K.C.Das Gupta, J. - (1.) This Rule is directed against an order directing issue of warrant of arrest against the five petitioners under Sections 120B/302, Penal Code. On 11-2-1952 one Biswanath Dhanuka met his death when in the house No. 196-C, Chittaranjan Avenue. In a flat in that house the 4 Dalmia petitioners lived. With them also lived a young girl named Sarada. Bholaram. Dalmia & Rabishankar Dalmia are her brothers, Ramprosad Dalmia is her uncle and Shyamsundar Dalmia her cousin. Biswanath Dhanuka who was a frequent visitor to another flat in that building fell in love with Sarada; love letters were exchanged, but when her marriage with another young man was arranged Biswanath Dhanuka took exception to it. The marriage was fixed for the 18th of February. On the llth of February Biswanath came to this house. At 6 P. M. or shortly thereafter he was discovered lying dead with his throat cut with a blood-stained knife by the body. The body was found on the first floor landing of the staircase. After prolonged investigation the police sent up a report stating that the materials available were not sufficient for sending up a charge-sheet against any person. Thereafter Biswanath's father filed an application in the court of the Additional Chief Presidency Magistrate alleging among other things that the police had proceeded under a fundamental misconception that it was a case of suicide, that the circumstantial evidence along with the oral evidence as disclosed in the investigation was strong enough to lead to the conclusion that the accused Bholaram Dalmia and others, seven in number, were involved in the offence, that the police completely failed to appreciate the evidence and that it was entirely wrong to say that there was not sufficient evidence to convict the accused. The application ended with the prayer that the Additional Chief Presidency Magistrate should refuse to accept the police report and should order a judicial enquiry into the matter or take "such step or steps for bringing the delinquents to book". Thereafter the learned Additional Chief Presidency Magistrate Mr. K. K. Das Gupta directed Mr. K. C. Sen to hold a judicial enquiry into the complaint and report by 18-8-1952. Before Mr. Sen the complainant wanted to examine two witnesses only. These two were examined. After consideration of their evidence and "the police papers, records in Coroner's Court, post-mortem examination report and the replies of Dr. Kabir Hossain to certain queries made by the police," the learned Magistrate came to the conclusion that this was undoubtedly a case of murder but there was "unfortunately nothing direct or circumstantial to show that the persons complained against committed the murder or abetted the commission gf the murder or conspired together to commit the murder." Accordingly he submitted a report stating his conclusion and the reasons thereof and recommending . dismissal of the petition of complaint under Section 203, Criminal P. C. When the report came to Mr. K. K. Das Gupta, he apparently agreed, with the Magistrate in the view he had taken of the matter but instead of dismissing the complaint as he should reasonably have done in view of his conclusion he passed an order in these words: "At the same time I wish to keep the doors open for further investigations as against any of the suspects at the instance of the complainant, if so advised. In the view I have taken I do not think that I should dismiss this petition of complaint under Section 203, Criminal P. C. and I allow the same to be filed." On this Court being, moved against this order, this Court held, that the order passed by the learned Chief Presidency Magistrate was not in accordance with law and set aside the order passed by him and directed that he should "after consideration of the statement of the , complainant on oath and the result of the enquiry which was held under Section 202, Criminal P. C. come to a decision whether there is sufficient ground for proceeding in the matter. If in his opinion there is such ground he should issue processes under Section 204, Criminal P. C. and if in his opinion there is not sufficient ground i'or proceeding, he should proceed under Section 203, Criminal P. C." In spite of the fact that the prayer of the petitioner that further enquiry should be held by the learned Chief Presidency Magistrate was rejected by this Court, the complainant obtained an order from the Chief Presidency Magistrate--apparently concealing the fact of the above prayer having, been refused by this Courts-Withdrawing the case to his own file. The Chief Presidency Magistrate thereafter passed an order for issue of process against these petitioners under Section 302/120-B, Penal-Code. The petitioners thereafter moved this Court against this order of the Chief Presidency Magistrate and the order was set aside by this Court and the case was sent back to the Court of the Additional Chief Presidency Magistrate with the following order: "The matter must accordingly be determined by the learned Additional Chief Presidency Magistrate in the light of the order of this Court passed on 26-11-1952. The order of the learned Chief Presidency Magistrate dated 21-1-1953, complained of in this application is set aside. The learned Additional Chief Presidency Magistrate is directed to act in accordance with the order of this Court, dated 26-11-1952." After the record went back to the Additional Chief Presidency Magistrate K. K. Das Gupta he unfortunately did not take up the matter and it was only after he had retired that his successor Mr. B. C." Ghosh took up the matter. Mr. Ghosh thereafter examined the complainant on oath and passed the order just now complained of.
(2.) This order indicates that in coming to the conclusion that process should be issued, the learned Magistrate relied on police papers, the report of the judicial enquiry held by Mr. Sen and the comments thereon by Mr. K. K. Das Gupta, the proceedings before the Coroner's court and the post-mortem examination report.
(3.) The question arises whether the learned Magistrate could in law rely on papers which were not on the records of the case. Neither the proceedings before the Coroner nor the police papers formed part of the Court's record. The issue of process under Section 204, Criminal P. C. or dismissal under Section 203 is clearly a matter for judicial determination. In my judgment, no Magistrate is entitled to bring to bear on the judicial determination of such matters, information which comes to his knowledge from other sources than in court in accordance with law. Say for instance, could a Magistrate issue process or dismiss a complaint on some confidential information received by him? I am clearly of opinion that he could not. It has again and again been said that it is necessary not only that justice should be done but that justice should be seen to be done. If Magistrates were to base conclusions on materials not properly before the Court, there would be great, scope for impartial people thinking that justice has not been done.;