Authored By : Banerjee, O Kinealy

Banerjee, J.

1. This is a reference from the Sessions Judge of Nadia,recommending that the proceedings in this case from the institution of thesecond complaint be set aside on the ground that the second complaintwas-instituted alter the original complaint had been dismissed under Section203 of the Code of Criminal Procedure and before that order of dismissal wasset aside by a competent Court.

2. The facts of the case are shortly these:

On the 9th December 1895, the complainant, Jogesh ChundraBhuttacharjee,. filed a petition on behalf of Maharaja Jogendra Narain Bahadurof Natore in the Court of the Joint Magistrate of Kushtea, alleging that he hadremitted Rs. 50 through the accused to the Maharajas sadar kucherry in Joisto1300, corresponding to May or June 1893, and that when an account was beingtaken from him he discovered that the accused had credited Rs. 36 only andmisappropriated the balance Rs. 14. This petition was made over by the JointMagistrate for disposal to an Honorary Magistrate, who, after examining thecomplainant, dismissed the complaint on that same day, being of opinion thatthe case was of a civil nature.

3. On the 21st December following the complainant moved theJoint Magistrate by a petition to revise the case; and he sent the case to theDistrict Magistrate with a view to obtain an order for further enquiry; but hewas informed by the District Magistrate that, as the complaint had not beeninstituted on behalf of the Maharaja who was the rightful owner of the moneyalleged to have been misappropriated, he did not consider it necessary to ordera further enquiry.

4. On the 21st February 1896 the complainant, Jogesh ChundraBhuttacharjee, filed in the Joint Magistrates Court of Kushtea a freshpetition of complaint on behalf of the Maharaja Jogendra Narain Rai Bahadur,stating substantially the same facts as those set out in his first petition,and the Joint Magistrate ordered the issue of a warrant against the accused, andafter taking evidence for the prosecution drew up a charge against him underSection 406 of the Indian Penal Code on the 23rd April 1896. Thereupon theaccused moved the Sessions Judge who has referred the case to us.

5. These being the facts of the case, the question thatarises for consideration is: Are the proceedings of the Joint Magistrate takenin the case upon the second petition of complaint regular and valid, or oughtthey to be set aside The answer to this question depends, no doubt, to someextent upon the answer to another question, namely, whether the dismissal ofthe complaint on the 9th of December was a proper one. last question beanswered in the affirmative, the proceedings of the Joint Magistrate ought tobe set aside. If, on the other hand, the last mentioned question is answered inthe negative, then there will remain the further question, whether,notwithstanding that the dismissal of the original complaint was an improperone and ought to be set aside, and a further enquiry directed, the proceedingstaken by the Joint Magistrate upon the second petition of complaint before thedismissal of the first complaint was set aside, and after the DistrictMagistrate had declined to interfere in. the matter, should not be held to beirregular and invalid and therefore set aside and an enquiry directed to bemade de now.

6. Now, with reference to the question whether the dismissalof the original complaint on the 9th December 1895 was a proper one, theconclusion we have arrived at is that the answer should be in the negative. Theground of the dismissal, as stated in the order of the Honorary Magistrate, isthat the case is of a civil nature. This does not appear to us to be a validground, having regard to the facts stated by the complainant in hisexamination. If the complainant is to be believed there does not appear anygood reason for thinking that the case ought not to be proceeded with anyfurther. If, considering the smallness of the amount in regard to which thecriminal breach of trust is said to have been committed, and the lapse of timeafter which the complaint was lodged, the Honorary Magistrate had found reasonto distrust the truth of the complainants case and dismissed it accordingly,that might have been another matter; but that was not the ground of dismissalhere. Considering all the circumstances of the case, and seeing that the firstcomplaint was dismissed immediately after the examination of the complainant,and without any further enquiry, we are not prepared to hold that the dismissalwas a proper one. We think the case is one in which there ought to be a furtherenquiry.

7. But then arises the question stated last, namely, whetherthe enquiry ought now to commence de novo, or whether the case that has beeninstituted in the Joint Magistrates Court upon the second complaint should beallowed to go on from the stage it has reached. It was argued by Babu KaliCharan Banerjee, who appeared for the prosecution, in the first place, that thedismissal of the original complaint under Section 203 of the Code of CriminalProcedure was no bar to the institution of fresh proceedings upon a newcomplaint, and in support of this argument the case of The Queen-Empress v.Puran I.L.R. 9 All. 85 was cited; and in the second place that, even if thatdismissal stood in the way of fresh proceedings being taken, the order of thisCourt setting it aside will remove every possible objection to the validity ofthe fresh proceedings, so that they may go on from the point they have reached.On the other hand, it was contended by Babu Surendro Chandra Sen, who appearedfor the accused, that, though the dismissal of a complaint under Section 203does not operate as an acquittal, still before it is set aside in the mannerprovided by law, no fresh proceedings can be taken, and such proceedings ashave been taken before the order of dismissal was reversed should be set asideas illegal; and he further urged, apparently with good reason, that hisobjection to the proceedings already taken being allowed to stand, was not amere technical objection, as a part of the proceedings, namely, that relatingto the examination of a certain witness who was ordered to be examined bycommission, has been irregular and the irregularity has prejudiced the accused,and if the proceedings are commenced de novo he will have a further opportunityof having that witness examined.

8. The question raised is an important one, and is by nomeans free from difficulty. Section 403 of the Code of Criminal Procedure nodoubt expressly provides in the explanation to it that the dismissal of acomplaint is not an acquittal, and there is no express provision in the Code tothe effect that the dismissal of a complaint shall be a bar to a freshcomplaint being entertained so long as the order of dismissal remainsunreversed. But, on the other hand, there is no express provision to thecontrary, not even such as there was in Section 147 of the former Code (Act Xof 1872); while Section 437 provides that "the High Court or the Court ofSessions may direct the District Magistrate, by himself or by any of theMagistrates subordinate to him, to make, and the District Magistrate mayhimself make or direct any Subordinate Magistrate to make a further enquiryinto any complaint which has been dismissed under Section 203, or into the caseof any accused person who has been discharged." When the Code thereforedistinctly lays down a procedure for having an order dismissing a complaintunder Section 203 or discharging an accused person set aside and a furtherenquiry directed, it seems to me reasonable to conclude that the Legislatureintends that an order of dismissal of a complaint or discharge of an accusedperson should be interfered with only in the manner provided. The opposite viewwould lead to the anomalous and unreasonable result that, notwithstanding thedismissal of a complaint or the discharge of an accused person after anelaborate enquiry by one Magistrate, another Magistrate may, merely upon afresh complaint being filed, take proceedings against the accused again for thesame offence and on the same evidence, though he has no authority, as a Courtof appeal or revision, to examine the correctness of the previous order made inthe case. Section 403 of the Code of Criminal Procedure merely declares that anorder of discharge or dismissal of a complaint is not an acquittal. That onlyshows that it is not a bar to fresh proceedings in the same way as an acquittalis, but it does not show that an order of discharge or dismissal of a complaintis to have no effect at all, and that fresh proceedings may be institutedwithout any notice being taken of such an order. The practice of this Court, asfar as we are aware, has been in accordance with the view we take. That view isalso in accordance with the rulings of the Madras High Court which are strongauthority in its favour, seeing that they are rulings under the old Code (Act Xof 1872), Section 147 of which might be taken to be more in favour of theopposite view than anything contained in the present Code (see proceedings No.671, 28th March 1878, and No. 1883, 14th November 1878) (Weir, pp. 874-75). Inthe present case the subsequent proceedings were taken, not only after theorder of dismissal of the first complaint, but also after the Magistrate of theDistrict had declined to interfere with it, and to order a further enquiry,though upon an erroneous ground-erroneous, because it appears from the originalpetition of complaint that the complaint was preferred by Jogesh ChundraBhuttacharjee on behalf of Maharaja Jogendra Narain Rai Bahadur. The learnedJoint Magistrate in his explanation says that he took up the enquiry becausethe complainant on the second occasion was a different person. I do not thinkthat this view of the matter is correct. It is true that in the second petitionthe complainant is described as Maharaja Jogendra Nath Rai, through hiskarpardaz Jogesh Chundra Bhuttacharjee, whereas in the first petition he isdescribed as Jogesh Chundra Bhuttacharjee on behalf of the Maharaja Jogendra.Narain Rai, but the person examined as the complainant was Jogesh ChundraBhuttacharjee in both cases.

9. Then as regards the case of the Queen Empress v. PuranI.L.R. All. 85 relied upon by Baboo Kali Churn Barterjee, I think that it isdistinguishable, from the present in two respects. In the first place, therethe second complaint was entertained by the very same Magistrate that haddismissed the first, and so the anomaly of one Magistrate sitting in judgmentupon the propriety of an order of another Magistrate of co-ordinatejurisdiction did not :arise; and in the next place, there the objection to theproceedings was taken after conviction, and so it might perhaps have beendeemed (though that is not stated in the judgment) to be met by Section 537 ofthe Criminal Procedure Code. But be that as it may, I am not prepared to followit in the present case.

10. For the foregoing reasons I am of opinion that theproceedings of the Joint Magistrate of Kushtea in this case were irregular andinvalid by reason of their having been taken whilst the order of dismissal ofthe original complaint was in force.

11. It remains now to consider whether our setting asidethat order and directing a further enquiry, as we propose to do, has not theeffect of validating those proceedings, regard being had to the provisions ofSection 537 of the Code of Criminal Procedure. I am of opinion that in thecircumstances of this case they ought not to be allowed to go on, and that theproper course will be to commence the enquiry de novo.

12. Moreover, I do not think that Section 537 is intended toapply to a case like the present, which has not been finally disposed of. Thatsection provides that no finding, sentence or order passed by a Court ofcompetent jurisdiction shall be reversed or altered in revision or appeal byreason of any error, omission or irregularity in certain respects, unless sucherror, omission or irregularity has occasioned a failure of justice.

13. The test prescribed for determining whether such error,omission or irregularity should be a ground for setting aside an order is thusone which can be properly applied only after the final result of the case isknown. When an objection is taken on the ground of there being a materialerror, omission or irregularity before a case is finally disposed of, and whilethere is time to correct the same, it would be unreasonable to hold thatSection 537 intends the error, omission or irregularity to be allowed to remainuncorrected. To hold that would be to give to Section 537 the effect, not onlyof curing mere formal defects of procedure when discovered too late, but ofpractically subverting all procedure. Such a view is clearly opposed to thedecision of this Court in Raj Chundra, Mozumdar v. Gour Chundra Mozumdar I.L.R.Cal. 176.

14. The result then is that the proceedings of the JointMagistrate of Kushtea in this case, from the institution of the secondcomplaint, should in my opinion be set aside, the order of dismissal of theoriginal complaint dated the 9th of December 1895 should also be sot aside, andthe District Magistrate directed under Section 437 of the Code of CriminalProcedure, by himself or by any of the Magistrates subordinate to him, to makefurther enquiry into the complaint in this case which has been dismissed underSection 203.

O Kinealy, J.

15. So far as I can ascertain it has been the constantpractice of this Court, since the introduction of the Code, to prevent newproceedings when the first complaint has been disposed of by an order underSection 203 until that order is set aside. I am content, therefore, to followthat practice in the present case without any further discussion. I thereforeagree that the subsequent proceedings should in this particular case be setaside. Looking also at the reasons given for the disposal of the case underSection 203, I think that the order should not be allowed to stand in the wayof a further enquiry; and setting it also aside, I agree with my colleague thata further enquiry should be made as directed.

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Jogesh Chundra Bhuttacharjeevs. Nilratan Sen (11.08.1896 -CALHC)