JUDGMENT
Mitter, J.
1. We are of opinion that the order complained of must be set aside. The first point that was urged before us was that no notice of the application upon which the order in question was passed was given to the petitioner. The complainant’s vakil, who appeared before us in support of the order of the Sessions Judge, admits this defect. The order is therefore bad upon this ground. The second objection taken before us is that the Sessions Judge, under Section 437, has no power to direct a particular Magistrate by name to make the further enquiry contemplated in that section. It appears to us that this contention is also well founded. The language of Section 437 leaves no room for doubt that the Sessions Judge has not the power which he has exercised in this case, viz., of directing a particular Subordinate Magistrate by name to make the further enquiry under this section. The third point taken before us, and upon which we think the order must be altogether set aside, is that the complainant did not complain to the Sessions Judge that he was not allowed to adduce before the Magistrate any evidence which he was ready to adduce, or which he, being in a position now to adduce, would adduce, if a further enquiry were made. It does not appear that any additional evidence would be forthcoming if the order of the Sessions Judge were to be carried out. Section 437 contemplates a further enquiry, that is to say, allowing the complainant to adduce further evidence when necessary on a further enquiry, but this is not what the complainant in this case asked for. What the complainant asked for was to remand the case to the lower Court for the purpose of retaking the evidence that had been already taken, and for the Magistrate to come to a decision upon the evidence so taken. That is not what is contemplated by Section 437.
2. We are, therefore, of opinion that on all these grounds the order which has been passed is bad in law, and we accordingly set it aside.
Field, J.
3. I also think that the order complained of must be set aside. In the first place no notice was given to the petitioner before us, and an order affecting him in a criminal matter ought not to have been passed without giving him an opportunity to appear and show cause. In the second place the Sessions Judge has directed a particular Subordinate Magistrate by name to make the further enquiry. The words of Section 437 are that the Court of Session may direct the Magistrate by himself or by any of the Magistrates subordinate to him to make further enquiry. It is clear that the order ought to have been made in these words. The Legislature appears to have contemplated that the Magistrate of the district should exercise a discretion as to the selection of any Magistrate subordinate to him, and this discretion seems to have been vested in the District Magistrate, and not in the Sessions Judge. In the third place Section 437 contemplates a further enquiry, that is, as I understand it, an enquiry upon further materials or further evidence, not a rehearing of the matter upon the same evidence which was before the Magistrate who held the first enquiry. Now in this case there was no contention that further materials or further evidence was forthcoming; and, although the Magistrate who first made the enquiry left three witnesses named in the petition of complaint unexamined, no contention was raised before the Sessions Judge that these persons ought to have been examined, or, if examined, would have thrown further light; upon the case. I therefore agree in setting aside the order.
