K.C.Das Gupta, J. - (1.) On 24th of October, 1953, the petitioner Anil Kumar Saha, lodged a complaint before the , Sub-Divisional Magistrate of Lalbagh against the opposite parties, accusing them of having committed various offences. The main allegations were that when the opposite party No. 1, Pranada Chakrabarty, went to the complainant's father's house on 23rd of October, 1953, he demanded from his father, Bistu Pada Saha, the original Ekrarnama which one Samsher had executed in his favour; but as Anil Kumar Saha, on being asked by his father to make a copy of the same for being made over to the Sub-Inspector, went into an inner compartment, the Sub-Inspector along with two constables trespassed into the inner compartment, demanded the original Ekrarnama and while two constables -- whose names do not appear to have been mentioned in the petition of complaint, though they have been mentioned in the petition here -- held up the petitioner, the Sub-Inspector, opposite party No. 1, threatened him with a revolver. The allegation against the other accused persons appears to have been mainly of trespass into Bistu Pada's house. Alter taking cognisance of the petition of complaint, the Sub-Divisional Magistrate examined the complain ant, Anil Kumar Saha, on solemn affirmation and then sent it for enquiry to the Deputy Superintendent of Police (A). After the Deputy Superintendent of Police made his report, a Naraji petition was filed and then the Sub-Divisional Magistrate sent the matter to Sri A. C. Chatterjee, a Magistrate, for a judicial enquiry and report. The Magistrate examined a large number of witnesses produced by the complainant and also examined two persons -- the Deputy Superintendent of Police who held the previous enquiry and the Court Sub-Inspector of Police -- as Court witnesses. He stated in his report his conclusion that no prima facie case had been made out against the accused. The Sub-Divisional Magistrate considered the report and recorded the following order : "The enquiring Magistrate has examined 20 witnesses on solemn affirmation produced by the complainant and also 2 Court witnesses. Having gone into the records of deposition of the witnesses and the report of the enquiring Magistrate, I find that no prima facie case has been made . out against the accused persons, namely S. i. Pranada Chakravarty and others. I, therefore, dismiss the complaint under Section 203, Cr. P. C."
(2.) It 'is this order of dismissal under Section 203 of the Code of Criminal Procedure tnat Anil Kumar Saha now challenges as made illegally and improperly. The only ground urged before us in support of this submission, that the order of dismissal was illegal and improper, is the first ground mentioned in the application for revision in this Court. It is in these words "For that the learned Magistrates ought not to have allowed the accused to be represented before them before the issue of processes and to make submissions before them." I am unable to find anything in the record from which it can be said that the accused was represented before the Sub-Divisional Magistrate. What appears, however, is that when the enquiry was proceeding before Sri A. C. Chatterjee a lawyer was present in his Court, on behalf of the accused and that the Magistrate put certain questions to him and, on the basis of what the lawyer said, he put certain questions to the witnesses. This seems to me to be a fair conclusion from what has been recorded by Sri A. C. Chatterjee himself on an application that was filed before him on 15th of February, 1954. In the application that was filed by Anil Kumar Saha on that date, it was alleged that after the examination of prosecution witness No. 1. "the Court was pleased to ask certain questions to the witness" and tnat "just after that the Court was pleased to ask Sri N, K. Bhattacharjee, Advocate, who was present in Court, 'whether he has any explanation to suggest?' To this the learned Advocate suggested some questions which were asked of the witness". It was mentioned in paragraph 3 of the application that it was not known whom the Advocate represented and whether he had "any locus stand at this stage". The application ended witn the submission that this procedure would be seriously prejudicial to the petitioner and should not be followed. On this application the Magistrate recorded the following statement: "I found. Sri Nagendra Bhattacharya advocate watching the proceedings on behalf of the accused. When required by me he submitted explanation in regard to the evidence of some witnesses. I cleared up the matter by putting questions to the witnesses. As a matter of fact, he simply said that witnesses examined were also examined by D. S. P. (A). I referred to the previous statements of witnesses to D. S. P. and put questions to the witnesses for the ascertainment of truth of the complaints made" In consideration of this, I have come to the conclusion, that it is fair to believe that the advocate Nagendra Bhattacharyya was present in Court at least on 15th of February, 1954, during the examination of some of the witnesses in the enquiry under Section 202 of the Code of Criminal Procedure and that some questions-were put to him by the Magistrate, apparently asking him whether he had any questions to suggest for being put to the witnesses; that thereupon he did suggest that -witnesses' attention should be drawn to previous statements made by them before the Deputy Superintendent of Police and that thereupon the Magistrate did put questions on those lines to the witnesses.
(3.) The question before us is whether this part that was taken by the accused through his lawyer in the enquiry under Section 202 of the Code of Criminal Procedure vitiates the enquiry to such an extent as to make the order of dismissal passed by the learned Magistrate on basis of that report liable to rejection.;