1. SHAHABUDDIN, J.-This is an appeal by special leave from the judgment of the High Court of Dacca by which an order passed by a Second Class Magistrate, Dacca discharging the appellant under section 253, Cr. P. C. Was set aside and the case was sent back for being proceeded with in accordance with law.
2. The first respondent Mohammad Wahiduzzaman presented to the S. D. M. (South) a complaint dated the 21st June 1954 against "N. J. Khan for Meher Industries Limited, Kaoran Police Station.
3. Tejgaon, Dacca", alleging "(1) that in order to avoid inundation of the land belonging to the complainant and others a culvert had been constructed on the road closeby ;
(2) that the complainant had learnt that the accused recently purchased some amount of land nearabout the above-stated pucca culvert and in order to improve his own land without caring for the interest of local people and their lands wrongfully closed the culvert in spite of vehement protest and this resulted fn the inundation of about 300 bighas of land and several homesteads ;
(3) that after dismantling the culvert the accused dishonestly removed the materials and bricks and though the matter was reported to the authorities concerned no action was taken ;
(4) that the accused had committed offences under sections 432, 291, 379 and 427, P. P. C. The prayer was that "processes may be issued against him and he may be punished according to law after hearing this complainant and his witnesses.
4. On the 23rd June, 1954 the statement of the complainant on oath was recorded by S. D. M. And therein he stated that the culvert had been put up to drain out water from his and other lands that the culvert was closed by the accused on 7th May, 1954 that he and others requested the accused to remove the obstruc--tion to the drainage but that "he put it off and asked us to vacate the area".
5. On this material summons was ordered to issue to N. J. Khan for Meher Industries and as no one appeared on the due date warrant for arrest was issued, thereupon the appellant, Begum N. J.
6. Khan appeared before the S. D. M.
7. She is Najmun Jinnatara Khan, wife of Mr. M. E. Khan Proprietor Meher Industries. Her Advocate pointed out that it was obvious from the complaint that she was not the accused, but a petition was filed on behalf of the prosecution that this appellant was the person indicated in the complaint and the S. D. M. Accepted this contention, registered the case, transferred it to Mr. A. R. Choudhury, Second Class Magistrate for disposal, who after hearing arguments on both sides discharged the appellant observing that it was clear from the complaint that it was against a male accused and therefore it was improper to proceed against the appellant who is a woman. The complainant thereupon filed a petition before the A. D. M. Who took the view that the order complained against was justified and there was no reason for interference. The complainant thereupon went up in revision to the High Court.
8. The learned Judge who heard the revision petition proceeding on the basis that the appellant was the proprietress of Meher Industries, held that the complaint alleged that she had mis--chievously closed the culvert and that the Second Class Magistrate was therefore not justified in discharging the appellant. He observed as follows :- "This is an unfortunate case and its misfortune has been aggravated by the remissness on the part of the Magistrate. On perusal of the record what stands out most prominent is that the Magistrate's imagination ran riot, exploring some avenues for dismissal and eventually by dint of relentless struggle succeeded in exploring that the complaint was directed not against Mrs. N. J. Khan but against her husband Mr. N. J. Khan. The same objection was raised before the Sub-- Divisional Magistrate who on being satisfied that the complaint was directed against Mr. N. J. Khan and not against her husband turned down the objection with the remark that there was no question about the identity of the accused-opposite-party. The Sub-Divisional Magistrate who recorded the initial statement was the best person to understand against whom the complaint was being made and when he was satisfied that the complaint was directed against Mrs. N. J. Khan Mr. Chowdhury ought not to have discharged the accused on the question of identity. Then again the reason given by him (Mr. Chowdhury) for discharging the accused-opposite-party is shockingly shabby and inherently unconvincing. In the initial statement the complainant appears to have said "I also requested the accused to remove the block in the drainage. He put it off and asked us to vacate the area."
9. Mr. Chowdhury has laid much stress on the word 'He' and observed that this pronoun alone is sufficient for the inference that the complaint was directed against Mr. N. J. Khan and not against Mrs. N. J. Khan. But a little diligence on his part would have enabled him to find out that Mrs. N. J.
10. Khan is the proprietress of the firm "Meher Industries" and in the initial state--ment the accused was described as such. This is not all. Mr. Roy after obtaining instruction from a person possibly an agent of his client tells me that the initial statement was made in Bengali. If that is so, the Magistrate ought not to have laid any stress on the word "He".
11. Mr. Brohi on behalf of the appellant contended, and we think rightly that the order of the learned Judge is not relatable to the materials on record and that the discretion vested in the High Court under section 439, Cr. P. C. Was not judicially exercised. The observation that a little deligence would have enabled the Magistrate to discover that Mrs. N. J. Khan is the proprietress of Meher Industries and that she was so described in the complaint is obviously incorrect. As stated already the description of the accused in the complaint is N. J. Khan for Meher Industries and in the statement recorded from the complainant the accused is described as proprietor and not proprietress. The complaint and the statement on oath of the complainant therefore indicate that the accused was a man. We are unable to accept the argument of the learned Advocate for the complainant that pronoun "He" was used inadvertently by the Advocate who drafted the complaint. No affidavit from that Advocate has been filed, only the com--plainant has filed an affidavit to that effect. The learned Judge observed that the S. D. M. Who recorded that statement on oath from the complainant was the best person to understand as to whom the complainant was referring and yet he finds fault with the Magistrate who discharged the appellant for laying stress on the fact that in the statement recorded by the S. D. M. The word 'he' occurs with reference to the accused. The fact that that statement was made in Bengali does not make a difference as it is not the case of the complainant that the S. D. M. Did not know Bengali. When the S. D. M., the best person to under--stand the complainant, took him to refer to a male, we fail to see how the Magistrate who discharged the appellant can be said to have allowed his imagination to run riot and explored avenues for the dismissal of the complaint when he came to the conclusion that the complaint was against a male and not a female accused. If the complainant had intended to proceed against the appellant he would have expressed himself to that effect to the Advocate who drafted the complaint and the S. D. M. And they would not have while referring to the accused used the pronoun `he' in the complaint and the sworn statement respectively.
12. It is true that where the High Court has exercised its discre--tion in revision this Court does not ordinarily interfere. But it is clear from the circumstances adverted to above that the discretion in this case has not been judicially exercised.
13. We, therefore, set aside the order of the High Court and restore the order of the Magistrate discharging the appellant.
14. Lower Court's order restored.