1. A preliminary objection has been taken that the petition will not lie under the Criminal Procedure with reference to Debi Bux Shroff v. Jutmal Dungarwell (1899) I.L.R. 27 C. 126 and previous cases including Charoobala Dabee v. Barendranth Mozumdar (1906) T.L.R. 33 C. 1282,
2. The course of authority in Calcutta has not been consistent. In this Presidency the point was raised in the case reported at VI Weir 255, but was not decided. I have however allowed the petitioner to amend his petition by inserting a reference to Section 15 of the Charter Act. And, as I find that it can be supported on the merits with reference to that provision it is not necessary to decide whether I have jurisdiction under the Criminal Procedure Code also.
3. The petitioner charged the accused with offences punishable under Sections 498 and 497 I. P. C, The Magistrate declined to grant summons, in effect dismissing the complaint under Section 203 of the Criminal Procedure Code. His recorded reasons included nothing resembling a finding that the charges were false. They were only that gross delay had occurred and that the charges were made for ulterior and improper motives. Section 203 authorises the Magistrates to dismiss in case he finds no sufficient ground for proceeding. But the decision whether there is sufficient ground must be reached by the exercise of discretion, based on judicial considerations. That the Magistrate considered the probable result of proceeding undesirable or the motives and conduct of the complainant discreditable are not relevant considerations. In the matter of the Petition of Ganesh Narayun Satte (1889) I.L E. 13 B. 590. In the absence of any finding that the complaint was false or unsustainable on the evidence likely to be available, the passing of the order of dismissal constituted an irregularity with which this Court has under Section 15 of the Charter Act jurisdiction to deal.
4. The order must be set aside and the complaint remanded to the Chief Presidency Magistrate for disposal according to law by him or such other Presidency Magistrate as he may direct.