In re: Malai and Others

King, J.—This reference is made on the assumption that the facts are governed by a decision of my own reported in Rajaratnam Pillai, In

Re: Rajaratnam Pillai, . The facts are obviously distinguishable. In Rajaratnam Pillai, In Re: Rajaratnam Pillai, , I had to deal with a case in which

the Magistrate had not only taken cognisance of an offence triable only under Chapter XX of the Code but had actually applied Sections 242 and

244 and taken evidence. In the present case though the Magistrate had issued summons to the accused for an offence u/s 426 only he did not

apply Section 242 when the accused was brought before him, but informed him then and there that on reconsideration he held that other offences

also were disclosed by the complaint, and proceeded from that moment to apply Section 252.

It is no doubt stated with some lack of precision in Rajaratnam Pillai, In Re: Rajaratnam Pillai, that when once a Magistrate has ''taken

cognisance of ''an offence which is triable only according to the procedure applicable to summons cases, etc., but the argument is clear that I was

concerned solely with Chapter XX and the provisions of Section 246. A situation such as has now arisen was not then contemplated and was

obviously not being considered. I accordingly hold that the decision in Rajaratnam Pillai, In Re: Rajaratnam Pillai, does not and cannot apply to the

facts of this case.

That a Magistrate has power to change his mind in regard to the exact offences which a complaint discloses before he begins to enquire into the

case cannot be denied on general principles--and even if it be argued that in the present case he has impliedly dismissed a complaint under other

sections of the Penal Code than Section 426 he still has power to re-entertain a complaint on the same facts without the need of any action by any

superior Court. (Vide Emperor v. Chinna Kaliappa Gounden (1905) 16 M.L.J. 79: ILR 29 Mad. 126 and Ponnuswami Gounden, In re (1931) 62

M.L.J. 469: ILR 55 Mad. 622

In the result I am unable to accept the learned Magistrate''s reference and must decline to interfere.