1872 June 25.

[APPELLATE CRIMINAL.]

Before Sir Richard Couch, Kt., Chief Justice, Mr. Justice Kemp, Mr. Justice
L. S. Jackson, Mr. Justice Markby, and Mr. Justice Ainslie.

Criminal Procedure Code (Act XXV of 1861), ss. 66 § 273—Reference by District Magistrate to Subordinate Magistrate of Complaint without Previous Examination of Complainant.

A District Magistrate is not bound, on receipt of a complaint, to examine the complainant under s. 66 of Act XXV of 1861, before referring the complaint to a Subordinate Magistrate for disposal. The examination of the complainant by the Magistrate to whom the case has been referred is sufficient (1).

IN this case the accused had been convicted of the offence of using criminal force. The Officiating Sessions Judge of Hooghly, in a letter dated the 6th January 1872, made a reference to the High Court, under s. 434 of the Criminal Procedure Code, observing "the illegality, on account of which I have been called upon to make this reference, consists in the omission of any preliminary examination under s. 66 of the Code of Criminal Procedure. In all other respects and in all proceedings held in the presence of the accused, the procedure enjoined in the Code has been observed."

The case came on for hearing before Couch, C.J., and Ainslie, J.

The Court referred the following point for the decision of a Full Bench:-" Whether, on receipt of a complaint, the Magistrate of a district is bound, under s. 66 of the Criminal Procedure Code, to examine the complainant before referring the complaint to a Subordinate Magistrate.”

In making the reference the Court observed:

COUCH, C. J.-The Officiating Sessions Judge of Hooghly has sent up the proceedings of the Magistrate in this case,

Reference to the High Court, under s. 434 of the Code of Criminal Procedure, by the Sessions Judge of Hooghly.

(1) See The Queen v. Narayan Naik, 5 B. L. R., 660.

The only

in order that the fine of Rs. 10, imposed on the petitioners,
may be remitted, and the conviction quashed.
alleged irregularity in the proceedings has been the omission
by the Magistrate of the district to examine the complainants,
under s. 66 of the Criminal Procedure Code before trans-
ferring the complaint for trial to a Subordinate Magistrate.

This irregularity was held fatal to the validity of the
whole proceedings in certain cases cited by the Judge, the
principal of which is that of The Queen v. Girish Chandra
Ghose (1), in which Glover, J., delivered judgment as fol-
lows: In the first place he (the District Magistrate) did
not record the complainant's statement before referring the
case to the Deputy Magistrate, as he was bound to do under
s. 66 of the Code (Act XXV of 1861). There is an order
on the back of the petition making over the case, but
no examination of the complainant reduced into writing,' and
signed by the complainant and the Magistrate."
In the cases
of Dulali Bewa v. Bhuban Shaha (2) and of The Queen v.
Mahim Chandra Chuckerbutty (3), it has been decided that
such a departure from the rules of procedure makes the acts
of a Magistrate illegal. This case was followed by that of In
the matter of Iswar Chandra Koer v. Umesh Chandra Pal (4),
30th September 1871, one of the Judges (Ainslie, J.) dissent-
ing. On the other hand, it was held, in the case of The Queen v.
Umesh Chandra Chowdhry (5), that a transfer of a complaint

(1) 7 B. L. R., 513.

(2) 3 B. L. R. (A. Cr.), 53.

(3) 3 B. L. R. (A. Cr.), 67, overruled by The Queen v. Narayan Naik, 5 B. L. R., 660.

(4) 8 B. L. R., 19.

(5) Before Mr. Justice F. B. Kemp and
Mr. Justice E. Jackson.
THE QUEEN v. UMESH CHANDRA
CHOWDHRY.*

The 14th June 1870.
In this case the Sessions Judge of
Beerbhoom made a reference to the

High Court, under s. 434 of Act XXV
of 1861, to have the sentence of the
Deputy Magistrate quashed, on the ground
that the Magistrate of the district, with-
out examining the complainant, and reduc-
ing the examination into writing, and
signing his name as Magistrate to such
examination, referred the petition to the
Deputy Magistrate for trial, contrary to
s. 66 of Act XXV of 1861. In making
the reference, the Sessions Judge cited
as an authority the case of The Queen
v. Mahim Chandra Chuckerbutty (a).

* Reference to the High Court, under s. 434 of the Code of Criminal Procedure, by the Sessions Judge of Beerbhoom.

(a) 3 B. L. R. (A. Cr.), 67. See n. (3).

1872 QUEEN

v.

HARU.

by the Magistrate of a district to a Deputy Magistrate exercising full powers, without previously recording any examination of the complainant, was warranted under s. 66 of the Criminal Procedure Code. The first case, cited by Glover, J., does not bear materially upon the question before us. In the case of The Queen v. Mahim Chandra Chuckerbutty (1) Kemp, J., decided that, as a matter of fact, the Magistrate had no complaint before him, and Markby, J., concurred in this finding. It may possibly be gathered from the judgments that the learned Judges were inclined to hold that omission by the District Magistrate to record a complainant's examination, as required by s. 66, would invalidate all subsequent proceedings by a Subordinate Magistrate, to whom the complaint might be transferred; but this was not the point on which the judgments turned, so that it seems that there is really no authority, except that of the case of The Queen v. Girish Chandra Ghose (2), for holding the examination of the complainant before transfer of the complaint absolutely essential.

S. 273 of the Criminal Procedure Code (Act XXV of 1861), under which District Magistrates are empowered to refer complaints to Magistrates subordinate to them, in no way defines the stage at which the transfer may be made; and s. 275 makes all rules prescribed for the guidance of the Magistrate of the district applicable to proceedings by the Subordinate Magistrate. This Court, in Circular No. 6, dated 16th May 1864, paragraph 2, held that "a Magistrate may at

The judgment of the Court on this of the Procedure Code, and the Circular reference was delivered by

KEMP, J.—In the case of The Queen
v. Mahim Chandra Chuckerbutty (1) re-
ferred to by the Judge, there was a state-

ment, but it was not such a statement as
to amount to the complaint contemplated
by s. 66 of the Code of Criminal Proce-
dure.

In the case referred to us, the Magis-
trate sent the petition presented by the
complainant to the Deputy Magistrate,
who exercises the full powers of a
Magistrate. We think that, under s. 66

Order No. 6, dated the 16th May 1864, the
Magistrate of the district was justified
in making over the petition to the Deputy
Magistrate for enquiry and trial (a).

(1) 3 B. L. R. (A. Cr.), 67.
(2) 7 B. L. R., 513.

(a) But see per Kemp, J., in Iswar Chandra v. Umes Chandra Pal, 8 B. L. R., 19; and per Glover, J. (Kemp, J., concurring) in The Queen v. Girish Chandra Ghose, 7 B, L. R., 503.

once make over the complaint to be enquired into and tried by any Magistrate subordinate to him." Such Subordinate Magistrate should, in this latter case, proceed in the manner laid down by ss. 66 and 67, Code of Criminal Procedure (Act XXV of 1861).

No one appeared for the petitioners or the Crown in this case.

The judgment of the Full Bench was delivered by

COUCH, C.J.-We are of opinion that the question referred to the Full Bench should be answered in the negative. We agree in the decision in the case of The Queen v. Umesh Chandra Chowdhry (1). This case was not cited in the case of The Queen v. Girish Chandra Ghose (2), where no one appeared to support the conviction. In the other cases the point was not decided. The examination of the complainant by the Magistrate to whom the case is referred is sufficient for the regularity of the proceedings.

1872

QUEEN

บ.

HARU.

P. C.* 1871 June 22.

[PRIVY COUNCIL.]

PAHALWAN SINGH AND OTHERS (DEFENDANTS) v. MA-
HARAJAH MUHESSUR BUKHSH SINGH BAHA-
DOOR (PLAINTIFF).

MAHARAJAH MUHESSUR BUKHSH SINGH BA-
HADOOR (PLAINTIFF) v. MEGHBURN SINGH AND
OTHERS (DEFENDANTS).

ON APPEAL FROM THE HIGH COURT OF JUDICATURE
AT FORT WILLIAM IN BENGAL.

Accretion-Evidence-Civil Procedure Code (Act VIII of 1859), s. 7. The question whether land is formed by gradual accretion depends on evidence, but it would be an error in law to consider it as conclusive of that fact that the surface of the land had all been changed, and the marks all obliterated, so that no old houses, or trees, or mounds, or vestiges of boundary could be found, and that all the surface of the land was fresh land which had been brought down by the river. Lopez v. Maddan Thakur (1) commented on.

Suing for new accretions after a former suit is not a splitting of action within the meaning of s. 7 of the Civil Procedure Code.

THESE two appeals were heard together.

Both appeals arose out of two suits brought by Maharajah' Muhessur Bukhsh Singh Bahadoor against Pahalwan Singh and others to recover alluvial land in Pergunna Bhojpore. The first suit was decided in the Maharajah's favor on appeal to the High Court on the 29th April 1864; the second suit was commenced on the 24th September 1864, and was dismissed, on 17th April 1866 (2), on the ground that he might have included his claim in the first suit, and that therefore the suit was barred by s. 7 of the Civil Procedure Code.

The first of the appeals, therefore, contested the propriety of the decision on the merits being in favor of the Maharajah, the

* Present :-THE RIGHT HON'BLE SIR JAMES COLVILE, SIR JOSEPH NAPIER, LORD JUSTICE JAMES, LORD JUSTICE MELLISH, AND SIR LAWRENCE PEEL