1. This Rule is directed against an order dated 19-4-69 passed by Mr. Md. Moseeh, Additional Sessions Judge, Chittagong rejecting a petition filed by the present petitioners under section 436, Cr. P. C.
2. Read with section 5 (6) of the Criminal Law Amendment Act, 1958.
3. The facts of the case are that after. a some preliminary enquiry one Assistant Inspector of D. A. B., Chittagong lodged First Information Report on 26-11-67 alleging that .To hundred maunds of relief wheat were allotted for distribution to the people of Satkania Union Council, that the said wheat was taken delivery- of by Opposite-Party No. 1 Ahmed Kabir Chowdhury, Chairman of Satkania Union. Council through his Secretary Opposite-Party No. 2 Syed Shafiquddin Ahmed and that out of the said quantity of to hundred maunds, 8 maunds and 34 seers misappropriated by the Chairman and the Secretary of Satkania Union Council by showing distribution thereof on 10-1-67 to bogus persons. A case under section 409, P. P. C. Was started against the opposite-parties. After investigation Police summitted final report whereupon Mr. J. C. Bhowmic, Sub-Divisional Magistrate of Chittagong passed the following order on 28-12-68: "F. R. T. Under section 409, P. P. C. Accused is discharged from Court bail. Alamat as prayed by the I.
4. O: (Sd.) J. C. Bhowmic, S. D. O. (S).
5. The present petitioners thereupon filed an application under section 436, Cr. P. C. Read with section 5 (6) of Criminal Law Amendment Act, 1958 (Act No. XL of 1958) praying for setting aside the order of discharge and to direct further investigation by other competent Police Officers. This petition was filed in the Court of Sessions Judge-cum-Senior Special Judge, Chittagong. The petition was transferred on 15-4-69 to the Court of Additional Sessions Judge for disposal and the Additional Sessions Judge by his order dated 19-4-69 rejected the petition holding, inter alia, that the order of discharge passed by the, Magistrate was an administrative order and not a judicial order and in consequence it called for no' interference under section 436, Cr. P. C. Thereafter, the petitioners obtained this Rule upon a petition filed under section 436 read with section 439 of the Code of Criminal procedure praying for setting aside the order of the learned Additional Sessions Judge and for sending the case on remand for further inquiry by some other Police Officer with direction to submit to report to the Special Judge, Chittagong.
6. Mr. Abdul Aziz appearing on behalf of the petitioners contended that since it was a. Case against Public servants which was to be tried under the provision of Criminal Law Amendment Act, 1958, subsection (1) of section 4 of which Act, empowered the Special Judge to take cognizance of any offence tried under the Act, the Sub-Divisional Magistrate had no jurisdiction to accept the final report submitted by the police arid discharge the accused-opposite-parties. His, further contention is that the order of discharge passed by the leaned Sub-Divisional Magistrate was not an administrative order but a judicial order and the Additional Sessions Judge committed an error be treating the order of discharge as an administrative order.
7. Khan Bahadur Md. Lsmail appearing on behalf of the opposite --parties contended, on the other hand that the present petition is not maintainable as the relies claimed by the petitioners do not come within the ambit of section 439 Cr. P. C. Sections 436, and,439 Cr.P.C. Areas follows: ---436 On examining any record under section .435 or otherwise, the High Court or the Session Judge way direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct ;any Subordinate Magistrate to make further inquiry into any complaint which has, been dismissed under section 203 or subsection (3) of section 204, or into case of any person accused of an offence who has been discharged:--- Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.
8. 439 (1) In the case of any proceedings the records of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a, Court by section 338, and may enhance the sentence and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
2. No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
3. Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have inflicted for such offence by a Presidency Magistrate or a Magistrate of the class.
(4) Nothing in this section applies to an entry made under --section 273, or shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction."
9. Section 436 empowers the High Court and the Sessions Judge to direct further inquiry by a Magistrate including a District Magistrate into any complaint which has been dismissed under section 203 or subsection (3) of section 204 or into the case of any person accused of an offence who has been discharged. This section does not contemplate issuance of an order by the High Court or the Sessions Judge calling upon a Police Officer to hold further inquiry and to submit report to the Sessions Judge or Special Judge. Hence the prayers made by the petitioners viz. To send back the case for further inquiry by some other Police Officer and to direct the said Police Officer to submit report to the Special Judge, Chittagong do loot come within the purview of section 436, Cr. P. C. Section 439 empowers the High Court to exercise any of the power, conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338 and also, empowers the High Court to enhance the sentence. The prayers made by the petitioners do not also come within powers conferred on a Court of Appeal and as such they are beyond the scope of section 439, Cr. P. C.
10. Mr. Abdul Aziz, however; contended that even if the prayer s for directing further inquiry by some other Police Officer and for directing the said Police Officer to submit report to the Special Judge cannot be granted under section 436 or section 439, Cr. P. C., the order of the learned Additional Sessions Judge rejecting the petition filed under subsection (6) of section 5 of the Criminal Law Amendment Act is liable to be set aside on the ground that he had no jurisdiction to dispose of the said petition. According to Mr. Abdul Aziz the petition should have been disposed of by the Sessions Judge-cum-Senior t Special Judge himself as he had no authority to transfer the same to the Additional Sessions Judge for disposal. He, therefore, prays for setting aside - the impugned order and for directing the Senior Special Judge to dispose of the petition in accordance with the law.
11. The petition filed under subsection (6) of section 5 of the Criminal Law Amendment Act was transferred by the Senior Special Judge to the Court of Additional Sessions Judge for disposal.
12. Under proviso to subsection (3) of section 4 of the Criminal Law Amendment Act the Senior Special Judge may, by order in writing, transfer, at any stage of the trial, any case from the Court of one Special Judge to the Court of another Special Judge having jurisdiction within the same territorial limits. This proviso empowers the Senior Special Judge to transfer any case at any stage of the trial (underlining' is mine) from the Court of one Special Judge to the Court of another Special Judge but it does not empower nor is there any other provision in the laid Act empowering the Senior Special Judge to transfer a petition filed before him to the Court of another Special Judge for disposal. It may be noted that the petition was transferred for disposal not even to a Special Judge but to an Additional Sessions Judge and he disposed of the same as an Additional Sessions Judge and not as a Special Judge. Even if it could be argued that an Additional Sessions Judge is also an Ex Officio Special Judge and hence the order passed by the Additional Sessions Judge may be treated as an order passed by a Special Judge, that would not cure the illegality in this case for, as already stated, the Senior Special Judge had no power under the Criminal Law Amendment Act to transfer the petition in question to even a Special Judge. The impugned order passed by the Additional Sessions Judge was therefore illegal and without jurisdiction.
13. The question that now arises for consideration is whether any useful purpose would be served by setting aside the impugned order and by directing the Senior Special Judge to dispose of the petition himself in accordance with the law. The answer to this question depends on the question as to whether the Senior Special Judge could direct further investigation into the case against the opposite-parties. Mr. Abdul Aziz contended that since subsection (1) of section 4 of the Criminal Law Amendment Act empowered only a Special Judge to take cognizance of an offence under the Act, the Sub-Divisional Magistrate committed an illegality by discharging the opposite---parties after taking cognizance on the basis of final report of Police and in the circumstances the Senior Special Judge of Chittagong should have directed investigation by some other Police Officer in accordance with the provision of subsection (6) of section 5 of the said Act. The provisions of subsection (1) of section 4 and subsection (6) of section 5 of the said Act are as follows:- "4 (1). A Special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the official Gazette and may take cognizance of any offence committed or deemed to have been committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer.
14. 5 (6). For the purpose of trial before a Special Judge, the provisions of Chapter XVIII of the Code of Criminal 'Procedure, Code shall not be applicable, but a Special Judge may, in any case where he deems it necessary order an investigation by any police officer in whose jurisdiction the offence was wholly or partly committed."
15. Subsection (1) of section 4 of the Act empowers a Special Judge to take cognizance of the offence under the following circumstances:
(a) Upon receiving a complaint of facts which constitute an offence, or
(b) Upon a report is writing of such facts- mach by any' police officer.
16. In this case there was neither a compliant it of -facts which constituted an offence under the Act nor any report .By a police officer before the Senior Special Judge, Chittagong an consequently he was not competent to take cognizance of any offence alleged to have been committed by the opposite-parties under, the Act and if he was not in a position to take cognizance of the alleged offence he could not direct a police officer to investigate the case in accordance with the provision of subsection (6) of section 5. In my view subsection (6) of section 5 should be read along with subsection (1) of section 4 and if this is done it follows that the power of the Special Judge to direct investigation can be invoked only after he has taken cognizance in accordance with the provision of subsection (1) of suction 4. In the instant case, therefore, the Senior Special Judge of Chittagong could not pass an order on the petition filed order subsection (6) of suction 5 of the Criminal Law Amendment Act. Hence no awful purpose would be served by directing the Senior Special Judge to dispose of the petition himself.
17. 'Mr Abdul Aziz vehemently contended that the learned Additional Sessions Judge was wrong in holding that the order of discharge passed by the Magistrate was an administrative order. It appears that ova the basis of a decision in the case of Sardar and other v. Muhammad Nawaz and another (PLD 1949 Lah. 537) the learned Additional Sessions Judge came to tape finding that the order of discharge was an administrative order and not a judicial order. Unfortunately, his attention was not drawn to a decision of a Division Bench of this Court in the case of Abu and others v. Haji Abdul Gani and others (1962 P L R (Dacca) 1329) wherein it was held; following upon the decision in the case of J. D. Boywalla v. Sorab Rustomji Engineer (AIR 1941 Born. 294), that an order of discharge passed by a Magistrate on a police report is a judicial order.
18. Be that as it may it follows from what hat a been stated above that the reliefs sought for by the petitioners cannot be granted. The Rule is accordingly discharged.