6‑61, the order of the Magistrate is: "Seen the report of Mr. J. Alam, who says that the C. S. has been withheld by the S. P. This sounds unusual. He is not clear in his report whether he submitted the C. S. to the S. D. O. or to the S. P. Obtain clarification from him. The Thana Dak‑book may also be put up on the next date to prove this. To‑date." A portion of the order dated 20.6‑61 is in the following terms: "Seen the report of the Dy. S. P. and also of the I. O. Mr. J. Alam, A. S. I. From these two reports it appears that the C. S. of this case was submitted to Court. The police officer received that C. S. on 25‑3‑61, which was never put up to the S. D. O. Mr. A. Wahab, C. S. I., who received the C. S. says that immediately after he received the C. S. the S. P. called him personally and took back the C. S. from him saying that he would withhold it. Let this C. S. I. submit a written state ment to this affect which may be filed with the record. There is no order from the S. P. to the effect that S. P. has really withheld the C. S. The C. S., received with D. S. P.'s report does not bear any such endorsement. Obtain one report from the S. P. on this point i.e. whether the C. S. of this case has been withheld by him. To 6‑7‑61." On 6‑7‑61 the Magistrate passed the following order: "Accused Abdur Rahman is produced from jail hajat and Abdul Gani is present from Court bail by hajira. No report from I. O. 22‑7‑61." Thereafter on 22‑7‑61 he passed the following order: "Accused Abdur Rahman is produced from jail hajat and Haji Abdul Gani on Court bail are present. No report from I. O. Issue takid fixing 5‑8‑

61. Seen the report of I. O. and the true copy of the order passed by S. P., Sylhet. Seen also the petition filed by the complainant Abu praying for the arrest and detention of the accused and to proceed with the enquiry. Seen also the report of Senior C. S. I. Abdul Wahab. It is rather strange that a murder case has been handled so carelessly that practically two sets of accused are being pur sued while each of them claims to be valuable witnesses in sup port of the prosecution against the other set of accused. When the S. P. has withheld the C. S. in this case and the other case is still under investigation, I do not find any reasons why two cases should be there. Let the I. O. investigate the case thoroughly and submit one C. S., because apparently any one set of people are involved. Further proceeding in this case is stayed till submission of the report of the I. O. in the other case on receipt of which both the files will be merged together and treated as a single case."

6. On the basis of this last order, Mr. Gani has argued that, since the Magistrate ultimately agreed that the murder should be further investigated into and one charge‑sheet submitted on the basis of both sets, of allegations, and when the police after investigation have submitted a report finding the case of Abu to be false and that of Abdul Jalil to be true which has been accepted by the Magistrate, the prayer for further enquiry by Abu cannot be entertained. On the face of it, this argument appears plausible. We have, however, given our anxious consideration to the facts and circumstances of this case and in this context we cannot accept this argument. If the order passed by the Magistrate on 22‑7‑61 and thereafter on 1‑8‑61 accepting the police report and thereby discharg ing the accused persons in Abu's case are judicial orders, then we have no hesitation in holding that they call for our inter ference. The learned Magistrate initially insisted on the production of the charge‑sheet prepared by the Officer‑in‑Charge but ultimately agreed to accept the course adopted by the Superintendent of Police. He never gave his own thought to the two conflicting reports prepared by two sets of officers, though not of equal rank but of equal importance in the eye of law. It thus appears to us that the learned Sub‑Divisional Magistrate passed the above order because the Superintendent of Police had withheld the charge‑sheet submitted in Abu's case and directed further investigation and not on an independent application of his own judicial mind to the facts and circum stances of the case. We, therefore, feel satisfied that the order discharging the accused persons in Abu's case calls for our interference.

7. Mr. Gani has then argued that the order dated the Ist of August 1961 is an administrative order and therefore, cannot be interfered with by this Court. In support of this contention, he has relied on the decision of the Lahore High Court in the case of Sardara and others v. Muhammad Niwaz and others (P L D 1949 Lah. 537). In this case the order of the Magistrate issuing warrants of arrest against some accused persons on complaint after an order of discharge had already been passed on a police report was justified as it was held that order of discharge was passed under section 173(3) of the Code of Criminal Procedure. This subsection of 173 refers to a case provided for in section 169 where the Investigating Officer has released an accused on his own bond with or without sureties to appear if required by a Magistrate and reports that there is no sufficient evidence or reasonable suspicion against him. The order of discharge under section 173(3) differs from an order dis charging an accused against whom there is sufficient evidence but yet the officers think that the evidence cannot be relied upon and the Magistrate agrees with it. Such an order, in our view, is a judicial order particularly so when the order of the Magist rate is passed in spite of the protests of the informant against the police report and that also without examining him as in the present case. The above decision is based on an earlier decision of the same Court Brahm Dev v. Emperor (A I R 1938 Lah. 469). In this case the decision of the Patna High Court Uma Singh and others v. Emperor (A I R 1933 Pat. 242), was followed. The case of Uma Singh and others v. Emperor no doubt supports the contention of Mr. Abdul Ghari to some extent, but in that case also the order of the Sessions Judge interfering with the order of discharge seems to have been approved. The question that came up for considera tion by a Bench of the Patna High Court in this case was whether a subsequent order by the Magistrate asking the police to submit charge‑sheet against some accused persons after they had been discharged by the learned Magistrate on a police report was hit by the provisions of section 403 of the Code of Criminal Procedure on the principle of autrefois acquit. The learned Judges held that it was not so.

8. In the case of J. D. Boywalla v. Sorab Rustomji Engineer (A I R 1941 Bom. 242), a contrary view was taken. Therein, Beaumont, C. J. observed as follows: "But then it is contended both by the opponent and by the learned Government Pleader that there is no power under the Criminal Procedure Code for a Magistrate to discharge an arres ted person, without having taken cognizance of the case, mere report of a Police‑officer, and it is said that here the learned Magistrate had not taken cognizance of the case. The logi cal result of that argument, if it were to prevail, would be, not that the order of discharge was an administrative order, but that it was an invalid order, and the accused still remained on bail. In my opinion, however, there is no force in the argument. Under section 190, Criminal Procedure Code, a Presidency Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence, or upon a report in writing of such facts made by a Police Officer, or upon information received from any person other than a police officer, or upon his own knowledge or suspi cion, that such offence has been committed. Section 204, Criminal Procedure Code provides that if, in the opinion, of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then he can proceed either by summons or warrant as therein mentioned. The wording of that section seems to suggest that there may be a case in which the Magistrate has taken cognizance, but in which, in his opinion, there is no sufficient ground for proceeding; and it is quite true that the Criminal Procedure Code does not provide what is to happen in that case. But it seems to me to follow by necessary implication that the Magistrate must in social a case discharge the accused. If he is not prepared to proceed further, and the accused is under arrest and before him, he must necessarily discharge him. There is no other course open to the Magistrate; the accused cannot be left indefinitely in custody or on bail. There is noting that I know of in the Procedure Code which suggests that such a course is not legal. When, in the case of a man who has been arrested and released on bail the police‑officer reports that there appears to be no case, and invites the Magistrate to discharge the man, the Magistrate is not bound to act upon the police view. He can undoubtedly say: "Will have a further inquiry in this matter. I think the Police are wrong in suggest ing that the accused should be discharged." And he may direct further investigation. On other hand, I have no doubt that he may say: "I have no reason for thinking that the report of this police officer who is responsible person, is wrong, and if he tells me that after investigation he thinks there is no case, I will do as he suggests and discharge the accused." But in either case the Magistrate is taking cognizance of the case. He cannot discharge the accused, or direct a further investi gation unless he first takes cognizance. The learned Magis trate in discharging the accused is making an order similar in character to the order which h.: can make under section 203, Criminal Procedure Code, where he acts on a report of the Police or an investigation undertaken at his request. If after considering the report he thinks that there is no suffi cient ground for proceeding, he may discharge the accused. B Although the Code does not expressly so provide, I have no doubt that a Magistrate can act upon the report of a Police officer, as to the result of a Police inquiry undertaken under the Code in accordance with the powers conferred upon the police, and can discharge n accused person without further inquiry. But in such a case the order of the Magistrate is a judicial order which would be open to review by this Court." We are in respectful agreement with the view of the learned Chief Justice of the Bombay High Court.

9. Mr. Hamidul Haq has agreed that the submission of charge‑sheet in the case of Abdul Jalil by the D. S. P. after sub mission of the final report by the Officer‑in‑Charge is illegal. We are not impressed by this argument. The right of the Police to submit a charge‑sheet even after submission of final c report cannot be questioned. See A I R 1916 Mad.

502. The fact that Abdul Jalil has since withdrawn from contest and has filed an affidavit asserting that he filed the petition of com plaint on the basis of a false report does not alter the position. We, therefore, see no reason to quash the proceeding in his case.

10. The next point that falls for determination is: In what form the enquiries should be held? In the case of Abdul Jalil, an enquiry under Chapter XVII will have to be made. We feel that similarly in the case of Abu also an enquiry should be held. The two cases, though not exactly in the nature of counter‑cases, are of that kind, and we could not think of a better course than the one indicated above. This in the first flash appears to be somewhat novel but we have to be driven to this course because of the usual nature of the facts involved. Two parties have come forward claiming one dead body to be of two different persons and each has alleged that the members of the other party are the murderers of the deceased. Allegations and counter allegations have been made against the two sets of Police‑Officers enquiring into the facts of the murder and their findings are opposed to each other. We have not entered into the merits of these allegations advisedly lest any remark by us may have any bearing on the ultimate decision of these cases.

11. The only other question that needs decision is Whether the accused persons in Jalil's case should be granted bail pending the preliminary enquiry by a competent Magis trate? They were on bail but it was cancelled by the Sessions Judge on the petition of one Asaddar whose connection with these cases has not been established except that he is said to figure as a witness in Jalil's case which however has been challenged before us. The allegations that some of the accused persons tried to gain over prosecution witnesses and wrong fully confined one of them coming not from the Police but from a private person who at best may be a witness, do not inspire confidence. Even in this Court no affidavit has been filed on behalf of the State in support of these allegations. Moreover, since we have decided that both the cases should be enquired into these accused persons should, be granted bail pending such enquiry. In the result, the Rule in. Revision Case No. 753 of 1961 is discharged. The Rule in Revision Case No. 752 of 1961 is made absolute and the impugned order of discharge set aside. It is directed that enquiries in both the cases, namely, of Abu and Jalil, be held by the same Magistrate as in the case of counter‑cases. The Rule in Revision Case No. 754 of 1961 is made absolute and the petitioners are directed to be released on bail to the satisfaction of the Deputy commissioner. S. B./A. H. Order accordingly.