Sri. Hari Ghosh vs Sushil Kumar Chakravarty

Guha Ray, J.—This Rule at the instance of the accused in a case u/s 448, Indian Penal Code, is against an order by a Magistrate resummoning him after he had been already discharged u/s 259, Code of Criminal Procedure.

The facts briefly are that on the report of the Chairman of the Rajpur Municipality to the officer in charge of Sonarpore Police Station, a charge sheet was submitted by the Police after investigation against the present Petitioner u/s 448, Indian Penal Code. The Petitioner appeared before the Magistrate and after a number of adjournments the case stood adjourned on 22-8-55 to 20-10-55. On October 20, 1955, the parties asked for time for a compromise and the Magistrate allowed them time till November 18, 1955. Further time was granted and the case stood adjourned to 19-12-55, when the following order was passed:

The defacto complaintant is absent. No petition filed on his behalf. No P. Ws. present. No prayer submitted on behalf of complainant for an adjournment. The accused is therefore discharged u/s 259, Code of Criminal Procedure.

Then on February 22, 1956, there was a petition before the Magistrate on behalf of the Chairman of the Municipality. In this petition it was stated first that the case was one, not on a complaint but under charge sheet submitted by the Police and that there was no direction on the prosecution to produce witnesses on December 19, 1955, and consequently no witnesses were produced. It was further pointed out that a discharge order u/s 259, Code of Criminal Procedure, could not be passed in the case as it was not a case on complaint.

On behalf of the Petitioner it is argued in the first place that after a proviso was added to Section 436, Code of Criminal Procedure, in 1923 it was not open to the Superior Courts, viz., the Sessions Courts and the High Court, to set aside an order of discharge without issuing a notice on the accused and consequently it could not be the intention of the legislature, that the Magistrate should set aside his own order of discharge without such a notice on the accused. It has been further argued that it is against the principle of natural justice to have that order set aside behind his back and to resummon him for the same offence from which he was already discharged by the Magistrate.

As regards the first point, Section 436, Code of Criminal Procedure, has no application whatever to proceedings before a Magistrate and if the Legislature inserted in 1923 a proviso to Section 436, Code of Criminal Procedure, requiring the Superior Court to issue a notice on the accused before an order of discharge could be set aside, the reason might be that where an order of discharge is passed on evidence, it is hardly fair to set aside that order without giving the accused an opportunity of placing before the court his estimate of the evidence on the record and where an order of discharge has been passed without any evidence being recorded, the reason might be that the Superior Court has no knowledge of the facts except what appears from the record, whereas the Magistrate before whom the parties appear, know more of the facts. In any event, Section 436 Code of Criminal Procedure having no manner of application to proceedings before a Magistrate, it cannot be argued on the strength thereof that the Magistrate is bound to give the accused notice before he is entitled to re-summon him for an offence in respect of which he has already been discharged. The question however, is whether even apart from Section 436, Code of Criminal Procedure, the Magistrate is entitled in law to resummon the accused at all when he had already passed on order of discharge although without going into evidence. In the Full Bench case Dwarka Nath Mondal v. Beni Madhab Banerjee ILR (1900) 28 Cal. 652, and in the next Full Bench case Mir Ahmad Hossein v. Mahomed Askari ILR (1902) 29 Cal. 726, the view was taken that in a warrant case, the Presidency Magistrate in the first case and a ny other Magistrate in the 2nd 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 being passed u/s 437, Code of Criminal Procedure, having the effect of setting aside such order of discharge. In each of these decisions there was a dissentient opinion. Of course both these cases were decided before the proviso to Section 436, Code of Criminal Procedure, was added in 1923, but that does not seem to us to take away the value of the two decisions. Besides, in a Bombay case In Re: Wasudeo Narayan Phadnis and Others, the matter was gone into fully and it was pointed out that where an order of discharge is passed on the merits on an appreciation of the evidence on the record, it amounts to a judgment and it is not open to a Magistrate to set aside or review his own judgment, but where an order of discharge is passed on the ground of the absence of the complainant without any evidence being recorded, it does not amount to a judgment and the Magistrate is entitled to re-hear the case by reviving the original complaint because, as it is now well settled, that a further complaint on the same facts lies even if the previous complaint has been dismissed u/s 203 Code of Criminal Procedure, or when the accused person has been discharged u/s 259, Code of Criminal Procedure. We respectfully agree with the view taken by the Bombay High Court in this case. For, in our opinion, there is no difference in principle between a case where fresh cognizance is taken on a fresh complaint after an order of discharge and a case in which without fresh cognizance being taken proceedings are started afresh by issuing fresh process on the accused.

In the other point, viz., that to resummon the accused without issuing a notice on him after an order of discharge, offends against the principle of natural justice, in our opinion there is no substance because, after all the fresh process itself gives the accused a chance of appearing before the court and representing his own case. In this case it further appears that Section 259, Code of Criminal Procedure, has no application whatever because it was not a case on a complaint but it was a case in which cognisance was taken on a police report, so that Section 259, Code of Criminal Procedure, has no manner of application to it. That being so, the Magistrate''s order was illegal and, as it was illegal, it was open to the Magistrate to ignore it completely. From this point of view also the order issuing fresh process against the accused can be justified.

This petition must accordingly be dismissed and the Rule is discharged.

Renupada Mukherjee, J.

I agree.