Francis Maclean, C.J.

1. This in an application by the accused to have the orderof commitment of the Chief Presidency Magistrate, Mr. Pearson, discharged, onthe ground that he had no jurisdiction to make the commitment, as a previousorder of discharge had not been set aside by any competent authority. The factsare as follows On the 23rd of July last the accused was arrested on the chargeof having stolen a registered letter from the Post Office, and on the 25th Julywas brought up before a Bench of Presidency Magitrates, charged with offencesunder Section 381 of the Indian Penal Code and Section 52 of the Indian PostOffice Act, 1898. He was discharged on the same day, the Bench considering thatthe evidence was insufficient to warrant "a conviction," by which Ipresume they meant a commitment. On the 6th September the accused wasre-arrested on substantially the same charge, and on the 17th October he wascommitted for trial upon further and fresh evidence --a very salient feature inthe case--to the present sessions. The point for determination is, whether thecommitment is valid, and I shall confine my remarks to the case immediatelybefore me, viz., the case of a commitment by a Presidency Magistrate.

2. It is clear that the discharge of the 25th July could inno sense operate as an acquittal of the accused, the case being a warrant-case.This has not been disputed. Consequently, when the case was brought before Mr.Pearson, he was bound to hear it under Section 252 of the Code, unless it canbe shown that he had no jurisdiction to hear it until, as is contended, theorder of the 25th July had been set aside by the High Court. "There is noexpress provision in the Code to the effect that the dismissal of a complaintshall be a bar to a fresh complaint being entertained so long as the order ofdismissal remains unreversed" see per Banerjee, J., in Nihatan Sen v.Jogesh Chundra Bhuttaeharjee I.L.R (1896). 23 Cal. 988. I agree in that. If,then, there be no express provision in the Code, what is there to warrant us isimplying or in effect introducing into the Code a provision of such seriousimport, a provision which, in certain cases, would render Section 252 of theCode almost nugatory. In the absence of any other provision in the Code tojustify such an implication--and my attention has not been directed to any suchprovision except Sections 436 and 437, which do not apply to PresidencyMagistrates--I can appreciate no sound ground for the Court so acting; were itto do so it would go perilously near to legislating, instead of confiningitself to construing the Acts of the Legislature.

3. Moreover, it seems contradictory to say that, whilst theorder of discharge in a case such as the present does not amount to anacquittal, it is yet necessary to have it discharged by the High Court beforeeither the same or another Magistrate of co-ordinate jurisdiction can hear thecomplaint under Section 252. Neither necessity nor convenience warrants such aconclusion; there is nothing in the Code which compels it: and the balance ofthe decided cases appears to be against it. The cases of Hari Singh v. DansihMahomed (1878) 20 W.R.C.R. 46. [decided so far back as 1873], the clear dictumof Markby, J., concurred in by Prinsep, J., in Empress v. Donnelly I.L.R (1877). 2 Cal. 411 [LQ/CalHC/1964/239] ; Queen-Empress v. Puran I.L.R (1886) . 9 All. 85 and Virankutti v.Chiyamu I.L.R.(1884) 7 Mad. 557 support the view of the Crown. These were notcases relating to Presidency Magistrates, but in the case of Opoorba Kumar Settv. Probod Kumary Dassi : 1 C.W.N. 49 the precise point nowunder discussion was decided by Prinsep and Trevlyan, JJ., and decided againstthe contention of the present accused.

4. On the other side, reliance is placed upon the cases ofNilratan Sen v. Jogesh Ghundra Bhuttacharjee I.L.R. (1896) 23 Cal. 983 and GrishChunder Roy v. Dwarka Dass Agarivallah I.L.R (1897) 1 . 24 Cal. 528. The formerwas not concerned with the case of a fresh commitment by a PresidencyMagistrate and the argument therefore based upon Sections 436 and 437 of theCriminal Procedure Code, which do not apply to Presidency Magistrates, andwhich argument as I read the case was the foundation of that judgment (see page988 per Banerjee, J.) can have no application to the case now before the Court.I notice that OKinealy, J., in that case rests his decision upon "theconstant practice of this Court," as to which one might feel some doubt,having regard to the cases I have referred to. The case, however, of GrishChunder Roy v. Dwarka Dass Agarwalluh I.L.R. (1897) 1 24 Cal. 528 is distinctlyin point, and I respectfully dissent both from its reasoning and itsconclusion. It is fallacious to treat the second hearing as an appeal from thedecision on the first hearing, and to say there is no provision in the Code forsuch an appeal. This argument overlooks the fact that the Magistrate is boundto hear the case under Section 252, unless the Code precludes him from so doinguntil the previous order of discharge has been set aside. But, as I havealready pointed out, the Code does not do that either expressly or by necessaryimplication. Again, the learned Judges distinguish the case of Opoorba KumarSett v. Probod Kumary Dassi : 1 C.W.N. 49 on the ground thatthere the order for the issue of fresh process was made by the same Magistratewho had discharged the accused. But what difference can that make if the realprinciple be that no fresh process can he issued unless and until the previousorder of discharge has been set aside by the High Court. If the principle bethat the previous order of discharge must be set aside by the High Court--andthat is the principle contended for--before fresh process can issue, it wouldamount to an absurdity to say that the same Magistrate can issue such process,though the order has not been set aside, but that another Magistrate ofco-ordinate jurisdiction cannot do so, but must wait till the order has beenset aside.

5. There is one feature in the last two cases I havementioned which, quash the facts but not the principle, distinguishes them fromthe present: in both these cases the order for issue of fresh process was madeon the same evidence. That is not the case here: and, upon this point, I onlydesire to add that no Presidency Magistrate ought, in my opinion, to rehear acase previously dealt with by a Magistrate of co-ordinate jurisdiction upon thesame evidence only, unless he is plainly satisfied that there has been somemanifest error or manifest miscarriage of justice. Whilst fully recognizingthat we must follow the law and practice as laid down in the Indian Codes, itis perhaps not wholly immaterial to mention, looking to the source from whichthose Code have in a great measure originated, that the view I have laid downabove is consistent with that which holds in Criminal Courts in England.

6. For these reasons I refuse the application to quash thecommitment.

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Queen-Empbess vs.Dolegobind Dass (18.12.1900 - CALHC)