Authored By : J.F. Stevens, Mitra

J.F. Stevens and Mitra, JJ.

1. This Rule was issued calling upon the District Magistrateto show cause why the order made on the 5th of April last directing theprosecution of the Petitioners should not be set aside on the ground that theorder was one which was not within his jurisdiction to make.

2. The circumstances of the case are as follows. On the 18thDecember 1901, a complaint was made against the Petitioners and against onePunchanand Das, charging them with an offence punishable under Section 504 ofthe Indian Penal Code. The complaint was made to the senior Deputy Magistratein charge in the absence of the District Magistrate from the station. Thesenior Deputy Magistrate made the complaint over to another Deputy Magistratefor careful inquiry and report. The second Deputy Magistrate, after inquiry,reported that there was no case except against Punchanand Das. The DistrictMagistrate had evidently returned to the station, for the next two orders madein the case were by him. The first of these, namely, that of the 22nd January1902, was that Punchanand should be summoned under Section 504 of the IndianPenal Code. The second was dated the 4th February and made the case over to athird Deputy Magistrate for disposal. The case was then tried by the last-namedDeputy Magistrate as against Punchanand Das and ended in the conviction of thatperson. Thereupon, the complainant applied to the trying Deputy Magistrate thatthe other persons named in his complaint might be brought before the Court andtried also; but the application was rejected by the Deputy Magistrate on the20th of March 1902. The District Magistrate afterwards called for the case ashe says, under the provisions of Section 435 of the Code of Criminal Procedure.After referring to the record and making certain criticism on the judgment ofthe Deputy Magistrate who had tried the case, he recorded the following orderon the 5th of April 1902:

I now order the prosecution of the Police Sub-Inspector,Soshi Chowdhuri and Sub-Manager, Radhabullav Roy Chowdhuri, under Section 504of the Indian Penal Code.

3. It is this last order with which we are now concerned. Ithas been urged before us on the part of the Petitioners that the Magistrateacted without jurisdiction, inasmuch as there was no case before him in whichhe could pass the order in question. The District Magistrate has submitted inhis explanation that the case was before him, inasmuch as he had taken it uponhis file on the 22nd of January and he submits that the order now in questionwas but a supplementary order to that which he made on that date for thesummoning of Punchanand Das.

4. We think that when once the District Magistrate made thecase over for disposal to the Deputy Magistrate, it was out of his hands and hewas not competent to pass any order relating to it other than an order such asmight have been made by him under Chapter XXXII of the Code. That the case wasnot in fact upon his own file was indicated by his own action in sending forthe record, as he says, under Section 435.

5. We may refer to the case of Moul Singh v. Mahabir Singh(1899) 4 C.W.N. 242 and the case of Golapdy Sheikh v. Queen-Empress I.L.R.(1900) Cal. 979 of the same, volume as having some bearing on the present case.

6. We think that the order of the District Magistrate cannotstand and we therefore make this Rule absolute and set it aside.

7. We may mention that we have just set aside the convictionin the case of Punchanand Das on the ground that the facts proved do notconstitute an offence punishable under Section 504 of the Indian Penal Code.

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Radhabullav Roy vs.Benode Behari Chatterjee (10.07.1902 -CALHC)