JUDGMENT
Wallis, J.
1. General revisional jurisdiction is conferred by Sections 435, 438 and 439 of the Code of Criminal Procedure. Under these sections the Sessions Judge and the District Magistrate cannot themselves interfere, except to suspend the execution of a sentence or grant bail, but can only report to the High Court, and the High Court may in its discretion exercise any of the powers referred to in Section 439(1). As regards dismissals of complaints under Sections 203 and 204(3) and orders of discharge, there is no appeal, as there is in cases of acquittal and conviction, and the Legislature has not thought it sufficient to leave these orders to be dealt with under the general revisional jurisdiction already mentioned, and has conferred special powers in regard to these orders on the High Court itself as well as on the Sessions Judge and District Magistrate. Section 437 empowers the High Court or the Sessions Judge or the District Magistrate to order further inquiry and the District Magistrate himself to make further inquiry into a complaint which has been dismissed and into the case of an accused person who has been discharged and the effect of the order for further inquiry is of course to set aside the dismissal of the complaint and the order of discharge.
2. “Inquiry” is now defined in Section 4(k) as including every inquiry other than a trial conducted under this Code by a Magistrate or Court”. Trial begins when the accused is charged and called on to answer and then the question before the Court is whether the accused is to be acquitted or convicted and not whether the complaint is to be dismissed or the accused discharged. These, as observed by Wilson, J., in Hari Dass Sanyal v. Saritulla 15 C. 608, are questions which arise at the stage of inquiry. Therefore, an order for further inquiry directed to a Subordinate Court moans that the case should be taken up again and that the question of dismissing the complaint or charging the accused, as the case may be, should be again considered and an appropriate order made as a result of such fresh consideration. It follows that a Sessions Judge or District Magistrate who considers that the accused has been improperly discharged cannot himself commit the accused for trial at Sessions, under Section 437, as that would be an order to be made in the course of the further inquiry, and could only be made by the person making the further inquiry. Section 436, however, authorizes the Sessions Judge or District Magistrate, when he considers that the case is exclusively triable by the Court of Session and that the accused has been improperly discharged by the inferior Court, instead of ordering a ‘fresh inquiry’–which words, it is well settled, mean a further inquiry “under Section 437–himself to order the accused to be committed for trial before the Sessions Court upon the matter of which he has been improperly discharged. Thus, in the gravest class of cases the Sessions Judge and District Magistrate are empowered to dispense with further inquiry and commit for trial forthwith, thus avoiding the stage of further proceedings before the Subordinate Magistrate, which the Legislature considers unnecessary in view of the weight attached to the opinion arrived at by the Sessions Judge or District Magistrate. It might possibly have been more logical if the Legislature had enabled the Sessions Judge and District Magistrate, when they consider the accused has been improperly discharged, to dispense with further inquiry and make an order for trial also in the less serious cases which are not triable before a Court of Session, but the reasons for dispensing with further inquiry are undoubtedly less strong, as the order for further inquiry sends the case back to a Magistrate, who can take it up and dispose of it finally, whereas in a Sessions case the order for further inquiry involves further proceedings before the Magistrate followed in case of committal by trial before the Sessions Court. However, this may be, Section 436, in my opinion, has a most material bearing on the question raised in the present reference, because I think it is opposed to the view put forward by the majority of the Full Bench in Hari Dass Sanyal v. Saritulla 15 C. 608, that when the Sessions Judge or District Magistrate disagrees with the conclusion of the Subordinate Magistrate on a consideration of the evidence and comes to the conclusion that he has been improperly discharged, the proper course in cases not triable at Sessions, and so not coming under Section 436, is not to order further inquiry under Section 437, but to take action under the general revisional sections and report the case to the High Court, so that it may pass an order for trial under Section 439. When the Legislature is not satisfied that the general revisional jurisdiction established by it is sufficient to deal with a particular class of cases and creates a special revisional jurisdiction in such cases, it seems to me to be in accordance with the intention of the Legislature that the special jurisdiction should be exhausted before the general jurisdiction is resorted to. If the Legislature had considered that reporting to the High Court, with a view to an order being made under Section 439, was a suitable and convenient course, it would not have enacted Section 436, which enables the Sessions Judge or District Magistrate to commit for trial direct in the most serious class of cases. This section enables the Sessions Judge or District Magistrate to order a committal “instead of directing a fresh inquiry.” It does not say “instead of reporting the case to the High Court” as it should, in my opinion, have said if the view put forward in the Calcutta case is correct. On the contrary it appears to assume that, but for the special power conferred by Section 436, the natural and proper order would he an order for further inquiry under Section 437 and even leaves it open to make such an order in cases coming under Section 436, as the word used is ‘may’ and not shall. If this view be correct, it follows that in the less serious class of cases, not triable at Sessions and so not coming within Section 436, it is equally open to the Sessions Judge or Magistrate to order further inquiry under Section 437 where in his opinion the accused has been improperly discharged. It was pointed out by Muthusami Aiyar, J., in Queen-Empress v. Balasinnatambi 14 M. 334 (F.B.), at page 338 that the object of investing the Sessions Judge and the District Magistrate, with the powers conferred upon them by Sections 436 and 437, was to obviate the expense and inconvenience which the necessity to resort to the High Court under Sections 438 and 439 might in such cases entail, and we should, in my opinion, be defeating the object of the Legislature if we were to refuse to allow the Sessions Judge and District Magistrate to exercise the power conferred on them by Section 437 and to compel them to act under sections, 438 and 439. I am not called on to discuss the expediency of these provisions but I may observe that if a Sessions Judge or District Magistrate can be trusted to commit for trial in more serious cases, under Section 436, he can equally be trusted to make an order for further inquiry, under Section 437, in less serious cases, and that I am not at all satisfied that such an order is likely to be useless or ineffective, even where it is based only on the fact that the Sessions fudge or District Magistrate merely differs from the conclusion arrived at by the Subordinate Magistrate in the first instance upon the evidence on record. If the Legislature had been of that opinion they would, I cannot help thinking, have enabled the Sessions Judge or District Magistrate himself to make an order for trial in the less serious class of cases not coming under Section 436 as well as in the more serious class of cases coming under that section. With very great respect I am unable to agree with the opinion expressed by Mr. Justice Wilson in Hari Dass Sanyal v. Saritulla 15 C. 608, in cases where, in the opinion of the District Magistrate, there is a clear case on the evidence already recorded for charging and trying the accused viz., that the case should be reported to the High Court under Section 438 for an order under Section 439, and not dealt with under Section 437. In the latter case which came before the Full Bench of this Court Queen-Empress v. Balasinnatambi, 14 M. 334 (F.B.), the Sessions Judge had come to the conclusion that there was a clear case for charging and trying the accused, yet it was held that an order for further inquiry was a proper order, although no further evidence was forthcoming. I agree with Mr. Justice Pinhey, in Criminal Revision Case No. 27.1 of 1908, that the Full Bench deliberately refused to follow the portion of Mr. Justice Wilson’s judgment above referred to.
3. In his order of reference Mr. Justice Sankaran Kair observes that in so far as it holds that a trial as now understood can be ordered under Section 437 this judgment is no longer law. But I cannot see that any such proposition is laid down in that case. All the Judges say is that further inquiry may be ordered. It is true they answer in the affirmative the question “whether it is competent to direct further inquiry or retrial to be held where additional evidence is not forthcoming”. The word retrial” here is not perhaps very appropriate, as ex hypathesi no trial has yet been held, but it cannot, in my opinion, mean trial without further inquiry such as may be ordered under Section 436. Both the judgments show that the learned Judges were fully alive to the difference between Sections 436 and 437.
4. Mr. Justice Sankaran Nair, if I understand his order of reference rightly, is also of opinion that restrictions should be imposed on the exercise by a Sessions Judge or District Magistrate of the powers conferred on him under Section 437 based on a consideration of the restrictions which the High Court imposes on itself in the exercise of its revisional jurisdiction under Section 439, and has expressed the opinion that neither the High Court nor a Sessions Judge, nor a District Magistrate can interfere with an order of discharge on account of mere misappreciation of evidence. With great respect I am unable to agree with his view which appears to me to be opposed to Hari Dass Sanyal v. Saritulla 15 C. 608, as well as to Queen-Empress v. Balasinnatambi 14 M. 334 (F.B.). As I have already pointed out, the Legislature has considered it necessary to confer a special jurisdiction on the High Court as well as on the Sessions Judge and District Magistrate in cases of dismissals of complaints and orders of discharge as to which there is no right of appeal. From this I gather that it was the intention of the Legislature that the High Court should have a freer hand in interfering tinder Section 437 than under Section 439 and the powers of the High Court and the Sessions Judge and District Magistrate are co-extensive under Section 437. There is nothing in Section 437 to suggest that misappreciation of evidence in the lower Court is not a ground of interference, and Section 436 which enables an order of committal to be made when the Sessions Judge or District Magistrate considers that the accused has been improperly discharged shows, in my opinion, that misappreciation of evidence is a ground of interference under these sections. I would, therefore, answer the first question which refers to this point by saying that the powers of interference of the High Court and the Sessions Judge or District Magistrate are co-extensive under Section 437 and are not limited as suggested in the order of reference.
5. As regards the second question, I am of opinion that the Sessions Judge or District Magistrate cannot, in the exercise of the power to order further enquiry under Section 437, himself frame the charge or order the Magistrate to frame the charge or try the accused. Under the other part of the section, the District Magistrate might, of course, make the further enquiry himself and frame the charge in the course of it. As regards the third question I am of opinion that the Sessions Judge or District Magistrate is not bound to refer the case to the High Court in a case of difference of opinion owing to mere appreciation of evidence, but would be justified in ordering a reconsideration of the same evidence.
6. As regards the last point, which is not the subject of a formal question, I desire to say that in my opinion the unsatisfactory manner in which a case had been dealt with by a Subordinate Magistrate would be good ground for ordering further enquiry by another Magistrate. And with regard to the remark of the learned Judges, who decided Queen-Empress v. Amir Khan 8 M. 336,–the decision overrated by the Fall Bench in Queen-Empress v. Balasinnatambi 14 M. 334 (F.B.),–that Section 437 does not contemplate that the evidence taken should be retaken, I would point out that Section 437 does undoubtedly contemplate that further enquiry may be made by another Magistrate; and if it is necessary and incidental to the further enquiry being made by another Magistrate that the evidence taken before the first Magistrate should be retaken, the Legislature must be considered to have contemplated this also. In the present case, we do not consider there is any case for interference and dismiss the petition.
Munro, J.
7. I would answer the questions referred to us in the same way.
Sankaran Nair, J.
8. For the reasons already recorded, I agree with the judgment, of Wilson, J., concurred in by the majority of the Full Bench of the Calcutta High Court on the question raised before us.
9. In my order of reference I have pointed: out that though Section 437 empowers the District Magistrate or Sessions Judge to order a further enquiry, his order may be, and in fact ought to be, set aside by the High Court in revision if on the facts found the case is not one in which an order for enquiry is the appropriate order. I do not understand my learned colleagues to deny this proposition.
10. I then pointed out that where a District Magistrate or Sessions Judge differs from the Subordinate Magistrate in his conclusion and is of opinion that a case is made out which requires an answer from the accused, no useful purpose is served by an enquiry; the question then is whether there should be a retrial: and a further enquiry in these circumstances would be unfair to the accused.
11. To this, so far as I can see, there has been practically no reply. Why there should be an enquiry again, particularly when the matter can be otherwise settled, is not suggested. It is not denied that the real question at that stage for consideration is whether there should be a trial; and it would be more logical for the Legislature to enable the District Magistrate and Sessions Judge to make an order for trial. I think the Legislature has carried out this purpose by enabling the District Magistrate or Sessions Judge to carry out the enquiry himself, in which case he might frame the charge and try the accused or refer the matter to the High Court for decision under Section 438. That in the case before us, as in the majority of orders probably under Section 437, the order is unjust to the accused can, in my opinion, be scarcely denied. If the new Magistrate forms his opinion on the evidence already taken, it cannot be as valuable as that of his predecessor who had the advantage of examining the witnesses. If the Magistrate re-examines the prosecution witnesses, or examines new witnesses, it obviously gives an unfair advantage to the prosecution which, I feel confident, the law never contemplated.
12. An additional disadvantage has been brought to my notice in the course of the argument in a case heard after this. If the new Magistrate is entitled to try the accused summarily it may be that the accused will lose the benefit of an enquiry and trial, where evidence is taken in the usual course, and the right of appeal in case of conviction.
13. It appeal’s to me that when a power is conferred in general terms and under certain circumstances the power should be exercised in a particular way, in the interests of justice, then it is only consistent with principle to hold that the power should be so exercised.
14. The difference between the powers of a Court of Appeal and a Court of Revision is also in support of the petitioner. That in a certain class of cases, Section 436 indicates this to be the appropriate course also favours his contention.
15. With reference to the argument based on the occurrence of the words “instead of directing a fresh enquiry” and the omission of “instead of reporting to the High Court for committal” in Section 436, it must be remembered that Section 436 docs not refer to Section 437; that when the former section was drafted, it was not settled by decisions that the words were used in the same sense as the corresponding words in Section 437; that on this point Judges have differed and that even in the cases referred to in Section 436 the power conferred by Section 438 may be even now exercised when the circumstances warrant it; and in my opinion it would be properly so exercised when there is an important question of law to be decided. Nor am I able to accept the suggestion that Section 437 confers higher powers than Section 439. What was held by Muthuswami Aiyar, J., in his judgment, was that for the reasons given by him, which I have set out in my order of reference, the District Magistrate and the Sessions Judge acting under Section 437 had the powers of the High Court acting in revision under Section 439, and, therefore, the power to order further enquiry, i.e., for a reconsideration of the evidence. This, it appears to me, is clearly wrong under the present Code, as the High Court may order a retrial under Sections 423 and 439, which the District Magistrate and Sessions Judge have no power to do under Section 437. There is thus nothing in that decision to support the contention now put forward–it is in fact opposed to it–that the powers conferred by Section 437 are wider than the powers conferred by Sections 439 and 423. And I have already given my reasons for holding that the High Courts in revision do not interfere on mere difference of opinion as to the weight due to the oral evidence in a case. There is of course no doubt that the Courts therein referred to have concurrent powers under Section 437. The only question is whether they are more than the powers conferred on the High Court by Section 439.
16. The argument from the expense and inconvenience also tells strongly in favour of the accused. When the case is referred to the High Court under Section 438, the inconvenience to the prosecution–in this case the Superintendent of Police–is nothing, the expense, if any, is trifling. To the accused, if an ordinary ryot, a further enquiry is certainly harassing. It might prove his ruin even if ho is finally acquitted. And it is quite possible that there might be further orders for “further enquiry” till he is finally convicted. For these reasons, I would set aside the order directing further enquiry.
