P L D 1960 Dacca 197 (PLP)

AKBAR, J.‑This is an application against an order purporting to be made by the Additional District Magistrate, Tippera, in revisional jurisdiction.

2. On the complaint of one Sitanath Chakraborty that his daughter Fuli, aged 12, was missing, the police, after investiga tion, submitted charge‑sheet against the petitioners under sections 363/365/366/109, P. P. C. A Magistrate, 1st Class, at Brahmanbaria, after examination of witnesses, both for the prosecution and the defence, discharged the accused under section 209, Cr. P. C. The complainant then moved the District Magistrate against the order of discharge. The learned Additional District Magistrate, who heard the application, held that there was a prima facie case against them. Hence, he allowed the motion, set aside the order of discharge and directed further enquiry under section 436, Cr. P. C.

3. The accused persons then moved the Sessions Judge for making a reference under section 438, Cr. P. C., to the High Court for quashing the order of the Additional District Magis trate, but he rejected the petition.

4. Rahman, J., then issued a Rule at the instance of ten accused persons calling upon the District Magistrate, Tippera, to show cause why the order of the Additional District Magistrate. Tippera, setting aside the order of discharge of the petitioners under section 209, Cr. P. C., passed by a Magistrate, 1st Class, Brahmanbaria, should not be set aside.

5. When the Rule came up for hearing before Rahman, J., the learned Advocate appearing in support of the Rule contended that the Additional District Magistrate had no power either under section 436 or 437, Cr. P. C., to set aside an order of discharge passed by a Magistrate exercising 1st class power. In support of the said contention, reliance was placed on two decisions of this Court in the case of Md. Safiuddin Ahmed v. The Crown (4 D L R 369) and Mohibur Rahman v. The Crown.

6. In the first case, a Division Bench of this Court held that the District Magistrate had no jurisdiction to set aside an order of discharge made by a Magistrate of the First Class. In the second case, a Judge of this Court sitting singly held that the Additional District Magistrate has no jurisdiction to set aside an order of discharge made by a Magistrate, 1st class.

7. As Rahman, J., felt that the above decisions needed further consideration, he placed this matter before the Hon'ble Chief Justice for referring it to a larger Bench. Hence this has been placed before us.

8. The view taken by a Division Bench of this Court finds support from the following cases : Nobinkristo Mookerjee v. Russick Lall Laha (I L R 10 Cal. 268) ; Queen‑Empress v. Nowab Jan (I L R 10 Cal. 551) and Jhinguri v. Bachu (I L R 7 All. 134).

9. All the above cases were considered by the Lahore High Court in the case of Indar Singh and others v. Emperor (30 Cr. L J 490). The learned Judge, while dealing with the contention of the petitioner that the District Magistrate had no jurisdiction to set aside an order of a Magistrate of the 1st Class, observed: "In support of this contention he cites Nobinkristo Mookerjee v. Russick Lall Laha ; Queen‑Empress v. Nawab Jan and Jhinguri v. Bachu, but these rulings were overruled by Opendra Nath Ghose v. Dukhini Bewa 12 Cal. .473 (F B) and Queen‑Empress v. Laskari 7 All.

853. This later view of the Calcutta and Allah abad High Courts were also given expression to by the Bombay and Madras High Courts also in the cases reported as Queen Empress v. Pirya Gopal 9 Born. 100 and In the matter of the petition of Padmanabha 8 Mad. 18 and by the Punjab Chief Court in Shumsuddin Khan v. Pir Ala Jawaya 38 P R 1885 Cr. and Waryam v. Amir 10 P R 1894 Cr. In the light of all these rulings, the learned Counsel's contention must fail." In view of the numerous decisions referred to in the above observation, Mr. Salam, the learned Advocate for the petitioners, has found it difficult to contend that a District Magistrate cannot set aside an order passed by a Magistrate of the First Class.

10. It seems to us that, in the two cases reported in I L R 10 Calcutta, the Calcutta High Court took the view that a District Magistrate was not competent to set aside the order of a Magis trate, 1st Class. Similar view was also taken by the High Court in Jhinguri v. Bachu. Later, a Full Bench of the Calcutta High Court in Opendra Nath Ghose v. Dukhini Bewa overruled the said earlier decision of that Court. Similarly, in the case of Queen -mpress v. Laskari, a Full Bench of the Allahabad High Court overruled the decision reported in the same volume at page

134. Since then all the High Courts in India have uniformly held that the District Magistrate or the Additional District Magistrate has power to set aside an order of a 1st Class Magistrate. In the light of these rulings, the decision of this Court in 4 D L R 369 cannot be regarded as correct.

11. Here we may observe that in the case of Md. Safiuddin Ahmed v. The Crown none of the Full Bench decisions mentioned above were cited before the Court. Furthermore, the judgment of the Division Bench is very brief and gives no reasons for the view taken by them. Hence we do not think that any useful purpose will be served by referring the case to a larger Bench. If the decisions of the various High Courts were placed before the Division Bench, we are confident that the Court would have taken a different view. Rahman, J., in his order of reference, has observed: "Section 436 clearly provides that the District Magistrate may himself make or direct any subordinate Magistrate to make further inquiry into any complaint, etc. Section 437 also gives co‑ordinate powers to the Sessions Judge and the District Magistrate. The Third Schedule to the Criminal Procedure Code also indicates that the ordinary powers of a District Magistrate included the power to order inquiry into complaints dismissed or cases of accused discharged under section 436 or to order commitment under section

437. Subsection (2) of section 10 also empowers a Provincial Government to appoint any Magistrate of the 1st class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of the District Magistrate under this Code as the Provincial Government may direct. Under section 17, all Magistrates appointed under sections 12, 13 and 14 of the Criminal Procedure Code are to be subordinate to the District Magistrate. Hence it is possible to contend that they are also inferior within the meaning of that word in section 435 of the Code of Criminal Procedure to the District Magistrate. If this be the correct view, then it is difficult to appreciate why the District Magistrate or the Additional District Magistrate duly vested with the powers under sections 436 and 437 should not have the power of setting aside the order of discharge even though it may be one passed by a Magistrate of the 1st class." We fully agree with the above observations of the learned Judge and hold that the Additional District Magistrate, Tippera had power to set aside the order of the Magistrate, 1st Class, Brahman baria.

12. We might now advert to the merits of the case. So far as petitioners Afiz Ali, Shama, Shamsher Ali, Syed Abu Taher alias Taher, Abdur Rashid, Syed Rafiqur Rahman alias Shahansah and Tita Mia are concerned, we think that, on the evidence before him, the learned Magistrate was justified in holding that no prima facie case had been made out against ‑them. Hence, the view of the learned Additional District Magistrate, so far as these petitioners are concerned, is palpably unreasonable and perverse. Hence we set aside the order of the Additional District Magistrate so far as the above‑named petitioners are concerned.

13. So far as petitioners Mukshed Mia, Tara Mia and Musa Mia are concerned, we would uphold the order of the Additional District Magistrate. In our opinion, there is legal evidence on record as against them. Hence, the learned Additional District Magistrate was justified in setting aside the order of discharge, so far as they were concerned.

14. We shall, therefore, set aside the order of the Additional District Magistrate so far as the petitioners Afiz Ali, Shama Shamsher Ali, Syed Abu Taher alias Taber, Abdur Rashid, Syed Rafiqur Rahman alias Shahansah and Tita Mia are concerned. We, however, uphold his order with regard to the petitioners Mukshed Mia, Tara Mia and Musa Mia.

15. The Rule is made absolute to the extent indicated above. HASAN, J.‑I agree. K. B. A. Rule made absolute.