In Re: Balasinnatambi and Others

Muthusami Aiyar, J.—This reference arises out of Calendar Case No.133 of 1890 on the file of the 2nd Class Magistrate of Cuddalore

Taluq in the District of South Arcot. There is a place of worship called Muniyanar Kovil in the midst of a jungle in the [345] village of Perumathoor

in that Taluq. One Arunachela Gounden who was its Pujari died about 19 months ago, and upon his death, a dispute arose between his widow and

the 2nd accused as to the right of succession to the office of pujari. There is no temple at the place of worship, but the property of the shrine was

secured in a building adjacent to the house of the late pujari''s widow, the first witness for the prosecution. Her complaint, was that the building was

in her possession and that on the 14th April last, the ten accused assembled together in order to take forcible possession of the property,

committed a riot, broke into the building, and breaking open a box containing Jewels carried them off. Several witnesses gave evidence in support

of her complaint and the first and second accused produced the property alleged to have been carried away by them and others. The Police

charged the accused with offences punishable under Sections 454, 380 and 147 I.P.C. After recording the evidence for the prosecution, the

Magistrate discharged the accused on the ground that the evidence was, in his opinion, worthless. The sessions Judge after examining the record

u/s 385 Or. P.C. came to the conclusion that though very possibly there was no dishonest intention, and if so, there was no theft, yet there was a

large body of evidence given by seven witnesses for the prosecution which was materially corroborated by facts not denied, and was in

accordance with the probabilities of the case, and that the Subordinate Magistrate had not properly sifted the evidence. The Magistrate having,

however, recorded the whole of the evidence available for the prosecution, the Sessions Judge has referred for the decision of this Court the

''question whether u/s 437, Cr. P.C. it is competent to a District Magistrate or a Sessions Court or the High Court to order further inquiry or a

retrial when additional evidence is not forthcoming.

On this question, there is, as observed by the Judge, a conflict of decisions. In Queen Empress v. Amirkhan ILR (1885) M. 336 a Divisional

Bench of this Court held that Section 437 authorised further inquiry only in those cases in which other evidence was available, or the evidence

already taken had not been properly taken. In more recent decisions, however, the High Courts at Bombay and Allahabad and the majority of

Judges at Calcutta have held that such inquiry may be ordered though no fresh * evidence is forthcoming (I.L.K. 10 B. 145, 1. L.K. 9 A. 52, and

ILR 15 C 608). I do not think that the decision in Queen Empress, v. Amir khan can be supported. The term ""inquiry ""is not,, in its ordinary

acceptation, restricted to the mere taking of evidence, but it includes also a consideration of its effect in relation to the complaint forming the

subject of the inquiry. This being so, it is not clear why the expression "" further inquiry "" should not signify as well a fresh consideration of the effect

of the evidence already recorded, as a supplemental inquiry upon fresh evidence.

Again, Section 437 premises a possible miscarriage of the previous inquiry resulting in the discharge of the accused and creates a revisional

power to set right what has miscarried. Such being the intention, there is no reason were there is a perverse finding or a finding which is in all

probability wrong or manifestly at variance with the recorded evidence, it should not be liable to revision on considerations overlooked by the

Subordinate Magistrate and indicated by the revising tribunal.lt is also to be observed that the order which is the subject of the revision ? u/s 437 is

an order of discharge and not of acquittal, and that there has been no final adjudication on the guilt or innocence of the accused.

This view receives support from Section 435 which mentions "" the correctness of any finding"" as one of'' the matters to be considered whilst

examining the record of the subordinate Court.

It may further be noted that a revisional power is conferred by Section 437 in the case of an order of discharge in the same terms upon the High

Court, the Court of Session, and the District Magistrate, while Section 439 which relates exclusively to the High Court declares its revisional

powers to be the same as the powers of an Appellate Court which include a power to set aside a finding on a question of fact.

Further more, it is clear from Sections 378 and 380 that there may be further inquiry without additional evidence. It is true that Section 436

which refers to cases triable exclusively by the Court of Session, empowers that Court or the District Magistrate to order the accused to be

committed'' for trial instead of directing a "" fresh inquiry."" In this class of cases, three contingencies may possibly arise; either the evidence already

recorded by the Magistrate may warrant a. commitment upon the matter in respect of which the [347] accused has been discharged, or some

further evidence may be available, or the evidence may prove some other offence if not the offence as to which the accused has-been discharged.

In the first case '' order of discharge has to be set aside and a commitment ordered ; in the second case a supplemental inquiry has to be made,

and in the third case, inquiry has to be directed in regard to a new offence. The words, fresh inquiry, were perhaps considered appropriate as

words of reference to the second and third contingencies contemplated by the section. However this may be, there is a clear indication of an

intention not to give finality to an order of discharge which has prima facie miscarried, and I am therefore inclined to adopt the view of Mr. Justice

Wilson that no substantial distinction is intended to be denoted by the words ""fresh inquiry "" and "" further inquiry.

It is no doubt true that Section 437 of the present Code goes beyond Section 298 of the Code of 1872 under which it was often held that

neither the Court of Session nor the District Magistrate was competent to order further inquiry except upon fresh evidence in cases in which the

accused has been improperly discharged. On comparing, however, Section 435 of the present Code which formulates the grounds of revisional

jurisdiction with the corresponding Section 295 of the Code of 1872, it will be observed that the present Code gives a power to the Sessions

Court and the District Magistrate to examine into the correctness of a finding on a question of fact, whilst the Code of 1872 conferred upon them

no such power.

The intention seems to be to give a revisional jurisdiction to the Sessions Court and the District Magistrate in cases of improper discharge

concurrently with that of the High Court and to include an incorrect finding among the matters liable to revision and thereby to obivate the expense

and inconvenience with the necessity to resort to the High Court might in such cases entail. Though the power thus conferred is wide, yet it must be

remembered that it is a discretionary power confided only to the two principal tribunals in each district and that the discretion is a judicial discretion

to be exercised subject to the supervisor and control of the High Court.

Again, the general scheme of revision embodied in Rs. 435 to 439 includes within its scope a reconsideration of the evidence [348] already

recorded in cases in which the accused is improperly discharged. An incorrect finding is specified by Section 435 as one of the matters to be

examined into on revision. It is again contemplated by Section 436 as the basis of an order for commitment in cases triable exclusively by the Court

of Session. The power to order further inquiry in cases in which the accused is improperly discharged is conferred by Section 437 upon the Court

of Session and the District Magistrate in common with the High Court, while Section 439 gives to the High Court as a Court of Revision all the

powers of an Appellate Court. Section 438 gives to the Court of Session and the District Magistrate power to recommend to the High Court that

a sentence improperly passed be reversed. The true construction appears to me to consist just in reading Sections 435 and 439 together as

indicating the grounds of revisional jurisdiction and the tribunal competent to interfere in all cases, and in reading Section 438 as subsidiary to them;

second in reading Sections 436 and 437 as contemplating two classes of cases inly which a concurrent jurisdiction is given by way of special

exceptions on the ground that when an inquiry resulting in the improper discharge of the accused has miscarried, the Court of Session and the

District Magistrate should be enabled to correct the error.

I would, therefore, answer the question referred to us in the affirmative and intimate to the Sessions Judge that it is competent to him to order

further inquiry u/s 437 in the case reported for orders.

Arthur J.H. Collins, Kt. C.J.

I concur.

Parker, J.

I concur.

Shephard, J.

The section mentioned in the question referred to the Full Bench is one of the four which prescribe what action may be taken on an

examination of the record under the provisions of Section 435. The first of the four sections, Section 436 deals with cases exclusively triable by a

Courtof Session. It gives the Court of Session or District Magistrate power, in cases of an accused person having been improperly discharged, to

order him to be committed for trial. Section 437 is not restricted to any particular class of offences. It refers to the case of complaint dismissed u/s

203 or an accused discharged u/s 209 or Section 253 and authorizes the High Court or Court of Session to direct a further inquiry. The last [349]

of the four sections gives to the High Court exclusively far wider powers in dealing with cases including those in which there has been conviction or

acquittal called up by itself or reported for orders under the preceding section. As in examining the record the Court is to have regard as well to the

correctness as to the legality of the finding under consideration, it seems clear that in the absence of limiting words in the four succeeding sections,

action may be taken under any one of those four sections, on its appearing that the finding on the evidence is erroneous in point of fact. Thus on its

appearing that a Ma"" gistrate has, owing to a misappreciation of the evidence, wrongly discharged a person accused of an offence triable by the

Court of Session only, the District Magistrate may take action u/s 436. He may order'' the committal of the accused ""instead of directing a fresh

inquiry."" In a similar case it is clear from the terms of this section he may take the alternative course of directing a fresh enquiry. Except for cases

mentioned in clause (b) of Section 436 there is no provision for this fresh inquiry other than that which is found in the next section. There is the

change of expression, ''''further"" being substituted for ""fresh;"" but otherwise there is no apparent reason why inquiry which may be thought requisite

for a case coming u/s 436 should differ in its nature from that which may be directed u/s 437, in the case of offences triable by a Magistrate. If it is

expedient that the Sessions Judge should have power to re-open the inquiry respecting an offence triable by himself only, it is equally expedient ?

that he should have that power with regard to an offence which may or may not be tried by him. In niether of the cases supposed has there been

any final judgment which can be pleaded in bar to fresh proceedings and therefore it is not necessary to set aside the order of discharge.

The only argument in favour of a distinction between the inquiry provided for in Section 437 and that mentioned in Section 436 is derived from

the change of expression, the epithet further being substituted for ""fresh."" It is said that a further inquiry pre-supposes additional evidences, whereas

a fresh inquiry may mean nothing more than a re-consideration of the original evidence. This construction, of Section 437 would practically go far

to limit the application of it to cases in which the officer or Court calling for and examining the record was set in motion by some [350] party

interested in the proceeding and did not act suo motu, for usually the record itself would not disclose the possibility of further evidence being

adduced. In all other cases, however gross might the misappreciation of"" the evidence, although the inferior Magistrate might have failed to draw

obvious inferences of fact, the revising officer could do nothing but report the case for orders to the High Court.

In my opinion the two epithets may be used indifferently to denote the same sort of inquiry and it is reasonable to suppose that'' some more

distinctive expression would have been used if it had been intended to limit the scope of Section 437 in the way suggested. We cannot lose sight of

the fact that the legislature, in disregard of the rule which enjoins adherence to the same word unless a change in the sense is intended, frequently

change the expression without any intention of changing the meaning, their object as observed by a learned Judge being as would seem "" to

improve the graces of style and to avoid using the same words over and over again."" With regard to the authorities ori the question, the only one

adverse to view above taken that needs to be considered is Amir Khan''s ILR (1885) M. 336. In that case Turner chief Justice?, draws a

distinction between the expressions further inquiry and fresh inquiry and justifies his conclusion by reference to the cases cited by Prinsep u/s 253

of the Criminal Procedure Code, cases decided with referencs to the Code of 1872.

There is however a noticeable difference in the language of the present Code as compared with that of 1872. In Ss 294 and 295 of the latter,

there is not, as there is in Section 435 of the present Code, any mention of the correctness of the finding in Section 296 which in a measure

corresponds to Section 436 and Section 348 of the present Code. It-is only when the judgment or order is contrary to law or the punishment too

severe or indequate, that a case may be reported for orders of the High Court. It was only in the case of dismissals of complaints u/s 147

(corresponding to the present Section 203) that power to direct an inquiry or a further inquiry as it is called in the section as amended, was given.

It was held upon this Code that in cases not coming within Section 296, i.e. cases exclusively triable by a Sessions Court, the District Magistrate

could not order a fresh inquiry except in cases in which further evidence was forthcoming.

Considering the altered language of the present Code, I think that the inference rather is that it was intended to alter the law and give more

latitude to the Sessions Court and District Magistrate in dealing with cases of improper discharge of accused persons. I agree that the term ""further

inquiry"" means ""an inquiry in addition to that which has already been held,"" but I do not understand and why it should necessarily involve the taking

of additional evidence ; for an inquiry means more than the taking of evidence. It means also the consideration of the evidence taken. I would

adopt what Wilson, J., says with regard to the expression in Haridas Sanyal v. Saritulla ILR (1888) 15 C. 620. As is pointed out in the judgment in

the Bombay case Queen v. Dorabji Hormasji ILR (1885) 10 B. 146 the Code itself Shows that there might be a further inquiry without additisnal

evidence (see Rs. 375 and 380).

For these reasons I would answer the question referred in the affirmative.