JUDGMENT
1. This was a Reference made by the learned Sessions Judge of Dinajpur recommending that the order passed by the Deputy Magistrate at head-quarters under Section 476, Criminal Procedure Code, directing the trial of the complainant under Section 211 and sending the case to the District Magistrate for orders should be set aside. At the same time, he informed us that there was a motion before him to order further inquiry into the matter. He did not think it proper to deal with it himself because it might prejudice our order in regard to the matter under Section 476, Criminal Procedure Code. He says it seemed to him that the proper course to take was to submit this Reference for decision before proceeding to dispose of the other motion.
2. We need not, therefore, go into the point of necessity for further inquiry under Section 203, as we have dealt with it in a similar case to this in a somewhat lengthy judgment delivered this morning, in which we pointed out that the Government Circular, with regard to. inquiries into complaints against Police officers, has been greatly misunderstood, that that Circular cannot be held to refer to any kind of local investigation under Section 202, Criminal Procedure Cods, and that the local investigation which it mentions is a full and complete judicial inquiry on the spot after process issued and hearing witnesses on both sides and taking the explanation of the accused person.
3. It is clear that the accused person cannot be called upon for explanation nor can he be called upon to produce witnesses unless and until there is ground for issuing process against him, and the law says that if upon complaint there is ground for issuing process against him, the Magistrate shall issue summons for the attendance of the accused. That is. Section 204. The idea seems to have been that the Police officer might have an opportunity of defending himself and getting his accused charged with bringing a false case without a trial, that is to say, judicial trial. Now that would be as unfair to the complainant as the converse procedure would be to the accused. We must take it that the Government intended that both sides should have full and free justice, and, therefore, when a complaint is made against a Police officer of a certain offence, under Section 2)2, the Magistrate who entertains the complaint must either go to the spot and make inquiry himself and issue process if he finds it necessary to call upon the accused to answer to. anything, or if he makes it over under Section 192 to any other Magistrate of the first class, that Magistrate must be vested with full seizin of the case and must continue the inquiry up to the necessary order of discharge, acquittal or conviction, as the case may be. But that is hardly the point which the learned Judge has referred to us. This is a point which he will have to deal in the light of the remarks which we have just made.
4. The point which he makes is that the Deputy Magistrate at head-quarters had no power as such to transfer the investigation to the Sub-Divisional officer of Balmghat, and the District Magistrate on his explanation has frankly admitted that this is so; but, as he points out, an error made in good faith is cured by Section 529. Granted that this is so, this Sub-Divisional officer was vested with full seizin of the case and he alone can inquire into it and pass final orders. Bat this is just what the petitioner in this case intended to avoid when he went to the District Magistrate with his complaint; and it appears to us that the reasons which weighed with the District Magistrate in allowing him to make his complaint before the officer at head quarters, are equally cogent now. Nothing has occurred since to render it the less desirable that some officer other than the local officer at Balmghat should make this inquiry. The cure of the erroneous order of transfer by Section 529 would only give the Sub-Divisional officer, as we have seen, jurisdiction; it could not confer jurisdiction on the Deputy Magistrate at head-quarters to re call the case to be dealt with under Section 203 or pass any orders under Section 476. All those orders, therefore, are ultra vires and without jurisdiction. Whether there should be a further inquiry into the case or not is a matter which the Sessions Judge will now, no doubt, have no difficulty in deciding. But we must make the Rule absolute as far as this Reference is concerned and hold with the learned Judge that the order for prosecution under Section 476 is without jurisdiction and must be set aside.