JUDGMENT

Bennett, J - This is a reference by the learned Sessions Judge of Lucknow recommending that an order of acquittal passed by a Magistrate be set aside and the Magistrate be directed to dispose of the case on the merits. The accused in the case were two men named Nangoo and Mohammad Rafiq. They were prosecuted on charge under Section 323 read with Section 109, Penal Code, on the joint complaint of Abdul Karim and his wife, Mt. Bashiran. The Magistrate took all the evidence in the case and apparently thought that the complaint was justified, but he acquitted the acoused in view of a ruling given by Calcutta High Court in Sashadhar Acharjya v. Sir Charles Tegart, AIR1931Cal646 on the subject of a joint complaint. The Sessions Judge has referred to a later Calcutta ruling, Uzal Khan v. Purna Chandra, (39) 43 C.W.N. 527. In his explanation, the Magistrate has said that he thought he had no option but to follow the ruling in the first case as no other ruling to the contrary was brought to his notice. It was held by a Bench of the Calcutta High Court in the first case cited that a joint complaint by two persons is not contemplated by the Criminal Procedure Code, because, as is clear from Section 200, in taking cognizance of an offence on a complaint, a Magistrate must at once examine the complainant on oath and it is obvious that if there are two or more complainants, it is physically impossible to fulfil the provisions of that section. Hence separate petitions of complaint should be filed by the persons affected.

2. In the present case Abdul Karim and his wife Mt. Bashiran filed a joint complaint and they were examined on it upon oath by the Magistrate, one after the other, the substance of the examination being reduced to writing as provided by Section 200. In the later Calcutta case there was a written complaint signed by two persons, but the Magistrate examined only one of them before issuing process. The Sessions Judge thought that the procedure was illegal and that the Magistrate should have examined both the complainants before issuing process. The Bench of the Calcutta High Court which heard the reference agreed with the Bench in the earlier case that a written complaint signed by two persons is not contemplated by the Criminal Procedure Code. But they observed, however, invalid it is in form, it is a petition of complaint. The Magistrate examined one of the two persons who signed the complaint and had then before him an allegation made orally to him with a view to his taking action under the Code of Criminal Procedure that some persons had committed an offence. In other words, he had before him a complaint within the meaning of Section 4(1)(h) Criminal P.C. On that complaint he had jurisdiction to issue process and therefore the Magistrate's order summoning the accused was not bad in law. It was also said that if a written complaint is made ostensibly by two persons the Magistrate has jurisdiction to examine one of them and proceed on that examination. Should it be necessary to proceed afterwards on the complaint of the second signatory, there is no bar to such action being taken.

3. Even if I concurred in the view that there was a legal defect in the procedure arising either out of the fact that one of the complainants was not examined by the Magistrate immediately after he had taken cognizance of the offence on the complaint, or out of the fact that a joint complaint by two persons is not contemplated by the Code, I should not be disposed to uphold the order of acquittal in the present case because there is no reason whatever to think that the accused were prejudiced by such a defect. With all respect, I entertain some doubt, however, as to the soundness of the view taken by the Calcutta High Court in regard to a joint complaint. Although there is no provision in the Code that a complaint may be made by more than one person, there is also, so far as I am aware, no provision to the contrary. The definition of "compl