The main legal point established is that the Magistrate must exercise judicial discretion in issuing process, considering the provisions of the Code and the materials before him.

JUDGMENT

Page, J. - This case raises a question of importance relating to the jurisdiction of a Magistrate to issue process in a criminal case.

In the Or. P. C. (Act V of 1898 as amended) it is provided:

2. Section 202(1).---"Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been transferred to him u/s 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a Police Officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint:

3. Provided that no such direction shall be made:

(a) unless the complainant has been examined on oath under the provisions of Section 200, or

(6) where the complaint has been made by a Court under the provisions of this Code.

4. Section 203.---"The Magistrate, before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of any investigation or inquiry u/s 202, there is in his judgment no sufficient ground for proceeding, In such case he shall briefly record his reasons for so doing."

5. On the other hand, if the Magistrate is of opinion that "there is sufficient ground, for proceeding" it is his duty to issue process on the person or persons against whom the complaint has been preferred: Sections 190, and 204.

6. The material facts are as follows:

7. On the 5th March 1925, one Subal Chandra Namadas laid a complaint in writing before the Magistrate at Tangail that, three named persons " and about 20others" had allowed their cattle to graze on kalai growing in a field in the complainant's possession, and also had taken away, some kalai from the field. Upon this complaint Mukram Pramanik and Ibrahim Khan, two of the three persons whose names were mentioned in the complaint, were duly tried by a Second Class Magistrate at. Tangail u/s 426 of the Indian Penal Code, and on the 2nd of September 1923, were acquitted. Subsequently, on September 10th, 1925, the complainant preferred another complaint in writing before a First Class Magistrate at Tangail against the petitioners Rostam, Ahadullah, Kalimuddi and "others, 23 in all," that they had let loose 48 cattle on the complainant's field and "caused a loss of Rs. 30. I filed case against two accused but they have been ,: acquitted."

8. The Magistrate upon this complaint: issued a summons to Ahadullah and another; person to answer a charge u/s 42tv Indian Penal Code. The Sessions Judge of Mymensingh, being of opinion that the Magistrate had no jurisdiction to issue process upon the petitioners so long as the...acquittal of the persons who already had; been tried upon the same charge and on; the same facts stood good, has referred the matter to the High Court u/s 438, Cr. P. C. The question to be determined is whether the Magistrate was justified in law in issuing process upon the petitioners.

9. Now, under the Cr. P. C. a wide discretion is given to Magistrates with respect to the grant or refusal of process, and in the interest of the community generally it is essential that Magistrates should be vested with an ample discretion in respect of the issue of process. Except as otherwise provided by Statute anybody is entitled to prefer a complaint in a Criminal Court, and in India, where the Grand Jury system does not exist as an additional shield to innocent persons against whom unfounded complaints are laid in a Criminal Court, it is specially necessary, as is well stated in the Oudh Criminal Digest (page 7) that " caution and discretion should be used in issuing summonses. An accused person ought not to be dragged off to answer a