A Magistrate cannot rescind an order passed by another Magistrate who had received the complaint and heard the complainant on solemn affirmation, after summonses as directed by the first Magistrate had been issued and served.

Jamuar, J.

1. This application in criminal revisional jurisdiction has been referred to a Division Bench by a learned single Judge of this Court as it raises a point of considerable importance in procedural law.

2. The short facts relevant for the decision in this case are these. On the 24th of March 1955, a complaint was filed by the petitioner before a Magistrate named Mr. B. P. Srivastava, who, as it appears, was in charge of the Court of the Subdivisional Officer on that date in the absence of the Subdivisional Officer. Mr. Srivastava examined the complainant on solemn affirmation and after seeing the injuries upon the complainant ordered for the summoning of the accused under Sec.323 of the Indian Penal Code, and then he directed that the case be transferred to the Court of Mr. T. P. Singh, an Honorary Magistrate, with second class powers, for favour of disposal; and on the 25th March 1955, Mr. T. P. Singh directed processes to be issued on the accused persons.

3. It then appears that on the 29th March 1955, an application was filed in the Court of the Subdivisional Magistrate on behalf of the accused persons praying that the order passed by Mr. Srivastava on the 24th March 1955, summoning the accused persons be recalled and for a further order that the case be enquired into by some independent person. Upon this petition, the Subdivisional Magistrate ordered that it be put up with the record on the 4th April 1955. On the 4th April 1955, the Subdivisional Magistrate was otherwise busy and it was directed that the record be put up on the 7th May 1955. On the 7th of April 1955, however, the Subdivisional Magistrate passed the following order: "The learned lawyer for the accused presses for action early. Issue notice to the complainant to appear on 24-4-1955. Show to her lawyer." 24th of April 1955, happened to be a holiday.

The matter was accordingly heard by the Subdivisional Magistrate in the presence of the complainant and the accused on the 25th April 1955. The learned Subdivisional Magistrate then recalled the order of Mr. Srivastava which had been passed on the 24th of March 1955, summoning the accused persons under Sec.323 of the Indian Penal Code, and directed that the complaint be enquired into by one Sri S. K. Hussain who should submit a report. In the same order he directed that the case way now recalled to his general file. It is against this order dated the 25th April 1955, that the present application was filed on the ground that the order of the Subdivisional Magistrate recalling the order passed by Mr. Srivastava and directing a further enquiry into the case under the provisions of Sec.202 of the Code of Criminal Procedure was without jurisdiction.

4. Mr. Sinha, in support of this application has relied upon the case of Qamarali Syed All V/s. Mt. Tuli, AIR 1938 Nag 433 (A), in which it was observed by reference to Sec.202, Criminal Procedure Code, that such a procedure cannot be adopted after evidence had been taken for the complainant and process had been issued.

It was stated that the Magistrate could not go back beyond the stage reached by his predecessor. The reason given was that a necessary preliminary to an inquiry under Sec.202 was postponement of issue of process, but where that was not done by the first Court, which in fact procured the attendance of the accused, the stage for holding inquiry under Sec.202 had passed and could not be revived subsequently.

5. Mr. Jha on the other hand, appearing for the opposite party relied upon the case of Lalit Mohon V/s. Noni Lal, 27 Cal WN 651: (AIR 1923 Cal 662) (B). In this case, on a complaint having been made, the Magistrate ordered issue of process under Sec.204, but subsequently on the same date a cross-complaint was laid and the Magistrate then rescinded the order and sent both the cases to a subordinate Magistrate for local enquiry.

It was held that the order passed by the Magistrate under Sec.204, Criminal Procedure Code, was not a judgment to w