Authored By : Francis Maclean, Henry Thoby Princep, S.C.Ghose, C.H. Hill, S.G. Sale, Richard Harington, Cecil Michael Wilford Brett

Francis Maclean, C.J.

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

2. I answer the question by saying that a PresidencyMagistrate is competent to re-hear--I do not like the expression "revive," though I am aware it has been frequently used--a warrant-casetriable under Chapter XXI of the Code of Criminal Procedure in which he hasdischarged the accused person.

Henry Thoby Princep, 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 raisedbefore us.

4. I have, since 1877, in the case of Empress v. Donnelly I.L. R. (1877) Cal. 405 invariably held the opinion that there was no restrictionto a Magistrate trying a case in which there had not been a final order, suchas an order of acquittal or conviction. There is, however, one case which hasbeen brought to my notice in which a different opinion has been expressed, thecase of Opoorba Kumar Sett v. Sreemutty Probod Kumary Dassi :1 C.W.N. 49. That, however, was not a point necessary for the decision of thatcase; and I may state that the observation escaped my notice. I certainly neverintended to modify the opinion that I had formerly expressed on the subject.

5. The question incidentally arose again in the case of HariDass Sanyal v. Saritulla I. L. R. (1888) Cal. 608 and while agreeing with themajority consisting of six Judges of this Court on the point referred to theFull Bench, I differed on another point, which is the point now underconsideration: this had been incidentally noticed in the judgment of the Court,which was pronounced by Mr. Justice Wilson and formed a portion of hisstatement of the law. I then expressed the opinion that there was nothing inthe law to prevent a second Magistrate from hearing a complaint in proceedingsin 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. Thepoint has been again raised in the present case, although it was not one onwhich the reference was made.

6. The learned Counsel who appeared in support; of theRule--and it is much to be regretted that there was no argument on the otherside-- contended, that, inasmuch as no Provincial Magistrate was competent torevive, or, stating it more correctly, to hear the complaint in a matter Whichhad been already dealt with by an order of dismissal, or discharge, the samerule would apply to a Presidency Magistrate. If the case-law on the subject beexamined, it will be seen that under the Code of 1872 it was frequently heldthat a Magistrate could hear a complaint under such circumstances, but thisCourt thought proper to restrict the exercise of this power to cases in whichfresh evidence was forthcoming. The cases to which I refer are Hari Singh v.Danesh Mahomed (1873) 20 W.R. Cri 46 Kistoram Mohara v. Anis (1873) 20 W.R.Cri47 Reg. v. Devama : I. L. R. (1875) 1 Bom. 64 [LQ/BomHC/1875/17] Empress v.Donnelly I. L. R. (1877) Cal. 405 and In the matter of Dijahur Dutt I. L. R.(1879) Cal. 647. In this respect, as in the case now before us which has led tothis reference, the High Court has interposed, so as to prevent the exercise ofjurisdiction by a Magistrate, where the law itself has expressed no intentiondirectly so to limit it. Section 403 of the Code of Criminal Procedure, which isthe only section dealing with this subject, declares that an order of acquittalor conviction shall be a bar to further proceedings, and it specially exceptsfrom these terms a case such as the one now before us.

7. But it has been argued that an order dismissing acomplaint or discharging an accused person is a judgment within the terms ofChapter XXVI of the Code of Criminal Procedure, and that by reason of Section364 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 withinthe 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 onlya 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 bythe law that the Magistrate shall state his reasons, and I therefore take itthat if it had not been so required, it would have been unnecessary for aMagistrate to state any reasons for his order. Consequently in this point ofview the order would not constitute a judgment. And it seems to me also thatthe expression " judgment " itself indicates some final determinationof the case which would end it once for all, such as an order of conviction oracquittal.

8. In regard also to the argument which has been addressedto us on the subject, I would draw attention to the terms of Section 437 of theCode of Criminal Procedure, which enable a superior Court to order a furtherinquiry 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 tosay a complaint which has been dismissed on default of the complainant to paythe necessary process fee within a reasonable time or in a case in which theaccused has been discharged. It seems to me, therefore, that any argument whichmay be directed towards any one of these orders must be equally applicable toall three. I cannot understand from this point of view why it is necessary toapply to a superior Court before a Magistrate can hear a complaint, in which hehas acted arbitrarily or hastily in dismissing it on the ground that theprocess-fee has not been paid within the time fixed by him, if he should beafterwards satisfied that the delay was not due to neglect, but was due to somereasonable cause. I cannot understand why obstacles should be placed in theadministration of Justice, and why a complainant should not be entitled torequire a Court to try a case before it and to hear all his evidence, if thecomplainant can satisfy it that he has good grounds for his complaint. What wouldbe the position of any Magistrate, if, after an order dismissing a complaint ordischarging the accused had been passed, the complainant appeared before himwith another complaint and asked for its trial. The order of dismissal ordischarge 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 hasraised an impediment. The High Court has thought proper to hold that such anorder must be set aside by a superior Court before any Magistrate can proceedto hear such a complaint. But I have never been able to agree to this view, forit has seemed to me that there is nothing to set aside. There is no bar tofurther proceedings under the law, and, therefore, a Magistrate to whom acomplaint has been made under such circumstances is bound to proceed in themanner set out in Section 200, that is to examine the complainant, and, unlesshe has reason to distrust the truth of the complaint or for some other reasonexpressly recognised by law, such as, if he find that no offence had beencommitted, 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 todo justice to the complainant, to summon his witnesses and to hear them in thepresence of the accused.

9. The argument which seems to have been freely used tosupport this point of view is that, the accused might be constantly broughtbefore the Courts to hear the evidence on which two opinions may be formed bydifferent 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 bedone. That is a matter which may be set right by a superior Court. It certainlyis not a matter which to me seems to require that the exercise of powers whichthe law confers on a judicial officer should be curtailed generally and in allcases. This argument moreover, would not apply to a case in which the complainthad been summarily dismissed under Section 203, or dismissed on default to payprocess fees, Section 204 (3), and such cases are also within the terms ofSection 437. There can be no distinction in respect to the powers of aMagistrate in dealing with such cases. The power to act under Section 437 isonly as it were on a mandamus to order proceedings to be taken were a case hasbeen dropped, and not to restrict the power conferred by law.

10. In conclusion I would only refer to the judgment of theFull Bench of Han Pass Sanyal v. Saritulla I. L. R. (1888) Cal. 608, which hasbeen pressed on us as settling the matter now under consideration. If referencebe made to the report of the case, it will be seen that this was not one of thepoints on which the opinion of the Court was desired on the reference. It didnot necessarily arise on the reference, nor did it form the subject of argumentat the bar. The opinion expressed by the learned Judges on this subject wasonly in the course of reasoning to explain how they dealt with the entirematter. It cannot, in respect of the matter now under consideration, beregarded as finally dealing with it. I cannot, therefore, consider that theopinion so expressed is absolutely binding, though of course it is entitled tothe greatest respect, seeing that it is the opinion of six Judges of thisCourt, all of whom are Judges of great experience and learning. Whether,therefore, this point arises or not, I desire to express my opinion in thismatter, 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.

S.C. Ghose, J.

11. The question referred to the Full Bench is "whethera Presidency Magistrate is competent to revive a warrant-case triable underChapter XXI of the Code of Criminal Procedure, in which he has discharged theaccused person." This question is rather general and applies to any casewhere an order of discharge, upon whatever ground, and at whatever stage of thetrial it may be, is made.

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

13. It appears that a charge of criminal breach of trustunder Section 406 of the Penal Code was laid before one of the PresidencyMagistrates of Calcutta on the 12th of May 1900. The accused was thereuponsummoned, and on the 26th May, when the matter was taken up for trial, thecomplainant was absent, though the defendant was present; and the latter havingdenied the charge, the complaint was dismissed and the defendant was dischargedwithout any trial. A few minutes after this order was made the complainant cameinto Court and applied that the case might be "restored or"revived," stating that on account of illness he was unable to bepunctual. 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 May1900, which apparently was made under Section 259 of the Code of CriminalProcedure, was illegal, because it was a warrant-case, and the offence forwhich the accused was charged could not lawfully be compounded; but then thequestion that arises is whether he had authority to revive the complaint andorder fresh summons to issue upon the original complaint

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

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

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

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

18. There can be no doubt that the discharge of the accusedcould not operate as an acquittal, and it follows from this that if theMagistrate in this particular case was authorized under the law to alter orreview his own order, he could rightly make the order that he did make on the26th June 1900.

19. Section 869 of the Code, as already stated, prohibits ajudgment, when once pronounced, to be reviewed; and by implication it may betaken 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 downwhat a judgment should contain, but Section 370, as applicable to a PresidencyMagistrate, provides a different form for the recording of a judgment. It onlyprovides for certain particulars being mentioned in the judgment, and that inall cases in which the Magistrate inflicts imprisonment or a fine exceeding Rs.200, a brief statement of the reasons therefore should be recorded. Uponexamination of the various provisions of the Code it will be found that it isonly after the Magistrate investigates the merits of the complaint, either byexamination 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 wordsthat the case should reach a stage which entitles or requires him to pronouncea decision upon the guilt or innocence of the accused. And, if he then makeshis 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 adifference between a summons and a warrant-case. Confining myself to a warrantcase and referring to Sections 203, 252, 253 and the following section inChapter XXI of the Code, it seems to me clear that it is only when theMagistrate, after investigating into the merits of the complaint, pronounces anorder, it is a judgment. In the present case, however, the Magistrate did notso investigate the merits, but, as expressed by himself, it was "struckoff in the absence of the complainant" on the day fixed for trial. It isobvious that the case did not reach that stage which entitled him to pronouncean 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 withinthe meaning of Section 369 of the Code; and that being so, the Magistrate wasentitled to alter or review it, as he did by his order of the 26th of June ofthe same year.

21. The view that I have just expressed would be sufficientto dispose of the reference before us, but as already mentioned the questionreferred to the Full Bench is a larger question, and refers generally to allwarrant-cases in which the accused had been discharged; and the argumentsaddressed to us have been rather upon that larger question; and as the learnedChief Justice has expressed his views upon it, I feel it incumbent upon me tostate 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 whichlays down that a judgment of a Criminal Court, if once pronounced, cannot be alteredor reviewed; and I have also tried to explain in what cases the order of aMagistrate would be a judgment. Take the case of an order under Section 203which provides: "The Magistrate, before whom a complaint is made or towhom it has been transferred, may dismiss the complaint, if after examining thecomplainant and considering the result of the investigation (if any) made underSection 202 there is in his judgment no sufficient ground for proceeding. Insuch case he shall briefly record his reasons for so doing."

23. The Magistrate in such a case has to give reasons forhis order dismissing the complaint. In like manner, in making an order underSection 253 discharging the accused after examining the complainant, or aftertaking such evidence that may be produced in support of the prosecution, he hasto 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 interms it does not lay down that the reasons for making an order of dischargeshould be recorded, yet, I take it, is to be read with the other sections towhich I have just referred, and in this view of the matter I should think thatwhen after examining the complainant or after taking certain evidence, howeverincomplete such evidence may be, the Magistrate exercises his judgment upon themerits of the complaint and makes an order of discharge, it is a judgment whichunder Section 369 cannot be reviewed or altered by himself. But it has beensaid that Section 367 of the Code as applicable to Provincial Criminal Courtsdoes 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, isnot a judgment. I am unable to accede to this view; for it seems to me that thefirst paragraph of that section is applicable to all orders which are passedafter a Criminal Court exercises its judgment upon the merits of the complaint,though no doubt the following paragraphs speak of conviction or acquittal; buthowever that may be, the argument that may be drawn from the wording of thissection is hardly applicable to a judgment as referred to in Section 370.

24. But it is said that the discharge of the accused beingnot an acquittal, and there being nothing in the Code of Criminal Procedureprohibiting the Magistrate from entertaining a fresh complaint either upon thesame facts or upon additional facts, he is competent to take fresh cognizanceof the case. So far as this particular argument bears upon the present case, itcannot be applicable, for the simple reason that the application that was madeto the Magistrate after the complaint was dismissed was simply for a revivaland not a fresh complaint. But perhaps this is rather a technical view of thematter. I, therefore, pass on to the question of the general applicability ofthe argument.

25. Referring to Section 87 of the Presidency MagistratesAct IV of 1877, which was repealed by the Criminal Procedure Code of 1882, Ifind a provision similar to Section 259 of the present Code was contained init. Explanation I of that section provided--"The absence of thecomplainant, except when the offence may lawfully be compounded, shall not bedeemed sufficient ground for a discharge, if there appear other evidence of anature rendering a trial desirable." And then Explanation II laiddown:--"A discharge is not equivalent to an acquittal, and does not barthe revival of a prosecution for the same offence." The words in ExplanationII " 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 isthat the discharge of the accused does not operate as an acquittal. I mayfurther refer to the second paragraph of Section 32 of the same Act, which isanalogous to Section 203 of the present Code, with this difference that in thatparagraph there was an express provision for a revival after dismissal--whereasthere is no such provision in the present law. What do these omissions, towhich I have just referred, indicate Do not they indicate that the Legislatureintended that the Magistrate, when once he had discharged the accused, shouldnot have, on his own authority, the power to revive a complaint, or take freshcognizance of it On the other hand, instead of any provision like that whichwas 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 theHigh Court, the power to set aside an order of discharge improperly made by aMagistrate and to order further inquiry. It is, however, said that Sections 436and 437 do not apply to Presidency Magistrates: (see the observations of thelearned Chief Justice in Queen-Empress v. Dolegobind Dass I. L. R. (1900) Cal.211; but, conceding that this is so, there can be, I think, no doubt thatSections 435 and 439 are applicable; and they confer upon the High Court thepower of sending for the record of any inferior tribunal and reversing the orderof the Magistrate, including the power of ordering a further inquiry in thecase of an improper discharge--and this was the view that was adopted inrespect to an order made by a Provincial Magistrate in the Full Bench case ofHari Dass Sanyal v. Santulla I. L. R. (1888) Cal. 608. It will be observed thatthe said Chapter XXXII refers to Presidency Magistrates as also to ProvincialMagistrates, and though it may be said that Section 435 does not in terms referto Presidency Magistrates, yet the words "any inferior CriminalCourt" would include a Presidency Magistrates Court, and the High Courtis by the terms of Section 439, read with Section 423 of the Code, empowered toset aside the order of discharge and direct a further inquiry. I am here confrontedby certain observations of Sib Henry Prinsep and Hill, JJ., in the case ofCharoobala Dabee v. Barendra Nath Mazumdar I. L. R. (1899) Cal. 126 where, inreferring to the powers of the High Court under Section 439, read with Section423, they stated that the latter section "does not enable a Court ofAppeal to direct that further inquiry be made into a case in which an order ofdischarge or dismissal may have been passed Section 423 confers a power todirect a further inquiry only in respect of a case of an appeal from an orderof acquittal; and that the power is so limited is shown" by an expressenactment in Section 437 to provide for such orders being passed. To this Ineed only say that this view is opposed to the decision of the Full Bench in thecase of Hari Dass Sanyal v. Saritulla I. L. R. (1888) Cal. 608 to which I havealready 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 beforeus that the mention of the High Court in 6. 437 was not strictly necessary, andthat if it had not been mentioned it would have had under Sections 435 and 439the same powers which are here expressly given to it, still I think the mentionof the three tribunals together, the High Court, the Court of Session and theDistrict Magistrate, tends to show that the Legislature intended them to havethe same power with regard to the matter dealt with in the section." Ifthese sections, to which I have just referred, were intended only to apply tothe Provincial Magistracy, it is to my mind simply incomprehensible why theLegislature, while they omitted in the present Code the reservation in favourof a revival as embodied in Explanation II of Section 87 of Act IV of 1877, andin Section 32, paragraph 2 of the same Act, and made distinct provisions inSections 435 to 439 for setting aside an improper order or discharge by aMagistrate, should have made no such provision as regards orders made byPresidency Magistrates. And in this connection I may refer to Sections 147 and215 of the Code of 1882, which contained provisions similar to Explanation IIof s. 87 and Section 32 of the Presidency Magistrates Act, viz., the dismissalof a complaint or the discharge of the accused shall not prevent subsequentproceedings, which proviso has also been omitted in the corresponding Sections203 and 403 of the present Code. It seems to be obvious, therefore, that boththe Presidency Magistrates and the Provincial Magistrates have, under the Codeof 1882, been placed on the same footing, and the omission of the provisions ascontained in both the Presidency Magistrates Act and the Code of 1872, justreferred to, is significant as indicating the intention of the Legislature totake away from Magistrates the power which they hitherto possessed of revivingon their own authority a complaint which has once been dismissed or where theaccused 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 notopen to him to re-open the proceedings without an order of a superiorauthority, and this has been held by no less an authority than Sir HenbyPRinsep. In the case of Opoorba Kumar Sett v. Sreemutty Probod Kumary Dassi: 1 C.W.N. 49 that learned Judge, referring to MofussilMagistrates, expressed himself in these terms--"no doubt the power tore-open Criminal Proceedings after an order of discharge is not open to everyMagistrate, unless an order from some superior authority is passed directingfurther inquiry or commitment." To the same effect is the case of NilratanSen v. Jogesh Chundra Bhut-tarcharjee I. L. R. (1896) Cal. 983. as also the caseof Komal Chandra Pal v. Grow Chand Audhikari I. L. R. (1897) Cal. 286. Thesetwo latter cases have been quoted with approval by the Allahabad High Court inthe recent case of Queen-Empress v. Adam Khan : I. L. R.(1899) All. 106 And I would also refer in this connection to a case in theMadras High Court reported in Weirs Law of Offences and Criminal Procedure,page 874.

26. If then what has been repeatedly held in this Court asto the want of authority in the Provincial Magistrates re-opening proceedingsafter an order of discharge has been made be correct, it is to my mindimpossible to hold (arguing by analogy) that a Presidency Magistrate in similarcircumstances is possessed of that authority.

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

28. There may not be any express provision in the Code thatthe dismissal of a complaint shall be a bar to a fresh complaint beingentertained, so long as the order of dismissal remains unreversed; but on theother hand, as BANEBJEE, J. has observed in the case of Nilratan Sen v. JogeshChundra Bhuttarcharjee I. L. R. (1896) Cal. 983--" there is no expressprovision to the contrary, not even such as there was in Section 147 of theformer Code "--while Sections 435 to 439 of the Code authorise thesuperior criminal authority to revise the order of dismissal and to direct afurther inquiry. I do not desire to import anything into the Code which doesnot exist there; but I do say, what is there in the Code which authorizes aMagistrate, when once he has dismissed a complaint or discharged an accused, tore-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 ofan offence in one of three ways, and to investigate the same; but thesesections, 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 factspresented to the Magistrate at the time of the initiation of proceedings;otherwise the accused would be in peril of being prosecuted upon the samefacts, first of all under a complaint, then upon a Police report, and lastlyupon the Magistrates own initiation, provided only there has been no acquittalon the charge. The mischief of such a course was pointed out in the case of Inthe matter of Mohesh Mistree I. L. R. (1876) Cal. 282, where the accused wasprosecuted three times for the same offence under the old Code. And I think itis not unreasonable to suppose that, having regard to the mischief thatsometimes arose under the old Code, the Legislature took away from theMagistrates the power they possessed of reviving proceedings after the dischargeon their own authority.

29. But it is said that an order of discharge being not anacquittal, there is nothing to alter or set aside; and therefore a Magistrateis competent to take cognizance of the same matter, notwithstanding theprovisions of Section 369. No doubt, such an order is not an acquittal, anddoes not bar subsequent proceedings, but supposing that the reviving ofproceedings, after an order of discharge, is not practically to alter or setaside the previous order, the question yet arises, whether the Magistrate coulddo so on his own authority--and whether, so far as he is concerned, he isempowered to take further proceedings in respect of the same matter, withoutthe orders of a superior Court.

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

31. The first case is of Hari Singh v. Danish Mahomed (1878)20 W.R.Cri. 46. That was a case under the Code of 1872, which authorized, as Ihave already stated, the revival of proceedings after a discharge (see Section215, Explanation IT, and Section 147). Moreover, in that particular case, itwas the District Magistrate who directed fresh proceedings being taken after anorder of discharge made by a Sub-Magistrate, and it was held by Couch, ChiefJustice, that he had authority to do this. The same power exists also in thepresent Code, and the case therefore, in my opinion, does not help us in thedecision of the point at issue in the present reference.

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

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

34. The only other case that I need notice is the case ofGirish Chunder Roy v. Dwarha Nath Aganvalla : 1 C.W.N. 370.In that case the accused had been discharged by an Honorary Magistrate, andsubsequently one of the stipendiary Magistrates, upon an application being madeto 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-ordinatejurisdiction, as if he were an appellate authority, and that this he was notempowered to do. The learned Chief Justice, I observe, in the case ofQueen-Empress v. Dolegobind Dass I. L. R. (1900) Cal. 211, expressed his dissentboth from my reasoning and the conclusion I arrived at in that case. He was ofopinion that, under Section 252 of the Code, the Magistrate was bound to hearthe case upon the fresh complaint made to him, and that there was nothing inthe Procedure Code to preclude him from so doing. In the earlier part of myjudgment, I have discussed this particular point, and I need not thereforerepeat here, what I have already said. may, however, in this connection, referto the recent case of Queen-Empress v. Adam Khan : I. L. R.(1899) All. 106 decided by the Allahabad Court (Blair and Burkitt, JJ.), whereprecisely the same view which I expressed has been approved of and adopted. Thelearned Judges observed, "We think it utterly contrary to sound principlesthat one Magistrate of co-ordinate jurisdiction should, in effect andsubstance, deal with, as if it were an appeal or a matter for revision, acomplaint which had already been dismissed by a competent tribunal ofco-ordinate authority.

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

C.H. Hill, J.

36. I think that this reference should be answered in themanner proposed by my Lord, and I have little to add, confining myself to thequestion arising out of the proceedings before the Magistrate. The case ofOpoorba Kumar Sett v. Sreemuty Probod Kumary Dassi : 1 C.W.N.49 was, I think, rightly decided and ought to be followed. It would amountvirtually to a reductio ad absurdum were it to be held that, if the complainanthad renewed his complaint, after the order of discharge had been made, theMagistrate might have proceeded with the prosecution, notwithstanding thatorder, as there can be no doubt he might have done. See the judgment of theChief Justice in the case of Queen-Empress v. Dolegobind Dass I. L. R. (1900)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 takingfurther action in consequence of the circumstances that the complaint was notformally repeated by the complainant. The jurisdiction, moreover, does not restexclusively on complaint. See the remarks of Markby, J. in the case of Empressv. Donnelly I. L. R. (1877) Cal. 405 which were accepted in principle by Mr.Justice Prinsep.

37. I may add that the case of Damini Dassi v. Hurry MohanMuker-jee 4 C.W.N. 46 to the decision of which I was a party, proceeded, so faras I was concerned, on what I conceived to be the practice of the Court ratherthan upon principle. None of the cases bearing upon the question now before uswere cited, The decision cannot, I think, be sustained.

S.G. Sale, J.

38. I also agree in the answer proposed to be made in thereference by the Chief Justice and for the reasons stated in his judgment. Itseems to me that under the Criminal Procedure Code an order of discharge in awarrant case is no bar to further proceedings on the same charge, and that thisis so, irrespective of the circumstances under which the order of discharge wasmade.

Richard Harington, J.

39. I agree that the question propounded to us ought to beanswered in the terms stated by my Lord. The answer depends on whether theorder of discharge is a "judgment," or not; and though there is nodefinition that I can find of what constitutes a " judgment," thereis, 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 legalproceeding, civil or criminal, a definitive judgment, or a judgment which, ifnot appealed against, would be definitive, or a judgment which, if confirmed bysome 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 amongstthe illustrations it is pointed out that a Magistrate exercising jurisdictionin respect of a charge on which he has power to sentence to fine orimprisonment, with or without appeal, is a Judge. In this case it appears to methat at the stage of the proceedings at which this charge was dismissed, theMagistrate could not be accurately described as a Judge, because he had not, atthat stage of the proceedings, jurisdiction to pass a sentence of fine orimprisonment. All that he had jurisdiction to do was this: if no prima faciecase was made out, he was entitled to discharge the accused; if, on the otherhand, 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 adequatepunishment and, if he could, he was bound to frame a charge under Section 254of the Code of Criminal Procedure, and call upon the accused to plead to thatcharge and then proceed to try it. In my opinion, until the charge had beenframed and the accused called upon to plead to it, the Magistrate could notaccurately be described as a Judge, and any order that he made previous to theframing of the charge could not be described as a judgment. For that reason, Ithink, that the order of discharge was not a judgment. And, indeed, it isdifficult to understand how, in proceedings under Chapter XXI of the CriminalProcedure Code, an order of discharge could be called a judgment, when, at thetime 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 couldunder no circumstances be "definite," for it does not operate as anacquittal under Section 403 of the Code of Criminal Procedure. That sectionshows what constitutes a definitive judgment in a criminal case.

40. There is only one other point on which I desire to addan observation, and that is this; it was open to argument that when theMagistrate had passed the order of discharge, he became functus officio, andtherefore was unable to re-hear the case without a fresh complaint orinformation. As to this, I desire to say that that question is not the questionreferred to us; and in this particular case it is clear that the Magistrate hadnot discharged the duties which were imposed on him by Section 252 of the Codeof Criminal Procedure, and, therefore, he could not be said to be functusofficio, and moreover there is nothing to show that, when the parties appearedbefore him on the 26th of June, when the case was re-heard and a fresh summonsissued, the conditions requisite for initiating proceedings were not fulfilledand the Magistrate, therefore, was not empowered to take cognisance of the caseunder Sections 190 and 200 of the Code of Criminal Procedure.

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

Cecil Michael Wilford Brett, J.

42. I would answer the question referred to us in the mannersuggested by the learned Chief Justice for the reasons given by him in the caseof Queen-Empress v. Dolegobind Dass I. L. R. (1900) Cal. 211 and in hisjudgment just delivered, with which I agree. I agree with the broad principletherein laid down that, when a Magistrate is empowered by law to entertain acomplaint, he should exercise that power, unless there is any bar to preventhis doing so. S. 190 of the Code of Criminal Procedure gives that power to allPresidency Magistrates and an order of discharge cannot operate as a bar to theexercise of that power (see Section 403, Code of Criminal Procedure). Nor canthe provisions of Sections 435 or 439 of the Criminal Procedure Code, which areenabling sections, operate to limit the powers given to a Presidency Magistrateotherwise than under the law.

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Dwaeka Nath Mondulvs. Beni Madhab Banerjee(18.02.1901 - CALHC)