JUDGMENT Panckridge, J. - This Rule was issued on August 15th, 1932, and calls on the District Magistrate of Midnapore and the opposite parties to show cause why the order of the Additional District Magistrate dated June 13th, 1932, dismissing the Petitioner's complaint u/s 203 of the Code of Criminal Procedure should not be set aside. The opposite parties are described as "Rahatbux Chaudhuri, "Sub-Inspector of police, and Sheikh Kalu, police "constable, and two other police constables of "Midnapore thana." 2. On April 30th, 1932, Mr. Douglas, the District Magistrate, was assassinated at Midnapore. At about 11 p.m., that night, the Petitioner who describes himself as a "home internee" was arrested and taken to the Midnapore thn. It is admitted that he was then, to all appearance, in good health. He was produced before a Deputy Magistrate on May 1st, and, on May 2nd, remanded by the Additional District Magistrate to police custody until May 5th. Late in the evening of May 3rd, the Civil Surgeon, Capt. Drummond, was summoned to the thn to attend the Petitioner. He found the Petitioner in a hysterical condition and exhausted. There were also some bruises visible on his person. They were not severe, nor did they require treatment, but, according to Capt. Drummond, they must have been due to some sort of violence. The Petitioner, on that occasion, made no complaint against the police. The next morning, May 4th, Capt. Drummond saw the Petitioner again and found him suffering from fever. At 6 p.m., the Petitioner was removed to hospital, where he developed pneumonia. He was discharged from hospital, on May 21st, 1932. On that day, he filed a written petition of complaint in Bengali and was examined in support of it on solemn affirmation. He stated that he was severely beaten at the thn on the evening of May 3rd by "one droga known as "Chaudhuri Sheb and three siphis." 3. The Additional District Magistrate referred the complaint, u/s 202 of the Code of Criminal Procedure, to the Sub-Divisional Officer for enquiry and report. For reasons that are not material, the enquiry was eventually held by Mr. Islam, Deputy Magistrate, who submitted his report on May 27th. On June 13th, the Additional District Magistrate dismissed the Petitioner's complaint u/s 203 of the Code of Criminal Procedure. For reasons that are not material, the enquiry was eventually held by Mr. Islam, Deputy Magistrate, who submitted his report on May 27th. On June 13th, the Additional District Magistrate dismissed the Petitioner's complaint u/s 203 of the Code of Criminal Procedure. On June 25th, 1932, the Sessions Judge of Midnapore refused to interfere with the order of dismissal. 4. The first ground, on which the Rule has been issued, is that the Deputy Magistrate acted illegally in examining the first accused and the police witnesses in the absence of the Petitioner and his lawyers and in calling for a report from the Superintendent of Police. 5. Mr. Islam's report shows that, on May 25th, he examined Bhupendranath Banerji, the Officer-in-charge of the Midnapore police station, Rahatbux Chaudhuri, the Sub-Inspector of police, Narayan-garh, and Kirancharan Raha, Circle Inspector. 6. It is said that Rahatbux Chaudhuri was examined on solemn affirmation, but this is denied, I think rightly, by the opposite parties. 7. The story told by these deponents was that Rahatbux Chaudhuri was in Midnapore by chance on May 3rd, when Bhupendranath Banerji asked him to assist in the investigation into the murder of Mr. Douglas by examining the Petitioner. Rahatbux Chaudhuri consented, but, while he was questioning the Petitioner, the latter became violent and hysterical and assaulted Rahatbux, who called to the constables to secure the Petitioner. This was done, but the Petitioner's struggle were so violent that he sustained injuries. Ice was sent for, and the Circle Inspector communicated with the Superintendent of Police, Mr. Evans, who saw the Petitioner in the company of the Civil Surgeon. The procedure adopted by the magistrate has been vigorously criticised by learned Counsel for the Petitioner. We have been referred to Baidya Nath Singh v. Muspratt (1886) ILR 14 Calc. 141., Bhim Lal Sah v. Emperor (1912) ILR 40 Calc. 444., Balai Lal Mukerjee v. Pasupati Chatterjee (1916) 21 C.W.N. 127. and Chandi Charan Mitra v. Manindra Chandra Roy Chowdhury (1922) 27 C.W.N. 196. 8. It is suggested that a magistrate, to whom a complaint is referred for inquiry, acts illegally if he examines or questions the person complained against. I cannot agree with this; no such limitation is suggested in the language of the section, and I see no reason to dissent from the view expressed in In re Virbhan Bhagaji (1928) ILR 52 Bom. I cannot agree with this; no such limitation is suggested in the language of the section, and I see no reason to dissent from the view expressed in In re Virbhan Bhagaji (1928) ILR 52 Bom. 448., that such a procedure is not illegal. It appears to me that, to prevent the magistrate from questioning the person complained against, at any rate for the purpose of ascertaining what his answer is to the charge, if he has one, would be, in many cases, to render the enquiry futile. It is easy to imagine cases where information that the accused alone can furnish will conclusively prove the falsity of the complaint. But to hold this is not to hold that it is right for a magistrate to examine the accused and then, after argument, to make up his mind which of two rival stories he will accept. I consider that, although the magistrate was justified in examining the three police witnesses including the first accused, he was wrong in permitting the accused to be represented by lawyers and to argue that the complaint should be dismissed. This seems to me to be precisely the course that has been condemned in Bhim Lal Sah v. Emperor (1912) ILR 40 Calc. 444., Balai Lal Mukerjee v. Pasupati Chatterjee (1916) 21 C.W.N. 127. and Chandi Charan Mitra v. Manindra Chandra Roy. Chowdhury (1922) 27 C.W.N. 196. In my opinion, the Petitioner may justly urge that he is entitled to test the evidence of the two police witnesses, other than the first accused, by cross-examination, and this he can only do satisfactorily in a formal trial. 9. The Additional District Magistrate states in his order that he leaves out of his consideration the evidence of the three witnesses, to whom I have referred. He, however, as appears from the order sheet, permitted a lawyer to address arguments to him on the accused's behalf. The Additional District Magistrate states that the case depends on the uncorroborated statement of the complainant himself. This is true, if by that is meant that the complainant is not in a position to produce any eye-witness in support of his story. But the case is one, in which from its nature, the production of an eye-witness is not to be expected. The failure of the Petitioner to name his assailants at an early stage seems significant to the magistrate. But the case is one, in which from its nature, the production of an eye-witness is not to be expected. The failure of the Petitioner to name his assailants at an early stage seems significant to the magistrate. In my opinion, little importance should be attached to this, for it is admitted that it was on the orders of the first accused that the constables forcibly restrained the Petitioner. Moreover, I do not understand that it is denied that Sheikh Kalu was one of those constables. 10. In the proceedings strong comment is very properly made on the fact that neither on May 3rd, nor May 4th, did the Petitioner complain of maltreatment to the Superintendent of Police or to the Civil Surgeon. This is an aspect of the matter that demands the most careful consideration, but, in my judgment, the Petitioner should be given an opportunity of meeting this point and he will have such an opportunity if cross-examined in court. I do not consider that, without any explanation on his part, his conduct in this respect so clearly demonstrates the falsity of his complaint that he should be refused process. 11. For the reasons I have given I hold that the order of dismissal complained against should be set aside and a further enquiry directed into the Petitioner's complaint. The Rule is made absolute. 12. It is desirable that the enquiry should be held by some magistrate who has not yet been concerned with the case. Patterson, J. 13. I agree.