Rajvi Roop Singh, J.C.
1. This is a reference made by the learned Sessions Judge of Tripura under Section 438 Cr. P. C. recommending that the order dated 30-3-63 passed by the learned Magistrate First Class, Sadar, in C.R. Case No. 931 of 1982 be set aside.
2. The facts out of which this reference arises are briefly as follows:
3. On 2nd June, 1961 the opposite party Sudhir Kumar Bhowmik filed a petition of complaint before the Sub-Divisional Magistrate, Agartala, Tripura to the effect that on the previous day at about 5 p. m. taking advantage of his absence from his house the two accused petitioners Rangamoyee Choudhury and Sadhana Choudhury who were related as mother-in-law and daughter-in-law entered into his courtyard, plucked 8 jack-fruits from two Jack-fruit trees and took them away and that when the complainant's wife Nihar Kana Bhowmik went to the house of the petitioners to question them about their conduct, the accused Rangamoyee Choudhury assaulted her with a dao, The accused petitioners having been summoned were discharged under Section 253(2) Cr. P. C. under the order of Shri K. P. Chakraborty, Magistrate Ist Class dated 16-8-61 passed in C. R. Case No. 375 of 1961 and an application for revision under Section 436 Cr. P, C. having been moved by the complainant before the Sessions Judge, Tripura against the said order of discharge, the then Sessions Judge by his order dated 27-1-62 passed in Cr. Motion No. 108 of 1961 set aside the order of discharge and sent the case back for a further enquiry in accordance with law.
In pursuance of the order of the Sessions Judge Shri K. P. Chakraborty, Sub-Divisional Magistrate transferred the case to the file of Shri S. K. Chakraborty, Magistrate Ist Class for disposal by his order dated 21-5-62. Thereafter 5 witnesses having been examined by the complainant and cross-examined by the defence, the learned Magistrate Shri S. K. Chakraborty, by his order dated 14-12-62, discharged both the accused petitioners under Section 253 (1) Cr. P, C. upon an observation to the following effect:
From all these evidences I come to the finding that there is a dispute regarding the boundary between the complainant and the accused. So, prima-facie case under Section 379 I. P. C. cannot be said to have been made out.
Thereafter on 19-12-62 the opposite party filed yet another petition of complaint on the same allegation against the two petitioners and Shri W. U. Molla Magistrate First Class took cognizance of the offence and recorded the statement of the complainant under Section 200 Cr. P. C. The petitioners having been summoned in Case No. C.R. 931 of 1962 on the basis of this fresh petition of complaint under the orders of Shri W. U. Molla, Magistrate First Class dated 20-12-62 the petitioners appeared on 5-1-63 and filed a petition stating that the present case was not maintainable in view of the fact that the accused persons were discharged under Section 253 (1) Cr. P. C. under the orders of the Magistrate Shrl S. K. Chakraborty.
It appears that the case was dealt with by Shri K. P. Chakraborty, Sub-Divisional Magistrate on 5-1-63 and the petitioners filed the petition on that day. The S. D. M. Shri K. P, Chakraborty, who heard arguments at length on the petition, however, could not pass any order for the reason recorded in his order dated 23-3-63 to the effect 'As 1 am under order of transfer, this may be heard by my successor and orders may be passed by him. To 30-3-63,' On 30-3-03 Shri S. R. Chakraborty, Magistrate, Ist Class who succeeded Shri K. P. Chakraborty as Sub-Divisional Magistrate passed the Impugned order to the following effect:
It appears that order to Issue summons was there and as such the learned Magistrate took cognizance. As such the proceedings be started with after necessary Issue of summonses to the P. Ws. I have ordered the same after allowing much time to the learned Counsel for the accused. To 26-4-63.
4. Being aggrieved with this order of the learned Magistrate, Shrimati Kangamoyee Choudhury and Smt. Sadhana Choudhury, preferred a criminal revision to the Court of learned Sessions Judge. The learned Sessions Judge has made this reference for quashing the order of learned Magistrate.
5. Heard the learned lawyers appearing on both sides and perused the record of the case. Shri N. L. Choudhury while supporting the reference vehemently urged that an order of discharge cannot be a bar to the trial of a person discharged for the same offence of which he was discharged, but it would be highly Inconvenient to allow successive trials of complaints based on same allegations by different Magistrates and different Courts after a previous complaint based on same facts has been dismissed by a competent Court. It was further averred that it is contrary to sound principles that one Magistrate of co-ordinate jurisdiction should in effect and substance deal with as if it were an appeal or revision, a complaint which had already been dismissed by a competent Magistrate of co-ordinate authority. A trial of such complaint is barred. In support of this argument he placed reliance on the case reported in Gur Charan v. State (S) : AIR1957All557 where. In Asthana J. observed as follows:
Once an accused person has been discharged or a complaint is dismissed by a competent Magistrate in respect of a particular cause of action he should not be harassed in successive trials before different Magistrates in respect of the same cause of action. Where an accused person has been improperly discharged the proper remedy for the complainant Is to go up in revision against the order of discharge, and it is for the revisional Court to decide whether the discharge is proper one or not, and in case the discharge is not justified on the material on the record, it may direct further inquiry into the matter or pass such orders as may be appropriate in the circumstances of the case.
The learned lawyer pointed out that in this case on 16-8-61 Shri K. P. Chakraborty Magistrate First Class, discharged the accused under Section 253 (2) Cr. P. C. The complainant filed a revision petition against this order and the Sessions Judge vide his order dated 27-1-62, set aside the order of discharge and sent back the case for further inquiry in accordance with law. Thereupon, Shri S. K. Chakraborty after examination of 5 P.Ws. discharged the accused under Section 253 (1) Cr. P. C. by his order dated 14-12-62. After that on 19-12-62 the complainant opposite party filed another complaint on the same allegation and Shri W. U. Molla Magistrate First Class took cognizance of the offence. Thereafter the case was transferred to the file of Shri. S. R. Chakraborty and he summoned the witnesses. As pointed out above, in this case the complaint was dismissed by a Magistrate of, co-ordinate authority; therefore this 2nd complaint is barred.
6. There is a conflict of decisions as to Whether another Magistrate of co-ordinate or Inferior Jurisdiction can start a fresh prosecution against the accused for the same offence. It has been held by the High Courts of Bombay, Madras, Rangoon, Nagpur, the Chief Court of the Punjab and by the Judicial Commissioner's Court of Peshawar that a fresh prosecution can be started by such Magistrate. A contrary view is held by the High Courts of Allahabad and Calcutta and by the Judicial Commissioner's Court of Sind on the ground that it would be contrary to sound principles to allow one Magistrate to practically displace the orders of another Magistrate of equal rank and power.
7. As a salutary rule of law it is not desirable that the accused who has been discharged by one Magistrate and without that order being set aside, should be tried by another Magistrate on a fresh complaint. The correct course for the complainant to adopt would be to make an application under Section 436 to the Sessions Judge or the District Magistrate for a further Inquiry. But there is no absolute legal bar to entertain the second complaint and it is now well-settled that a fresh complaint on the same facts can lie when the previous complaint has been dismissed under Section 203 or when the accused persons have been discharged under Section 253 or Section 259, Cr. P. C. Moreover, a discharge or a dismissal of complaint is not acquittal under Section 403 Cr. P, C. and does not bar fresh proceedings by the same Magistrate or a Magistrate of a co-ordinate jurisdiction against the accused on the same offence without an order for fresh inquiry under Section 437. In support of it I may cite the case reported in Khanimullah v. Emperor AIR 1947 Pesh 19. In this case Ram Labhaya J. observed as follows:
With profound respect to the learned Judges of Allahabad and Calcutta High Courts, who adopted the view that it would be contrary to sound principle to allow one Magistrate to practically displace the orders of another Magistrate of equal rank and powers, we find no justification for interpreting the explanation to Section 403, Cr. P. C. in this matter. The effect of 'Explanation to Section 403 is that a fresh trial is barred only in cases of acquittal or conviction. The order of discharge has not got that effect, Fresh proceedings against a person discharged are permitted by law. It cannot be said that the fresh proceedings must be taken in the Court which originally heard the case. There is no warrant for so limiting the effect of the words of the Explanation. It is open to the same Court or any other Court of co-ordinate jurisdiction to take fresh proceedings against an accused person even on the same facts without getting the order of discharge set aside by any higher authority.
8. The next question which is of considerable importance in this case is whether the order passed by the Magistrate can be deemed to be correct under Section 403 Cr. P. C.
9. Shri N. L. Choudhury contended that in this case the accused persons were discharged under Section 253(1) Cr. P. C. by a competent Magistrate therefore it bars the second complaint on the same facts. The Government Advocate on the other hand averred that a discharge or a dismissal of a complaint is not acquittal under Section 403 Cr. P. C. and does not bar fresh proceedings by the same Magistrate or a Magistrate of co-ordinate jurisdiction against the accused on the same offence without an order of fresh enquiry under Section 437 Cr. P. C.
10. It was further contended that it is nobody's case that the orders of discharge in the first two charge sheets were passed after the framing of the charges. Therefore the order of discharge Is no bar to fresh prosecution. in support of his contention he placed reliance on the case reported in Abdul Hamid v. State of Tripura AIR 1958 Tripura 1. In this case Shri Datta J. C. observed as follows:
When the order of discharge is passed before the framing of the charges the order of discharge is the correct order and it will not operate as a bar to fresh prosecution.
11. After having given this matter my most careful and earnest consideration and fully pondering over the rival arguments, I find that there is great merit in the contention of Government Advocate. The order of discharge does not amount to an order of acquittal and as Section 403 merely creates bar against persons once convicted or acquitted for not being tried again (or the same offence, this section cannot help the petitioners in the present case.
12. Section 403 Cr. P. C. runs as follows:
403 : (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1).
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not. competent to try the offence with which he is subsequently charged.
(5) ..... .....
Explanation - The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273 is not an acquittal for the purposes of this section.
A perusal of the section clearly shows that mere discharge of an accused cannot be deemed to be his acquittal. The explanation to Section 403, Cr. P. C,, states that a dismissal of a complaint or discharge of the accused is not an acquittal for the purposes of this section. If the Legislature had Intended to qualify this explanation so that the dismissal of the complaint or the discharge of the accused is to be a bar to fresh proceedings on the same facts unless the order of dismissal or discharge is set aside by a higher Court, the Legislature would have said so either explicitly or by omitting the explanation altogether. The effect of the explanation is that a fresh trial is barred only in cases of acquittal or conviction. The order of discharge has not got that effect. Fresh proceedings against a person discharged are permitted by law. It cannot be said that the fresh proceedings must be taken in the Court which originally heard the case. There is no warrant for so limiting the effect of the words of the explanation to Section 403. It is open to the same Court or any other Court of co-ordinate jurisdiction to take fresh proceedings against an accused person even on the same facts without getting the order of discharge set aside by any higher authority.
13. Now the last point that remains for consideration is whether by allowing the complaint, dated 19-12-62 to proceed, the present accused would be merely harassed or this is a fit case in which the case should be allowed to proceed on the merits. It Is true that a fresh enquiry or trial after the order of discharge is not actually illegal but generally speaking, it is not fair that a person against whom no prima facie case has been made out should be harrassed by a further inquiry either under the Criminal Procedure Code or any other enactment unless there are very exceptional reasons for the adoption of such course. But a distinction must be drawn between cases In which the order of discharge is passed after appreciation of the evidence with a view to determine the guilt or innocence of the accused and those in which the proceedings are terminated merely for some technical reason, such as the absence of the complainant. When a Magistrate has applied his mind to the facts of the case and discharged the accused, because in his opinion the evidence does not prima facie establish the guilt of the accused, the order amounts to a judgment within the meaning of Section 369, Cr. P, C. and it is not open to a Magistrate to review it. In other cases such as those failing under Section 259, Cr, P. C. the order of discharge is not a decision given on merits and is not a judgment and consequently the Magistrate is not debarred from reviewing it, setting it aside and reviving the old complaint.
14. In the Instant case the order of discharge dated 14-12-62 was passed under Section 253(1) Cr. P. C. on a consideration of merits after hearing the evidence. In these circumstances a further Inquiry would be unfair unless the order of discharge is manifestly perverse or foolish, or is based on a record of evidence which is obviously Incomplete. The learned Government Advocate and Shri M. C. Chakraborty failed to show that the order of discharge was palpably erroneous. The Government Advocate also failed to show that, there are new materials before the Magistrate which were not before him formerly and there is probability of the conviction of the accused persons. In view of these facts I am constrained to feel that it would bean abuse of the process of the Court if the com-plaint dated 19-12-62 is allowed to be tried and determined again by the Magistrate.
15. In view of my foregoing discussion, have therefore, no option but to accept the reference and set aside the order of the Magistrate. Hence the reference is accepted and the order of the Magistrate is hereby set aside.