J.N. Datta, J.C.
1. This revision petition arises out of C. R. case No. 284 of 1954 on the file of the Massif Magistrate, Belonia, in which cognizance was taken under Sections 177, 224 and 353 of the Indian Penal Code. At the relevant time the case was on the file of the S. D. M., and was fixed for hearing toe prosecution evidence before charge.
2. On 5-8-1955 the complainant was absent, but the accused persons were present, and the learned S. D. M. therefore dismissed the case and discharged the accused (presumably under Section 259,, Cr. P. C). The same day later in the afternoon the complainant appeared and the S. D. M. being satisfied that he was prevented from reaching in time due to floods he reviewed his previous order and restored the case. His reference to Section 259, Cr.PC as giving him this power of review-is not at all correct, but it certainly goes to show that the learned Magistrate was purporting to act throughout under that section.
3. The revision petition against the order restoring the case to file before the Sessions Judge failed, and the accused persons have now come up before this Court, that the learned S. D, M.'s order reviewing the order of discharge was Diet-gal and without jurisdiction, and should be set aside, leaving at large the order of dismissal of the complaint and discharge of the accused persons.
4. It will be noticed that if separate trials were to be held for each offence then the offence under Section 177 was triable as a summons case, while the other offences were triable as warrant cases. But because they were being tried jointly all the offences attracted the procedure laid down for a warrant case. That point is well settled and was not disputed before me. It therefore follow that in cases to which Section 259, Cr.PC applies I the proper order would be one of discharge, even I in respect of the offence which is a summons case and not of acquittal.
5. In the present case as the offences were non-compoundable and two of them were cognizable namely, those under Sections 224 and 353. It is, therefore, clear that Section 259, Cr.PC could not be invoked, and the correct course for the Magistrate was to enforce the presence of the complainant, and his witnesses. As already observed, it being a joint trial the fact that the offence under Section 177 is not cognizable will make no difference.
6. The order of discharge was thus illegal and the question is whether the S. D. M. could set it aside. It has been urged that because of this the order was a mere nullity and the Magistrate could ignore it. To acknowledge that would be, in my opinion, opening a road fraught with danger. The position is clear. After passing the order of dismissal and discharge, the S. D. M. become functus offence and in the circumstances of the case had no jurisdiction to revive the case. The proper course would have been to bring the matter to the notice of the High Court in its, revisional jurisdiction for necessary orders.
7. But it has to be remembered that the learned S. D. M. had no jurisdiction to pass the order of discharge either. Thus to set aside the. order of revival and to restore that of discharge, cannot be certainly said to be conducive to that interests of justice. Justice does not mean the tie to one party only, but to both the pariahis, It is well settled that the High Court will not interfere in its revisional jurisdiction unless it is satisfied that it is necessary to do so to prevent an otherwise manifest and irreparable injustice.
It follows that every illegal order or error is not to be set right, nor is interference required on technical ground but only when injustice is involved or substantial questions arise. this Court will thus either set aside both the said orders of the learned Magistrate or not interfere at all. The latter course is obviously the more convenient course in the circumstances of the case.
8. The result is that the revision petition fails and is dismissed.