Dhavle, J.This is an application to quash the trial of the petitioner N.L. Carrick, Chief Accountant of the India Copper Corporation at Ghatsila, in the following circumstances:

2. On 8th May 1939, one A.B. Rao, a worker of the company (as the corporation seems to be called), wrote to the officer in charge of the Ghatsila Police Station that while he was waiting for payment, the companys sepoys had begun to use force and one Karam Elahi and three other Pathans had caught him and Karam Elahi had pushed him and punched him twice. Shortly afterwards A.T. Chatterji and two others also wrote to the same officer that they had been severely assaulted by the Pathan sepoys and Pathan workers, by the order of Mr. Carrick, as they were prominent members of the Workers Union. The Sub-Inspector drew up the usual first information on A.B. Raos letter though the other letter was also treated as part of the same cases, and dealt with it as a case under Sections 147 and 323, Penal Code.

3. In the course of the in-vestigation that followed, Kajir Khan,a sepoy of the company who had been injured, made a statement which formed the subject of a counter case; and this case was also investigated at the same time. On 1st June the investigating officer submitted what is known as a final report to the effect that no case of rioting was made out as the ingredients of that offence were not all proved, and that it was a non-cognizable case u/s 323, Penal Code. On 20th June this report was accepted by Mr. Khan, the Magistrate then in charge of the sub-division, who ordered the case to be shown in the register accordingly.

4. On 21st August 1939, Rai Bahadur M.P. Sinha, who had by this time succeeded Mr. Khan, was moved by the Court Sub-Inspector on a letter or report of the Inspector of Police and a copy of a letter of 3rd August 1939, from the Chief Secretary to Government in which it was stated that Government were of opinion that the two cases (apparently Raos case and the counter case) should be tried and the issue decided in the Court. This letter was addressed to the Deputy Inspector. General of Police, C.I.D., and was sent to the Inspector in the usual course for information and compliance. The Inspector wrote that "in face of the Government orders charge sheets will have to be submitted in both the cases u/s 147, Penal Code," and he enquired if it would be regular for the police to submit the charge sheets suo motu or whether in order "to regularize judicial proceedings" the Sub-Divisional Officer should call for charge sheets. Upon this Mr. Sinhas order was "Inspectors report and copy of Government orders seen. Call for a charge sheet by 31st August 1939."

5. On 28th August 1939, Mr. Sinha noted that the charge sheet had been received, and transferred the case to Mr. A.T. Bajpai for disposal, adding, "you will please have the original record called for." Mr. Bajpai apparently received the record on 30th August and three days afterwards he directed the summoning of the prosecution witnesses and the production of the petitioner and six other persons who had been named as the accused in the charge sheet and had been recently put on bail by the police.

6. Regarding these facts there is no dispute, and indeed they are mere matters of record. The petitioner states in para. 6 of his petition that in consequence of the dismissal of nine clerks on 6th May 1939, for refusing to obey orders, practically the whole office staff had declared a hartal; and in the next paragraph, that thereafter Mr. Mackillingin, the General Manager of the company, had an interview with the Honble the Prime Minister of Bihar on 24th July at which he had declined to accede to the request of the latter to reinstate the dismissed clerks. As to these allegations, there is no denial before me on behalf of the Crown. The letter of the Chief Secretary is dated 10 days after the interview.

7. The petitioners contention is that in calling for the charge sheet the Sub-Divisional Magistrate did not bring his judicial mind to bear on the case at all, but only acted on the Inspectors report which merely sought to carry out Government orders, that he made no reference to any proper materials before calling for the charge sheet, and that inasmuch as the charge sheet purports to refer to what may be called Raos case, there was no justification for summoning the petitioner because the petitioner is not referred to in Raos letter and there is no suggestion that the petitioner had taken any part in the occurrence complained of.

8. In the latter part of this contention there is no substance, for the petitioner is mentioned in the letter that followed Raos and was treated as a part of the same case, and action need not be confined to persons named in the first information or charged with taking a direct part in an occurrence. There is no dispute that Mr. Sinha was competent under the law to reconsider the matter notwithstanding the order passed by his predecessor on 20th June.

9. It is also beyond question that Mr. Sinha could only do so on proper materials, but Sir Manmatha Mukherji for the petitioner has urged that the materials Mr. Sinha referred to in his order of 20th August ("Inspectors report and copy of Government order seen") were not proper materials for a Magistrate to act upon. A similar point was taken before Sessions Judge when the petitioners first moved him, and Mr. M.P. Sinha in his explanation said that:

The Government orders on the subject being executive and not judicial, it is not to be governed by Section 485, Criminal P.C., and as such the legality or otherwise of this order need not be taken up in the revision.

10. The petitioner, however, has been asking the Courts to revise not the "orders" of Government, but the judicial orders of the Magistrate. The simple question is whether in taking judicial action the Magistrate acted merely on what he took to be Government orders or whether he had other sufficient materials on which he could and did proceed judicially; if the former be the case, the proceedings against the petitioner must plainly be quashed, leaving it open to those concerned to proceed in the proper way.

11. There has been some difference of opinion in this Court on the question whether the order of a Magistrate (empowered to take cognizance on police reports) calling for a charge sheet is a judicial or an administrative order; but it is not necessary for the purposes of this case to go into that point because we are here dealing with a case in which the Magistrate has undoubtedly taken judicial action on what was before him on 21st August, supplemented, if necessary, by the charge sheet which however, will presently be seen to provide little justification for judicial action. Section 192(1) empowers a Sub-Divisional Magistrate to transfer any case of which ho has taken cognizance for inquiry or trial, to any Magistrate subordinate to him. Mr. Sinhas order of transfer to Mr. Bajpai, therefore, necessarily imports his taking cognizance of the case, and though the expression taking cognizance is not defined in the Code (see the discussion of this point in Baldeo Prasad Vs. Emperor, , there can be no dispute that it constitutes a judicial act. It follows that even if the calling for a charge sheet be regarded as an administrative matter, the Magistrates action in taking cognizance and transferring the case to Mr. Bajpai for trial is a judicial matter open to scrutiny by Courts of revision under Sections 435 and 439, Criminal P.C.

12. The petitioner complains that the charge sheet was called for "as a result of the unwarranted interference by the executive authorities"; and it is not a sufficient answer to this to say that calling for a charge sheet is an administrative matter, for Mr. Sinhas further action in the case must, in any event, be regarded as judicial, and if it should appear to have been dictated by nothing better than what were taken to be Government orders, it must (as I have already said) plainly be set aside in revision. As to the materials before the Magistrate, the petition says specifically that neither the Inspectors report nor the copy of the Government orders, on which materials the order of 21st August, passed by the Sub-Divisional Magistrate calling for a charge sheet was founded, contains any relevant materials which can form the basis of that order.

13. A reference to the Inspectors report and the letter from the Chief Secretary shows that the contention is really unanswerable. Government were of opinion that the cases should be tried and the issues decided in the Court, and if that opinion was transmitted through the usual channels to the Inspector of Police for compliance, it is perhaps not surprising that the Inspector took it that under those Government orders (as he calls them) charge sheets would have to be submitted in both the cases. But it is not to be supposed that Government intended to give any orders to the Sub-Divisional Magistrate, and it is just possible that this is what the Magistrate meant when he stated in his explanation to the Sessions Judge that the Government orders on the subject were executive and not judicial. But if the Magistrate did not take the Government letter to mean orders intended to be carried out by him, the Inspectors report of 19th August, which is the only other material referred to in his order of 21st August, contains no materials on which he could properly have decided to call for a charge sheet, whether by way of judicial action or as an obvious preliminary to judicial action. The Inspector merely refers to the so-called Government orders and raises the question how those orders should be carried out by the Police submitting a charge sheet. Since the cases were disposed of by the Sub-Divisional Officer as non-cognizable u/s 323, I.P.C., there could be no further investigation under Chap. 14, Criminal P.C., without the order of a competent Magistrate--see Section 155 (2)--and no charge sheet u/s 173. In his explanation to the Sessions Judge, the Magistrate said that the Inspectors report of 19th August.

was enough to take up the matter for further consideration and to call for a charge sheet under Sections 190(b) and 173.

14. This does not make it clear how far he realized at that time that to call for a charge sheet on the Inspectors report with out reference to any other materials was but to carry out what he took to be the orders of Government. In his explanation to this Court, however, he says in reply to ground 3--that in reality he had not at all applied his own mind to the facts of the case but had merely acted as desired by Government, that the Inspectors repost gave him occasion to apply his mind to the final report submitted and to review the previous orders thereon. This statement has caused me considerable difficulty. It is not clearly stated that he actually looked into the final report before passing his order of 21st August and indeed, if he had really done so, it is difficult to imagine how he only said to the Sessions Judge that the Inspectors report was enough to take up the matter for further consideration and to call for a charge sheet. But this is not all; while, in the order of 21st August, he refers to the Inspectors report and the copy of Government orders only, he adds, when on 28th August he transferred the case for trial to Mr. Bajpai, that this Magistrate is to "have the original record called for." This suggests very strongly that what the Sub-divisional Magistrate called the original record--and this must have contained the final report--could not have been with him on 28th August and if the record was not with him on 28th August, it is difficult to imagine how it could have been with him on 2lst August and then been sent away somewhere to be called for after the 28th.

15. I am also bound to observe that if the Sub-divisional Magistrate had really gone into the final report before passing his order of 2lst August nothing would have been easier than for him to have said so clearly in his explanation to the Court of Session and to this Court, as he has refrained from doing. It is impossible on these materials to feel that the Magistrate, though he has thought of an "occasion to apply his mind to the final report," actually had that document before him when he considered the Inspectors report on 21st August or the charge sheet on the 28th of that month. As to applying his mind to the facts of the case, it is unfortunate for the Magistrate that the charge sheet in fact reads like a warning to a judicial officer, for it says:

The case was investigated, and I submit the charge sheet against the persons named in column & u/s 147, I.P.C., in face of Government orders.

(The italics are mine.)

16. It does not say that the investigation pointed to the guilt of any of the accused persons named u/s 147, I.P.C. Indeed, the Inspector could not possibly have made any statement of that kind because the final report of June 1939 with which the investigation had concluded expressly stated that no offence of rioting had been made out. If the Magistrate chose to call for a charge sheet on no more than the Inspectors report and the Government letter, and if he further chose to put the accused on trial on such a charge sheet, he would seem to have applied his mind merely to carrying out the views of Government rather than to considering whether there were any proper materials for his putting the accused on their trial.

17. It was clearly his duty as a judicial officer to form his own views on proper materials instead of merely carrying out the views of Government in his judicial work as a Magistrate; and I find it impossible on present materials to hold that the Magistrate applied his judicial mind before putting the petitioner on his trial. It seems desirable to add that in submitting his replies to rules issued by the superior Courts the Magistrate should express himself clearly after an understanding of the grievance that a petitioner may be making out. For, in para. 13 of the petition in this case, the whole of the Magistrates order of 28th August is quoted and in ground 2 the Inspectors report and the Government orders are referred to as the materials on which his order of the 2lsb was founded; and yet the Magistrate has failed clearly to say that he looked into the final report if indeed he ever did so.

18. After coming to this conclusion I enquired from the Bar about the other six persons accused in the case. Sir Manmatha Mukherji has since filed an application on their behalf for relief on the same grounds as Mr. Carrick, and the Advocate-General who has communicated with the local authorities has stated that there is nothing further to say as against these persons.

19. The result is that the revisional application of Mr. Carrick and the other revisional application which has been filed by Sir Manmatha Mukherji on behalf of the other six accused to-day must both be allowed and the proceedings against them quashed. This will, however, leave it open to anybody concerned to move the Sub-divisional Magistrate, if necessary, on proper materials.