Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Dwaeka Nath Mondul vs Beni Madhab Banerjee on 18 February, 1901
Equivalent citations: (1901) ILR 28 Cal 652
Author: Maclean
Bench: F W Maclean, K.C.I.E., Prinsep, Ghose, Hill, Sale, Harington, Brett


Maclean, C.J.

1. I have heard nothing in the argument addressed to us to warrant me in changing or even qualifying the opinion I expressed in the ruling in the case of the Queen-Empress v. Dolgobind Dass (1900) I.L.R. 23 Cal. 211; (S.C.) 5 C.W.N. 169 and I adhere to that ruling. The argument in this case, however, has led me to doubt, whether the principle I have enunciated ought not to be held to apply to the case of a Mofussil Magistrate equally with that of a Presidency Magistrate, and whether the authorities which would appear to decide the contrary are well founded in law. That question is not before us to-day.

2. I answer the question by saying that a Presidency Magistrate is competent to re-hear–I do not like the expression ” revive,” though I am aware it has been frequently used–a warrant-case triable under Chapter XXI of the Code of Criminal Procedure in which he has discharged the accused person.

Prlnsep, J.

3. I am of the same opinion. I think it necessary, however, to add a few words on my own behalf in connection with the question raised before us.

4. I have, since 1877, in the case of Empress v. Donnelly (1877) I.L.R. 2 Cal. 405 invariably held the opinion that there was no restriction to a Magistrate trying a case in which there had not been a final order, such as an order of acquittal or conviction. There is, however, one case which has been brought to my notice in which a different opinion has been expressed, the case of Opoorba Kumar Sett v. Sreemutty Probod Kumary Dassi (1893) 1 C.W.N. 49. That, however, was not a point necessary for the decision of that case; and I may state that the observation escaped my notice. I certainly never intended to modify the opinion that I had formerly expressed on the subject.

5. The question incidentally arose again in the case of Hari Dass Sanyal v. Saritulla (1888) I.L.R. 15 Cal. 608 and while agreeing with the majority consisting of six Judges of this Court on the point referred to the Full Bench, I differed on another point, which is the point now under consideration: this had been incidentally noticed in the judgment of the Court, which was pronounced by Mr. Justice Wilson and formed a portion of his statement of the law. I then expressed the opinion that there was nothing in the law to prevent a second Magistrate from hearing a complaint in proceedings in which an order dismissing it or discharging an accused person had been made, that not being a final order in the case which could be pleaded in bar. The point has been again raised in the present case, although it was not one on which the reference was made.

6. The learned Counsel who appeared in support; of the Rule–and it is much to be regretted that there was no argument on the other side– contended, that, inasmuch as no Provincial Magistrate was competent to revive, or, stating it more correctly, to hear the complaint in a matter Which had been already dealt with by an order of dismissal, or discharge, the same rule would apply to a Presidency Magistrate. If the case-law on the subject be examined, it will be seen that under the Code of 1872 it was frequently held that a Magistrate could hear a complaint under such circumstances, but this Court thought proper to restrict the exercise of this power to cases in which fresh evidence was forthcoming. The cases to which I refer are Hari Singh v. Danesh Mahomed (1873) 20 W.R. Cr. 46 Kistoram Mohara v. Anis (1873) 20 W.R.Cr. 47 Reg. v. Devama (1875) I.L.R. 1 Bom. 64 Empress v. Donnelly (1877) I.L.R. 2 Cal. 405 and In the matter of Dijahur Dutt (1879) I.L.R. 4 Cal. 647. In this respect, as in the case now before us which has led to this reference, the High Court has interposed, so as to prevent the exercise of jurisdiction by a Magistrate, where the law itself has expressed no intention directly so to limit it. Section 403 of the Code of Criminal Procedure, which is the only section dealing with this subject, declares that an order of acquittal or conviction shall be a bar to further proceedings, and it specially excepts from these terms a case such as the one now before us.

7. But it has been argued that an order dismissing a complaint or discharging an accused person is a judgment within the terms of Chapter XXVI of the Code of Criminal Procedure, and that by reason of Section 364 the Court, which passed the judgment, is unable to alter or review it. Now, here I would state that in my opinion such an order is not a judgment within the terms of Chapter XXVI. Section 367 explains what constitutes a judgment, and it clearly indicates to my mind that a judgment within that chapter is only a judgment of acquittal or of conviction. In the case of an order of discharge, or in the case of an order dismissing a complaint, it is expressly required by the law that the Magistrate shall state his reasons, and I therefore take it that if it had not been so required, it would have been unnecessary for a Magistrate to state any reasons for his order. Consequently in this point of view the order would not constitute a judgment. And it seems to me also that the expression ” judgment ” itself indicates some final determination of the case which would end it once for all, such as an order of conviction or acquittal.

8. In regard also to the argument which has been addressed to us on the subject, I would draw attention to the terms of Section 437 of the Code of Criminal Procedure, which enable a superior Court to order a further inquiry into a complaint that had been dismissed under Section 203 of the Code, that is summarily dismissed, merely on the examination of the complainant, without hearing his witnesses, or under Section 204, Sub-section 3, that is to say a complaint which has been dismissed on default of the complainant to pay the necessary process fee within a reasonable time or in a case in which the accused has been discharged. It seems to me, therefore, that any argument which may be directed towards any one of these orders must be equally applicable to all three. I cannot understand from this point of view why it is necessary to apply to a superior Court before a Magistrate can hear a complaint, in which he has acted arbitrarily or hastily in dismissing it on the ground that the process-fee has not been paid within the time fixed by him, if he should be afterwards satisfied that the delay was not due to neglect, but was due to some reasonable cause. I cannot understand why obstacles should be placed in the administration of Justice, and why a complainant should not be entitled to require a Court to try a case before it and to hear all his evidence, if the complainant can satisfy it that he has good grounds for his complaint. What would be the position of any Magistrate, if, after an order dismissing a complaint or discharging the accused had been passed, the complainant appeared before him with another complaint and asked for its trial. The order of dismissal or discharge could not be pleaded as a bar to the proceedings under Section 403. But it is the law, as it has been declared by the reported oases, that has raised an impediment. The High Court has thought proper to hold that such an order must be set aside by a superior Court before any Magistrate can proceed to hear such a complaint. But I have never been able to agree to this view, for it has,seemed to me that there is nothing to set aside. There is no bar to further proceedings under the law, and, therefore, a Magistrate to whom a complaint has been made under such circumstances is bound to proceed in the manner set out in Section 200, that is to examine the complainant, and, unless he has reason to distrust the truth of the complaint or for some other reason expressly recognised by law, such as, if he find that no offence had been committed, he is bound to take cognizance of the offence on a complaint, and, unless he has good reason to doubt the truth of the complaint, he is bound to do justice to the complainant, to summon his witnesses and to hear them in the presence of the accused.

9. The argument which seems to have been freely used to support this point of view is that, the accused might be constantly brought before the Courts to hear the evidence on which two opinions may be formed by different Courts, and thus be put to considerable inconvenience and harassment. In the exercise of such power, as well as in the exercise of many other powers, if a reasonable discretion is not exercised, an injustice to the parties may be done. That is a matter which may be set right by a superior Court. It certainly is not a matter which to me seems to require that the exercise of powers which the law confers on a judicial officer should be curtailed generally and in all cases. This argument moreover, would not apply to a case in which the complaint had been summarily dismissed under Section 203, or dismissed on default to pay process fees, Section 204 (3), and such cases are also within the terms of Section 437. There can be no distinction in respect to the powers of a Magistrate in dealing with such cases. The power to act under Section 437 is only as it were on a mandamus to order proceedings to be taken were a case has been dropped, and not to restrict the power conferred by law.

10. In conclusion I would only refer to the judgment of the Full Bench of Han Pass Sanyal v. Saritulla (1888) I.L.R. 15 Cal. 608, which has been pressed on us as settling the matter now under consideration. If reference be made to the report of the case, it will be seen that this was not one of the points on which the opinion of the Court was desired on the reference. It did not necessarily arise on the reference, nor did it form the subject of argument at the bar. The opinion expressed by the learned Judges on this subject was only in the course of reasoning to explain how they dealt with the entire matter. It cannot, in respect of the matter now under consideration, be regarded as finally dealing with it. I cannot, therefore, consider that the opinion so expressed is absolutely binding, though of course it is entitled to the greatest respect, seeing that it is the opinion of six Judges of this Court, all of whom are Judges of great experience and learning. Whether, therefore, this point arises or not, I desire to express my opinion in this matter, which is still open to discussion on the point stated on the reference. I agree with the answer which my Lord the Chief Justice proposes to give.

Ghose, J.

11. The question referred to the Full Bench is “whether a Presidency Magistrate is competent to revive a warrant-case triable under Chapter XXI of the Code of Criminal Procedure, in which he has discharged the accused person.” This question is rather general and applies to any case where an order of discharge, upon whatever ground, and at whatever stage of the trial it may be, is made.

12. It seems to me that if we were to confine ourselves to the circumstances under which the order of discharge was made in the present case, the general question referred to hardly arises.

13. It appears that a charge of criminal breach of trust under Section 406 of the Penal Code was laid before one of the Presidency Magistrates of Calcutta on the 12th of May 1900. The accused was thereupon summoned, and on the 26th May, when the matter was taken up for trial, the complainant was absent, though the defendant was present; and the latter having denied the charge, the complaint was dismissed and the defendant was discharged without any trial. A few minutes after this order was made the complainant came into Court and applied that the case might be “restored’ or “revived,” stating that on account of illness he was unable to be punctual. The Magistrate thereupon, on the 26th of June of the same year, ordered that the case be revived, and summons on the accused do issue.

14. There can be no doubt that the order of the 26th May 1900, which apparently was made under Section 259 of the Code of Criminal Procedure, was illegal, because it was a warrant-case, and the offence for which the accused was charged could not lawfully be compounded; but then the question that arises is whether he had authority to revive the complaint and order fresh summons to issue upon the original complaint ?

15. Section 369 of the Code provides that “no Court other than a High Court, when it has signed its judgment, can alter or review the same, except as provided in Sections 395 and 484, or to correct a clerical error.” The sections specifically referred to have no application to the present case, and therefore may be left out of consideration.

16. The question is whether the order of the 26th May 1900 was a judgment, which could not be altered or reviewed by the Magistrate.

17. Section 403 of the Code lays down that when a person is once acquitted or convicted of any offence he shall not be tried again for the same offence. And there is an explanation attached to it, which runs thus.

The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused, or an entry made on a charge under Section 273 is not an acquittal for the purposes of the section.

18. There can be no doubt that the discharge of the accused could not operate as an acquittal, and it follows from this that if the Magistrate in this particular case was authorized under the law to alter or review his own order, he could rightly make the order that he did make on the 26th June 1900.

19. Section 869 of the Code, as already stated, prohibits a judgment, when once pronounced, to be reviewed; and by implication it may be taken that if an order is not a judgment, it may be altered or reviewed.

20. The Code does not define what a judgment is. Section. 367, however, so far as the Provincial Criminal Courts are concerned, lays down what a judgment should contain, but Section 370, as applicable to a Presidency Magistrate, provides a different form for the recording of a judgment. It only provides for certain particulars being mentioned in the judgment, and that in all cases in which the Magistrate inflicts imprisonment or a fine exceeding Rs. 200, a brief statement of the reasons therefore should be recorded. Upon examination of the various provisions of the Code it will be found that it is only after the Magistrate investigates the merits of the complaint, either by examination of the complainant or by taking such evidence as may be produced, that the Magistrate is in a position to pronounce a judgment, or in other words that the case should reach a stage which entitles or requires him to pronounce a decision upon the guilt or innocence of the accused. And, if he then makes his order, either convicting the accused or discharging him, it would, I think, be a judgment within the meaning of the Code. In this respect there is a difference between a summons and a warrant-case. Confining myself to a warrant case and referring to Sections 203, 252, 253 and the following section in Chapter XXI of the Code, it seems to me clear that it is only when the Magistrate, after investigating into the merits of the complaint, pronounces an order, it is a judgment. In the present case, however, the Magistrate did not so investigate the merits, but, as expressed by himself, it was “struck off in the absence of the complainant” on the day fixed for trial. It is obvious that the case did not reach that stage which entitled him to pronounce an opinion as to the guilt or innocence of the accused. I am, therefore, inclined to think that the order of the 26th May 1900 is not a judgment within the meaning of Section 369 of the Code; and that being so, the Magistrate was entitled to alter or review it, as he did by his order of the 26th of June of the same year.

21. The view that I have just expressed would be sufficient to dispose of the reference before us, but as already mentioned the question referred to the Full Bench is a larger question, and refers generally to all warrant-cases in which the accused had been discharged; and the arguments addressed to us have been rather upon that larger question; and as the learned Chief Justice has expressed his views upon it, I feel it incum-bent upon me to state what my views on the subject are; and I proceed to do so shortly.

22. I have already referred to the section of the Code which lays down that a judgment of a Criminal Court, if once pronounced, cannot be altered or reviewed; and I have also tried to explain in what cases the order of a Magistrate would be a judgment. Take the case of an order under Section 203 which provides: “The Magistrate, before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if after examining the complainant and considering the result of the investigation (if any) made under Section 202 there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing.”

23. The Magistrate in such a case has to give reasons for his order dismissing the complaint. In like manner, in making an order under Section 253 discharging the accused after examining the complainant, or after taking such evidence that may be produced in support of the prosecution, he has to record his reasons. Such an order would, in my opinion, be a judgment. Section 370 of the Code, as applicable to a Presidency Magistrate, although in terms it does not lay down that the reasons for making an order of discharge should be recorded, yet, I take it, is to be read with the other sections to which I have just referred, and in this view of the matter I should think that when after examining the complainant or after taking certain evidence, however incomplete such evidence may be, the Magistrate exercises his judgment upon the merits of the complaint and makes an order of discharge, it is a judgment which under Section 369 cannot be reviewed or altered by himself. But it has been said that Section 367 of the Code as applicable to Provincial Criminal Courts does not Speak of an order of discharge, but only of conviction and acquittal. And therefore such an order, though containing the reasons for making it, is not a judgment. I am unable to accede to this view; for it seems to me that the first paragraph of that section is applicable to all orders which are passed after a Criminal Court exercises its judgment upon the merits of the complaint, though no doubt the following paragraphs speak of conviction or acquittal; but however that may be, the argument that may be drawn from the wording of this section is hardly applicable to a judgment as referred to in Section 370.

24. But it is said that the discharge of the accused being not an acquittal, and there being nothing in the Code of Criminal Procedure prohibiting the Magistrate from entertaining a fresh complaint either upon the same facts or upon additional facts, he is competent to take fresh cognizance of the case. So far as this particular argument bears upon the present case, it cannot be applicable, for the simple reason that the application that was made to the Magistrate after the complaint was dismissed was simply for a revival and not a fresh complaint. But perhaps this is rather a technical view of the matter. I, therefore, pass on to the question of the general applicability of the argument.

25. Referring to Section 87 of the Presidency Magistrate’s Act IV of 1877, which was repealed by the Criminal Procedure Code of 1882, I find a provision similar to Section 259 of the present Code was contained in it. Explanation I of that section provided–“The absence of the complainant, except when the offence may lawfully be compounded, shall not be deemed sufficient ground for a discharge, if there appear other evidence of a nature rendering a trial desirable.” And then Explanation II laid down:–“A discharge is not equivalent to an acquittal, and does not bar the revival of a prosecution for the same offence.” The words in Explanation II ” and does not bar the revival of a prosecution for the same offence ” have not been incorporated in the present Code, and all we have in it is that the discharge of the accused does not operate as an acquittal. I may further refer to the second paragraph of Section 32 of the same Act, which is analogous to Section 203 of the present Code, with this difference that in that paragraph there was an express provision for a revival after dismissal–whereas there is no such provision in the present law. What do these omissions, to which I have just referred, indicate? Do not they indicate that the Legislature intended that the Magistrate, when once he had discharged the accused, should not have, on his own authority, the power to revive a complaint, or take fresh cognizance of it? On the other hand, instead of any provision like that which was contained in the Act of 1877, we have in Chapter XXXII of the present Code, Sections 435 to 439, which give the superior criminal authority, including the High Court, the power to set aside an order of discharge improperly made by a Magistrate and to order further inquiry. It is, however, said that Sections 436 and 437 do not apply to Presidency Magistrates: (see the observations of the learned Chief Justice in Queen-Empress v. Dolegobind Dass (1900) I.L.R. 28 Cal. 211; but, conceding that this is so, there can be, I think, no doubt that Sections 435 and 439 are applicable; and they confer upon the High Court the power of sending for the record of any inferior tribunal and reversing the order of the Magistrate, including the power of ordering a further inquiry in the case of an improper discharge–and this was the view that was adopted in respect to an order made by a Provincial Magistrate in the Full Bench case of Hari Dass Sanyal v. Santulla (1888) I. L. R. 15 Cal. 608. It will be observed that the said Chapter XXXII refers to Presidency Magistrates as also to Provincial Magistrates, and though it may be said that Section 435 does not in terms refer to Presidency Magistrates, yet the words “any inferior Criminal Court” would include a Presidency Magistrate’s Court, and the High Court is by the terms of Section 439, read with Section 423 of the Code, empowered to set aside the order of discharge and direct a further inquiry. I am here confronted by certain observations of Sib Henry Prinsep and Hill, JJ., in the case of Charoobala Dabee v. Barendra Nath Mazumdar (1899) I.L.R. 27 Cal. 126 where, in referring to the powers of the High Court under Section 439, read with Section 423, they stated that the latter section “does not enable a Court of Appeal to direct that further inquiry be made into a case in which an order of discharge or dismissal may have been passed Section 423 confers a power to direct a further inquiry only in respect of a case of an appeal from an order of acquittal; and that the power is so limited is shown” by an express enactment in Section 437 to provide for such orders being passed. To this I need only say that this view is opposed to the decision of the Full Bench in the case of Hari Dass Sanyal v. Saritulla (1888) I.L.R.15 Cal. 608 to which I have already referred. I shall only quote here a few lines hearing upon this point. “Wilson, J., in delivering the judgment of the majority of the Court says: ” Thirdly, though I am inclined to agree with the contention urged before us that the mention of the High Court in 6. 437 was not strictly necessary, and that if it had not been mentioned it would have had under Sections 435 and 439 the same powers which are here expressly given to it, still I think the mention of the three tribunals together, the High Court, the Court of Session and the District Magistrate, tends to show that the Legislature intended them to have the same power with regard to the matter dealt with in the section.” If these sections, to which I have just referred, were intended only to apply to the Provincial Magistracy, it is to my mind simply incomprehensible why the Legislature, while they omitted in the present Code the reservation in favour of a revival as embodied in Explanation II of Section 87 of Act IV of 1877, and in Section 32, paragraph 2 of the same Act, and made distinct provisions in Sections 435 to 439 for setting aside an improper order or discharge by a Magistrate, should have made no such provision as regards orders made by Presidency Magistrates. And in this connection I may refer to Sections 147 and 215 of the Code of 1882, which contained provisions similar to Explanation II of s. 87 and Section 32 of the Presidency Magistrate’s Act, viz., the dismissal of a complaint or the discharge of the accused shall not prevent subsequent proceedings, which proviso has also been omitted in the corresponding Sections 203 and 403 of the present Code. It seems to be obvious, therefore, that both the Presidency Magistrates and the Provincial Magistrates have, under the Code of 1882, been placed on the same footing, and the omission of the provisions as contained in both the Presidency Magistrate’s Act and the Code of 1872, just referred to, is significant as indicating the intention of the Legislature to take away from Magistrates the power which they hitherto possessed of reviving on their own authority a complaint which has once been dismissed or where the accused has been discharged. It has been repeatedly held in this Court that, after an order of discharge has been made by a Provincial Magistrate, it is not open to him to re-open the proceedings without an order of a superior authority, and this has been held by no less an authority than Sir Henby PRinsep. In the case of Opoorba Kumar Sett v. Sreemutty Probod Kumary Dassi (1898) 1 C.W.N. 49 that learned Judge, referring to Mofussil Magistrates, expressed himself in these terms–“no doubt the power to re-open Criminal Proceedings after an order of discharge is not open to every Magistrate, unless an order from some superior authority is passed directing further inquiry or commitment.” To the same effect is the case of Nilratan Sen v. Jogesh Chundra Bhut-tarcharjee (1896) I.L.R.23 Cal. 983. as also the case of Komal Chandra Pal v. Grow Chand Audhikari (1897); I.L.R. 24 Cal. 286. These two latter cases have been quoted with approval by the Allahabad High Court in the recent case of Queen-Empress v. Adam Khan (1899) I.L.R. 22 All. 106 And I would also refer in this connection to a case in the Madras High Court reported in Weir’s Law of Offences and Criminal Procedure, page 874.

26. If then what has been repeatedly held in this Court as to the want of authority in the Provincial Magistrate’s re-opening proceedings after an order of discharge has been made be correct, it is to my mind impossible to hold (arguing by analogy) that a Presidency Magistrate in similar circumstances is possessed of that authority.

27. Then is there anything in the Code itself to favour the view that has been propounded on the other side? The Code of Criminal Procedure is but an enabling Act (e.g., Section 5), and it seems to me that before such an authority as is claimed for a Presidency Magistrate is held to exist, it must be shown that there is an express provision in the Code giving him that authority.

28. There may not be any express provision in the Code that the dismissal of a complaint shall be a bar to a fresh complaint being entertained, so long as the order of dismissal remains unreversed; but on the other hand, as BANEBJEE, J. has observed in the case of Nilratan Sen v. Jogesh Chundra Bhuttarcharjee (1896) I.L.R.23 Cal. 983–” there is no express provision to the contrary, not even such as there was in Section 147 of the former Code “–while Sections 435 to 439 of the Code authorise the superior criminal authority to revise the order of dismissal and to direct a further inquiry. I do not desire to import anything into the Code which does not exist there; but I do say, what is there in the Code which authorizes a Magistrate, when once he has dismissed a complaint or discharged an accused, to re-open proceeding either on the same complaint or on a fresh complaint? 3s. 190 and 252 of the Code, no doubt, authorize a Magistrate to take cognizance of an offence in one of three ways, and to investigate the same; but these sections, with all deference to the contrary opinion that has been expressed, can only refer to one and the same complaint, and to the same set of facts presented to the Magistrate at the time of the initiation of proceedings; otherwise the accused would be in peril of being prosecuted upon the same facts, first of all under a complaint, then upon a Police report, and lastly upon the Magistrate’s own initiation, provided only there has been no acquittal on the charge. The mischief of such a course was pointedl out in the case of In the matter of Mohesh Mistree (1876) I.L.R.1 Cal. 282, where the accused was prosecuted three times for the same offence under the old Code. And I think it is not unreasonable to suppose that, having regard to the mischief that sometimes arose under the old Code, the Legislature took away from the Magistrates the power they possessed of reviving proceedings after the discharge on their own authority.

29. But it is said that an order of discharge being not an acquittal, there is nothing to alter or set aside; and therefore a Magistrate is competent to take cognizance of the same matter, notwithstanding the provisions of Section 369. No doubt, such an order is not an acquittal, and does not bar subsequent proceedings, but supposing that the reviving of proceedings, after an order of discharge, is not practically to alter or set aside the previous order, the question yet arises, whether the Magistrate could do so on his own authority–and whether, so far as he is concerned, he is empowered to take further proceedings in respect of the same matter, without the orders of a superior Court.

30. The learned Chief Justice, in his judgment in the case of Queen-Empress v. Dolegobind Dass (1900) I.L.R. 28 Cal. 211 has, in support of the view he expresed therein, relied upon, among other matters, which I have already discussed, three oases, which I now proceed to notice.

31. The first case is of Hari Singh v. Danish Mahomed (1878) 20 W.R.Cr. 46. That was a case under the Code of 1872, which authorized, as I have already stated, the revival of proceedings after a discharge (see Section 215, Explanation IT, and Section 147). Moreover, in that particular case, it was the0 District Magistrate who directed fresh proceedings being taken after an order of discharge made by a Sub-Magistrate, and it was held by Couch, Chief Justice, that he had authority to do this. The same power exists also in the present Code, and the case therefore, in my opinion, does not help us in the decision of the point at issue in the present reference.

32. The next case is that of Empress v. Donnelly (1877) I.L.R. 2 Cal. 405. This was also a case under the Code of 1872, which, as I have already noticed, expressly authorised the institution of fresh proceedings. The learned Judges however drew a distinction, which is of importance, in the consideration of the question now raised before us–viz., that the District Magistrate cannot direct the revival by his own authority, of a case, in which there has been a discharge, where there is no further evidence forthcoming. Under the present Code, however, as expounded by the majority of the Court in the case of Hari Dass v. Sayal Santulla (1888) I.L.R. 2 Cal. 405, there is a power given to the District Magistrate of directing a further enquiry upon the same facts.

33. The last case is of Queen-Empress v. Puran (1886) I.L.R. 9 All. 85. That case, no doubt, is authority for the proposition that a Magistrate, after an order of dismissal under Section 203, is not precluded from entertaining again the complaint upon the same state of facts. But this, I may observe, is against the current of rulings in this Court, where it has been held that this could only be done under the orders of a superior authority.

34. The only other case that I need notice is the case of Girish Chunder Roy v. Dwarha Nath Aganvalla (1897) 1 C.W.N. 370. In that case the accused had been discharged by an Honorary Magistrate, and subsequently one of the stipendiary Magistrates, upon an application being made to him, ordered a revival of the case. And I held that this was, in effect, dealing by one Magistrate with the order of another Magistrate of co-ordinate jurisdiction, as if he were an appellate authority, and that this he was not empowered to do. The learned Chief Justice, I observe, in the case of Queen-Empress v. Dolegobind Dass (1900) I.L.R. 28 Cal. 211, expressed his dissent both from my reasoning and the conclusion I arrived at in that case. He was of opinion that, under Section 252 of the Code, the Magistrate was bound to hear the case upon the fresh complaint made to him, and that there was nothing in the Procedure Code to preclude him from so doing. In the earlier part of my judgment, I have discussed this particular point, and I need not therefore repeat here, what I have already said. may, however, in this connection, refer to the recent case of Queen-Empress v. Adam Khan (1899) I.L.R. 22 All. 106 decided by the Allahabad Court (Blair and Burkitt, JJ.), where precisely the same view which I expressed has been approved of and adopted. The learned Judges observed, “We think it utterly contrary to sound principles that one Magistrate of co-ordinate jurisdiction should, in effect and substance, deal with, as if it were an appeal or a matter for revision, a complaint which had already been dismissed by a competent tribunal of co-ordinate authority.

35. For all these reasons I should answer the general question referred to the Full Bench in the negative, subject, of course, to the reservation as indicated in the early part of my judgment. And this is the view that was adopted by no less than six Judges of this Court, including the two Judges who have referred this case.

Hill, J.

36. I think that this reference should be answered in the manner proposed by my Lord, and I have little to add, confining myself to the question arising out of the proceedings before the Magistrate. The case of Opoorba Kumar Sett v. Sreemuty Probod Kumary Dassi (1898) 1 C.W.N. 49 was, I think, rightly decided and ought to be followed. It would amount virtually to a reductio ad absurdum were it to be held that, if the complainant had renewed his complaint, after the order of discharge had been made, the Magistrate might have proceeded with the prosecution, notwithstanding that order, as there can be no doubt he might have done. See the judgment of the Chief Justice in the case of Queen-Empress v. Dolegobind Dass (1900) I.L.R. 28 Cal. 211, but that he was precluded by that order, which, it is to be observed, was not made on the merits, and was an altogether illegal order, from taking further action in consequence of the circumstances that the complaint was not formally repeated by the complainant. The jurisdiction, moreover, does not rest exclusively on complaint. See the remarks of Markby, J. in the case of Empress v. Donnelly (1877) I.L.R. 2 Cal. 405 which were accepted in principle by Mr. Justice Prinsep.

37. I may add that the case of Damini Dassi v. Hurry Mohan Muker-jee (1898) 4 C.W.N. 46 to the decision of which I was a party, proceeded, so far as I was concerned, on what I conceived to be the practice of the Court rather than upon principle. None of the cases bearing upon the question now before us were cited, The decision cannot, I think, be sustained.

Sale, J.

38. I also agree in the answer proposed to be made in the reference by the Chief Justice and for the reasons stated in his judgment. It seems to me that under the Criminal Procedure Code an order of discharge in a warrant case is no bar to further proceedings on the same charge, and that this is so, irrespective of the circumstances under which the order of discharge was made.

Harington, J.

39. I agree that the question propounded to us ought to be answered in the terms stated by my Lord. The answer depends on whether the order of discharge is a “judgment,” or not; and though there is no definition that I can find of what constitutes a ” judgment,” there is, in Section 29 of the Penal Code, a definition of what constitutes a Judge, who is defined as every person who is empowered by law to give in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment; and amongst the illustrations it is pointed out that a Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge. In this case it appears to me that at the stage of the proceedings at which this charge was dismissed, the Magistrate could not be accurately described as a Judge, because he had not, at that stage of the proceedings, jurisdiction to pass a sentence of fine or imprisonment. All that he had jurisdiction to do was this: if no prima facie case was made out, he was entitled to discharge the accused; if, on the other hand, a prima facie case was made out, he was called upon to determine whether, if a charge were framed on the facts disclosed, he could inflict an adequate punishment and, if he could, he was bound to frame a charge under Section 254 of the Code of Criminal Procedure, and call upon the accused to plead to that charge and then proceed to try it. In my opinion, until the charge had been framed and the accused called upon to plead to it, the Magistrate could not accurately be described as a Judge, and any order that he made previous to the framing of the charge could not be described as a judgment. For that reason, I think, that the order of discharge was not a judgment. And, indeed, it is difficult to understand how, in proceedings under Chapter XXI of the Criminal Procedure Code, an order of discharge could be called a judgment, when, at the time it was made, no charge had been framed on which a “judgment” could be passed, and the accused had not been called upon to plead. It could under no circumstances be “definite,” for it does not operate as an acquittal under Section 403 of the Code of Criminal Procedure. That section shows what constitutes a definitive judgment in a criminal case.

40. There is only one other point on which I desire to add an observation, and that is this; it was open to argument that when the Magistrate had passed the order of discharge, he became functus officio, and therefore was unable to re-hear the case without a fresh complaint or information. As to this, I desire to say that that question is not the question referred to us; and in this particular case it is clear that the Magistrate had not discharged the duties which were imposed on him by Section 252 of the Code of Criminal Procedure, and, therefore, he could not be said to be functus officio, and moreover there is nothing to show that, when the parties appeared before him on the 26th of June, when the case was re-heard and a fresh summons issued, the conditions requisite for initiating proceedings were not fulfilled and the Magistrate, therefore, was not empowered to take cognisance of the case under Sections 190 and 200 of the Code of Criminal Procedure.

41. For the reasons I have given, I agree in thinking that the answer which should be given to this question should be the answer stated by my Lord.

Brett, J.

42. I would answer the question referred to us in the manner suggested by the learned Chief Justice for the reasons given by him in the case of Queen-Empress v. Dolegobind Dass (1900) I.L.R. 28 Cal. 211 and in his judgment just delivered, with which I agree. I agree with the broad principle therein laid down that, when a Magistrate is empowered by law to entertain a complaint, he should exercise that power, unless there is any bar to prevent his doing so. S. 190 of the Code of Criminal Procedure gives that power to all Presidency Magistrates and an order of discharge cannot operate as a bar to the exercise of that power (see Section 403, Code of Criminal Procedure). Nor can the provisions of Sections 435 or 439 of the Criminal Procedure Code, which are enabling sections, operate to limit the powers given to a Presidency Magistrate otherwise than under the law.

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