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Bombay High Court
Emperor vs Nabi Fakira on 14 February, 1907
Equivalent citations: (1907) 9 BOMLR 250
Bench: Chandavarkar, Pratt


1. We are of opinion that the Sub-Divisional Magistrate’s view is correct. The direction in Clause (2) of Section 253, Criminal Procedure Code and its absence in Clause (1) shows, on the principle of expressio unius est exclusio alterius, that the Legislature does not render the writing of “reasons” necessary where an accused person is discharged after the trying Magistrate has heard all the evidence for the prosecution. The provisions of Section 367, Criminal Procedure Code, substantially support that conclusion. It is on the termination of a trial that judgment has to be pronounced. A judgment is a decision which decides a case finally so far as the Court trying the case is concerned, but an order of discharge is not a final order because there is nothing to prevent a Magistrate, after he has once discharged an accused person under Section 253, from inquiring again into the case against him. A discharge, not operating as an acquittal, leaves the matter at large for all purposes of judicial inquiry. There is jurisdiction still vested in all Magistrates including the one who made the previous inquiry just as before: see Queen Empress v. Bapuda (1887) Unrep. Cr. C. 350. See also Mir Ahwad Hossein v. Mahomed Ashari (1902) I.L.R. 29 Cal. 726, where an order of discharge has been held to be not a judgment. At the same time it is desirable that a Magistrate should record his reasons for discharge, though it is not compulsory, see Ekcowri Mukerji v. Emperor (1904) I.L.R. 32 Cal. 178.

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