1. The only cases so far as I know. in which a Magistrate is authorized by the Criminal Procedure Code to discharge a person whose conduct is under enquiry before him are those provided for in Sections 209, 253, 259, 119 and 484 of the Code.
2. I am not concerned with Section 484, but if might be difficult, I think, to hold that Section 437 is applicable to the case of a person discharged under that section.
3. The discharge under Sections 209, 253 and 259 is made before the accused is called on to establish his defence before a Court which is competent to try and determine the case, and in cases in which a charge must be drawn up before any order can be made against the accused or penalty imposed upon him. Section 437 undoubtedly applies to disposals under Sections 253 and 259, arid may be applicable to a disposal under section: 209 also The discharge under Section 119 is a different matter. It may be made after the defence has been fully heard, no charge need be drawn up before the case is disposed of under Section 118, and if the accused (as I call him for convenience) is in custody there is no discharge but an order of release.
4. The question is does Section 437 apply to this case?
5. I think not For the reasons which I am about to give, I think I shall give effect to the real intention of the legislature if I read the word ‘discharged’ in Section 437 as equivalent to discharged within the meaning of Sections 209, 253 and 259 of the Code. It is clear to me that the legislature would not have made a distinction between an order of release and a discharge, if they had not intended that the two should be regarded as different things. They have not made any such distinction in Sections 209, 253 and 259. If then these two things are different it is impossible I think to apply Section 437 to the ‘discharge.’ The Code does not authorize its application to a release which is not a discharge and it would be absurd to make the jurisdiction under Section 437 depend upon the question whether or not the accused (I use the expression again for convenience only) was in custody at the time of the disposal of the case by the Magistrate. I am not prepared to attribute such an absurdity to the framers of the Code, especially when as here it is easy by giving a non-technical sense to the word ‘discharge’ to bring the procedure in regard to inquiries under Chapter VIII into harmony with the provisions of the Code in analogous cases.
6. There is no difficulty in holding that the discharge of Section 119 is merely a ‘permission to depart’; the word ‘charge’ as applied to offences is used in two senses in the Code. In Chapter XIX and in Sections 210 and 254 it is the formal statement of the case which the accused has to meet, in Section 253 it is used in the popular sense of ‘accusation.’
7. Similarly ‘discharge’ may have two meanings and Section 119 indicates that its meaning in that section is non-technical. The record is completed by the entry required by the section: the Magistrate then permits “the person in respect of whom, the enquiry is made” to depart if he is not in custody and if he is in custody directs the custodian to give the necessary permission.
8. Now this may be done after the Magistrate has been satisfied after hearing evidence for the defence that the execution of a bond is unnecessary, and it seems to me that it would be wrong in principle to permit a further inquiry’ in such a case. The inquiry is into conduct and so is analogous to an inquiry into an offence; and it is to be made in the manner prescribed for conducting the trial of an offence [Section 117(2)].
9. When a person accused of an offence has, by evidence adduced on his behalf, satisfied a Magistrate competent to try him and punish him if he is guilty, that he ought not to be convicted, the Code does not contemplate a ‘further enquiry’ by order of a superior Magistrate. The High Court alone can interfere in that case.
10. I am unable to see any reason why a difference should be made in the analogous case of an enquiry under Chapter VIII. When after hearing the defence evidence the Magistrate is satisfied that the execution of a bond is unnecessary, a further inquiry into the case is to my mind an inappropriate remedy if the Magistrate is thought to be wrong.
11. It may be that the law does not prohibit the taking of new proceedings under the Chapter on the same materials, but this is a different matter on which I need not express an opinion.
12. I am thus fortified in the conclusion at which I had arrived by the process of reductio, ad absurdum by a consideration of the matter on the general principles of the Code, and I have no doubt that the legislature did not intend and that I ought not to hold that the jurisdiction given by Section 437 should be applied to cases under Chapter VIII, at any rate where before making an order under Section 119 the Magistrate has called on the person into whose conduct the inquiry is made to establish his defence. It might perhaps be possible by analogy to apply Section 437 to disposal under Section 119, made in circumstances resembling those in which a discharge is made under Section 253, but the case before me is not such a case. The defence has been heard and the Magistrate is satisfied that a bond is unnecessary.
13. I must, therefore, set aside the order of the District Magistrate as made without jurisdiction.
14. I am asked on behalf of the original complainant (so to style him) to interfere under Section 439 but the Public Prosecutor does not support this request, and I agree with him that it is unnecessary to order a de novo inquiry. There is clearly nothing to prevent the taking of fresh action under Chapter VIII if the conduct of the petitioners perhaps is such as to render that course necessary or desirable.