V.D. Misra, J.

1. The short questions to be decided in this case is has the Magistrate Jurisdiction to revive the complaint which has been dismissed for default of appearance of the complainant and re-summon the accused who has been discharged under Section 259 of the Code of Criminal Procedure

2. V. P. Dean complainant had filed a complaint under Section 500, Indian Penal Code, against Banners Dass Seth and Raj Kumar Seth and the Magistrate, the complainant was about with the result that the Magistrate dismissed the complaint and discharged the accused under Section 259 of the Code of Criminal Procedure and passed the following short order:

Accused with Counsel present. Complainant has not appeared despite repeated calls. It is now 2. 15 P. M. The case is under Section 500, Indian Penal Code, which is compoundable and no cognizable. The case is dismissed under Section 259, Criminal Procedure Code. Accused are discharged.

Shortly after the order had been passed the complainant appeared and made an application for restoration of the case, which was accepted and the following ex parte order was passed:

The case is revived. Let the accused be summoned for 3rd March, 1967.

The accused filed a revision petition against the order reviving the complaint to the Court of Session. The learned Additional Sessions judge made a recommendation to this court that the said ex parte order reviving the complaint and summoning the accused be set aside.

3. When this matter came up before one of us it was found that there was a conflict of opinion on this question between various High Courts and it was desirable that pronouncement by a larger Bench of this question. It is in these circumstances that the matter has come up before us.

4. The contention of the learned Counsel for the petitioner is that the Magistrate, after he had pronounced his judgment dismissing the complaint and discharging the accused had no jurisdiction to review the same and revive the complaint. According to the learned Counsel, the Magistrate had become juncture officio after pronouncing the judgment and could not review the same and could correct clerical errors only. It is thus contended that the only remedy open to the complainant was to make a fresh complaint and request the Magistrate for fresh proceedings under Section 200 onwards of the Code of Criminal Procedure.

5. The learned Counsel for the State contends that the order of the Magistrate dismissing the complaint and discharging the accused, under Section 250 of the Code of Criminal procedure was not a Judgment and thus the Court had jurisdiction to revive the complaint and resuming the accused. Chapter XXVI of the Code of Criminal Procedure deals with Judgment. Section 366 of the Code deals with the mode of delivering judgment by Criminal court. Section 367 of the Code deals with the language of the judgment and contents of the same. It lays down the unless otherwise expressly provided by this Code the judgment will contain the point or points for determinate, the decision thereon and jilted reasons fjord the decision and shall also be signed and dated by the presiding Officer in open court at the time of Pronouncing it. Section 368 of the Code deals with the sentence of death. Section 369 of the Code lays down that no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error. The rest of the Sections in this Chapter are not relevant for our purposes.

6. The Code of Criminal Procedure does not anywhere define what judgment is. However, Section 367 of the Code lays down as to what shall be the contents of a judgment. According to this Section, the judgment should contain the point or points from determination in the case before the Court and the decision on those points. The Court is also required to give reasons why it has reached a particular conclusion. It is only when these requirements are fulfilled that a particular order may be called a judgment. Section 370 of the Code makes a special provision for the judgments of the Presidency Magistrates Court and lays down in detail what has to be recorded by him. These provisions show that before it can be said that a particular order amounts to a judgment that before it can be said that a particular order amounts to a judgment of a Criminal Court, it must contain the points for determination, the decision of the Court on those points and reasons for coming to that decision. In other words, it must result in either acquittal or conviction of the accused person. In Dr. Hori Ram Singh v. Emperor, A IR 1939 FC 43 [LQ//1939/1] ; the Federal Court had an occasion to consider as to what amounts to a Judgment under the Code of Criminal procedure. It was held that judgment in a criminal case means a judgment of conviction or acquittal. It approved the decisions of the Madras High Court reported in Emperor v China calliope Goundan, (1906) 29 Mad. 126; and Emperor v. Maheshwara Monday, (1908) 31 Mad. 543; holding that a judgment is intended to indicate the final order in trial terminating in either the conviction or acquittal of clothe accused In Kuppuswami Rio v. The King, AIR 1949 FC I;the Federal Court after referring to their previous decision in Dr. Hori Ram Singh s case,

held

In our opinion, the term judgment itself indicates a judicial decision given on the merits of the dispute brought before the Court. In a criminal case it cannot cover a preliminary or interlocutory order.

A Full Bench of the Calcutta High Court in Darka Nat Mondul v Beni Madhab, ILR 28 Cal. 652 [LQ/CalHC/1901/27] ; while discussing the question whether an order of discharge amounted to a judgement or not, observed as under:

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 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 brave therefore take it that, if it had not been so required, it would have been unnecessary for a Magistrate to state any reason 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, and it once for all, such as an order of conviction or acquittal.

The Patna High Court in Raghubans Parsed and another v. State, AIR 1961 Pat. 379; held as under:

An examination of the various provisions of the code will show that every order passed by the Magistrate under the Code is not a judgment within the meaning of Section 369. In order to constitute judgment there must be an investigation of the merits of the case on evidence and after hearing the arguments. Where, however, the order is passed summarily without consideration of the entire evidence, as in the case of the order of discharge, it will not obviously amount to a judgment.

It was also held that the order of discharge could not be regarded as the final pronouncement of the Magistrate because a fresh complaint might be made on the same fact notwithstanding the order of discharge. In Mr. Habrai v. Raya Premjit and another, AIR 1939 Sind. 193; Reyappas and others v. Shivamamma, AIR 1964 Mysore; and State v. Parkash Chandra Aggarwal, AIR 1970. Orissa 171; the above decision were followed and it was held that an order of discharge did not amount to judgment.

7. On behalf of the petitioners reliance has been placed on a Smile Bench decision of the Punjab High Court in Bajrang Singh v. Ram Kishan and another, AIR 1967 Punj. 361;. The learned Judge without discussing Abovementioned authorities and placing reliance on an earlier Single Bench decision of the same High Court reported in Babu Ram v. Ramji All and others, AIR 1964 Punj. 444; held

The view of this Court is, and has been consistent that a Magistrate has no power of reviving a complaint dismissed in default under Section 256 of the Criminal Procedure Code.

In Babu Rams case the learned Judge was dealing with proceedings under Section 145 of the code of Criminal Procedure. Because of the absence of Babu Ram, his application under Section 145 of the Code was dismissed. Babu Ram filed another similar application, which was proceeded with and decided against him. Thereafter he challenged the second order in revision on the ground that the dismissal of his previous application was illegal and the original proceedings remained pending, and so the order passed on the second application was not valid. The learned Judge, while agreeing that the dismissal of previous application due to absence of the applicant was not valid, held that that order could be set aside only if that had been challenged in revision, and that the Magistrate had no jurisdiction to review that order and set it aside. Shakuntla Singh v State of Uttar Pradesh, AIR 1962 SC 1208 [LQ/SC/1962/30] ; which held that the Sessions Judge was not competent to alter or review his judgment once signed except for correcting a clerical error, was referred to. Section 369 of the Code was also quoted. There was no reference to the question whether the impugned order amounted to judgment and to the various aforementioned authorities. This judgment also did not relate to the order passed under Section 259 of the Code. Another authority referred to by the learned Judge in Bajrang Singhs case in Bhagwan Sahai v. Moti lal, AIR 1953 All. 402 [LQ/AllHC/1951/243 ;] ">1953 All. 402 [LQ/AllHC/1951/243 ;] [LQ/AllHC/1951/243 ;] ;Again in this judgment there is no decision of the question whether the order of discharge under Section 259 of the Code of Criminal Procedure amounts to a judgment or not. In Keshav Lal v. Gaveria, AIR 1952 Raj. 50 [LQ/RajHC/1951/128] ; there was no question of any order of discharge under Section 259 of the Code of Criminal Procedure. Here a learned Single Judge of that Court had dismissed a revision petition in the absence of the petitioner and a question had arisen whether it could be restored. This case is of no help to either party.

8. The learned Counsel for the petitioner has referred to an unreported judgment of this Court in Criminal Revision No. 33 of 1968 (Ava Singh v. Arijan Dass) decided on 19th February 1968. The petitioner cannot derive any help from this decision. In this case the complaint was in respect of an offence for which the procedure laid down under Chapter XX of the Code for the trial of summonscases had to be followed. Section 247 of the Code which forms part of this Chapter, lays down that if the complainant does not appear the Magistrate shall acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to some other day. Under these circumstances the dismissal of the complaint though expressed to be under Section 259 of the Code was in fact under Section 247 and result was state the accused stood acquitted. The observations made about Section 259 of the Code of Criminal Procedure were, therefore obiter dicta.

9. As long as the order of the Magistrate does not amount to a judgment or a final order there is nothing in the Code of Criminal Procedure prohibiting the Magistrate from entertaining a fresh application asking for the same relief on the same facts or from reconsidering that order. During the course of proceedings a Magistrate has to Pass various interlocutory orders and it will not be correct to say that he has no jurisdiction to reconsider them. For example the orders example the orders exempting the presence of the accused, of the accused, or refusing it are not final orders. A Full Bench of the Jammu and Kashmir High Court in Mirza Mohd. Ajzal Beg and others v. State of Jammu and Kashmir, AIR 1960 J&K. I.; held that it was not valid to contend that the Magistrate was absolutely bound by an order on an interlocutory matter and had no right to pass a different order unless his earlier order was set aside by a superior Court in appropriate proceeding since the since the principle applicable to judgment dies not apply to interlocutory orders and the Magistrate was entitled to pass a different order at a later stage

10. We are in respectful agreement with the view that the order of discharge of an accused under Section 259 of the Code of Criminal Procedure does not amount to a judgment under the Code of Criminal procedure does not amount to a judgment under the code. The Magistrate thus will be competent to revive the complaint and resummon the accused after setting aside the order of discharge.

11. The result is that the recommendations made by the learned Additional Sessions Judge are not accepted. The parties are directed to appear before the Chief Judicial Magistrate on 30th, November, 1970.