K.N. Singh vs State of West Bengal

T.P. Mukherji, J.—This Rule calls upon the Chief Presidency Magistrate, Calcutta, to show cause why the order passed by a Presidency Magistrate on July 4, 1965, whereby he revived a case in which earlier that day the accused had been discharged u/s 259, Criminal Procedure Code, should not be set aside on the ground that the learned Magistrate had no power under the Code to revive that case. The Petitioner was prosecuted before the Magistrate for offences under Sections 448/504/352, I.P.C. July 14 and 15, 1965, were fixed for prosecution witnesses. On July 14 the Magistrate passed the following order:

Accused present. Complainant is absent on repeated calls. No petition filed for the complainant who is absent. It is now 12 noon! Accused is discharged u/s 259, Cri.P.C.

The complainant subsequently appeared and a petition for revival of the case having been filed the following order was made:

Later, complainant appears later and prays for revival of the case by a petition. The case is revived. Issue fresh summons u/s 355/448/504, I.P.C. To 28.7.65 for appearance of the accused.

The accused appeared on the date fixed and was let out on executing a P.R. Bond. Thereafter, he moved this Court and obtained the present Rule challenging the competence of the learned Magistrate to revive the case.

Mr. N. C. Banerjee, appearing in support of the Rule, contended that the Magistrate had no power after an accused is discharged to revive the case on the petition of the complainant. The second order of the learned Magistrate quoted above is further taken exception to on the ground that a summons can only issue u/s 204 of the Code after cognizance is taken of the offence and the Magistrate taking cognizance is satisfied that there is sufficient ground for proceeding with the complaint. As, according to him, this is the only procedure for issue of a summons, taking of cognizance and satisfaction about sufficiency of the ground for proceeding with the complaint are conditions precedent thereto and these conditions not being present after an order for discharge is made, the order for issue of the process is liable to be struck down. The remedy of the complainant, according to Mr. Banerjee, further was either by way of a revisional application against the order of discharge u/s 436 of the Code or a fresh complaint of which cognizance could be taken u/s 200.

On behalf of the opposite party reference is made to the Full Bench decision in Dwarka Nath Mondal v. Beni Madhab Banerjee (F.B.). C.W.N. 457 There the accused was summoned by a Presidency Magistrate u/s 406, I.P.C., and on the case coming on for hearing the Magistrate recorded the following order:

The complainant is absent. Defendant denies the charge. Dismissed. Defendant is discharged.

As the order could not be legally passed u/s 259 of the Code, the offence of criminal breach of trust not being legally compound-able, the complainant applied for revival of the case and the Magistrate passed the following order a month after the above order of discharge:

Heard both the parties at length. The complainant in this case was absent when his name was called by few minutes.

It is I think fair that this case should be revived.... I, therefore, revive the case and order the re-issue of summons.

Against this order the accused moved this Court and the matter ultimately came up before a Full Bench. The decision of the Full Bench was that the Presidency Magistrate is competent to rehear a warrant case triable under Chap. 21 of the Code of Criminal Procedure in which he has discharged the accused persons. The decision of the Full Bench rested on the consideration that an order of discharge such as was made in the case was not a judgment u/s 370 of the Code and that so long as a judgment is not passed in the case nothing stands in the way of review of an order that is made by the Magistrate.

3.1 The above Full Bench decision was approved in another Full Bench decision in Mir Ahwad Hossain v. Mohamed Askari (1902) LJL.R. 29 Cal. 726. The accused in the case was discharged u/s 253 of the Code of Criminal Procedure in respect of offence under Sections 295, 297, I.P.C., on the complainant putting in a petition stating that he was willing to withdraw the case as the accused had apologized. That was on July 27, 1901. The accused subsequently on the same date filed a petition stating that he had not apologized. On July 31, the complainant applied to the Magistrate praying for revival of the case and the Magistrate passed the following order:

Summon the accused under Sections 295/297, I.P.C., for the 15th August 1901.

It may be noted in this connection that Dwarka Nath Mondal''s case ( Supra) arose out of an order passed by a Presidency Magistrate while the present case arose out of an order made by a mofussil Magistrate. The Full Bench approved of the earlier Full Bench decision and held that the Magistrate in a warrant case having passed an order of discharge is competent to take fresh proceedings and issue process against the accused in respect of the same offence without an order for further enquiry under the present Section 436 of the Code of Criminal Procedure. In this case also the learned Judge held that the order of discharge was not a judgment within the meaning of that expression in Section 367 of the Code and that, as such, it was capable of review by the Magistrate.

Reference was made on behalf of the opposite party to the case In Re: Wasudeo Narayan Phadnis and Others, where a Magistrate discharged an accused on the non-appearance of the complainant u/s 259. The complainant appeared before the Magistrate on the same day within an hour after the case was called out with a prayer for rehearing with a reasonable explanation for the delay in his appearance. The non-appearance was excused and the order of discharge was set aside. It was held that as a Magistrate has jurisdiction to take cognizance of the same offence again when a fresh complaint is brought on the same facts, it is possible to argue that the Magistrate is not deprived of his jurisdiction when instead of filing a new complaint the complainant makes an application to him to revive the original complaint and that the Magistrate is competent to rehear the case by reviving the original complaint. On a review of the decisions of the various High Courts including the Full Bench decisions of the Calcutta High Court referred to above, it was held that the order of revival in the case was not bad in law.

It is true that after an order of discharge u/s 259 is made, a fresh complaint would lie on the same allegations. It is also true that the order of discharge is liable to be challenged by a revisional application to the High Court and it is further true that the Code of Criminal Procedure has made no provision for rehearing or revival of a case after it has ended in an order of discharge u/s 259. This last consideration is not an absolute impediment to entertaining an application for rehearing inasmuch as the Code is not exhaustive. On matters specifically dealt with by it the Code must be deemed to be exhaustive, but when there is no specific provision, Criminal Courts have the power to mould the procedure to enable them to pass such orders as the ends of justice might demand. When an accused is discharged u/s 259 of the Code, a fresh complaint on the same facts would lie and the accused would be liable to be called upon to answer the very same charge before the same Magistrate. If on sufficient grounds being shown the Magistrate himself reconsidered his order and asked the accused to reappear to answer the charge, there cannot be anything inherent in that order which could be successfully challenged as improper. u/s 369 of the Code the power of the Magistrate to alter or review his judgment is restricted. By implication there is no restriction to the review of an order which does not constitute a judgment and an order of discharge u/s 259 of the Code without consideration of the allegation on merits is not a judgment. The order for issue of summons after vacating the order of discharge or directing a rehearing or revival of the case is not an order for issue of process u/s 204 of the Code. Nothing stands in the way of interpreting that order for issue of process as one for service of notice on the accused persons to reappear for answering the charge.

Considering the aspects of the matter dealt with above, I am disposed to hold that there may be Circumstances in a case which will justify the rehearing of the complaint after an accused has been discharged u/s 259 of the Code without a consideration of the allegations on merits. The circumstances in which the order of discharge in this case was rescinded and a rehearing was ordered is in my view one such circumstance which justifies that order. Procedure and form are the hand maiden of justice and are not the master and should not be allowed to be used to hamper or to delay or defeat justice unless a particular procedure or form is prescribed and dictated by the law.

In the above view of the matter, I see no reason to interfere with the order moved against. The Rule, accordingly, stands discharged. The record be sent down as expeditiously as possible with a direction to the learned Magistrate to proceed with the trial in accordance with law.