Brij Narain, J.C.
1. This is a criminal reference under Section 438 Cr. P. C., made by the learned Sessions Judge, Tripura by means of his order dated 2nd June 1955 in criminal motion no. 12 of 1955 recommending that the order passed by the learned S. D. M., Dharmanagar Sri N. K. Sinha dated 19th March, 1955, by which the complaint dated 30th December, 1954 was rejected on the ground that a fresh case could not be started upon the same facts as had been alleged by the complainant before the Court in a prior complaint which formed the basis of criminal case no. 61 of 1954 and in which the accused were discharged on 2nd August 1954 after the complainant's evidence had been recorded on material points by the learned Magistrate.
2. It appears that the present petitioner at first brought a complaint in the Court of the S.D.M., Dharmanagar under Section 379 I. P. C., against the opposite parties complaining that the latter had cut and removed bamboos grown on the land of the petitioner on 6th March 1954. This complaint was registered as criminal case no. 61 of 1954 and it was transferred to Sri N. Sinha, Assistant Magistrate for disposal. Evidence was adduced by the complainant in order to prove the allegations made in the complaint but the learned Magistrate discharged the accused on 2nd August 1954 on the ground that the evidence adduced was not sufficient to establish a prima facie case against the opposite parties.
The petitioner did not file any revision against this order of the discharge but he filed a present fresh complaint on the same facts and occurrence on 30th December 1954 in the Court of the S.D.M., Dharmanagar. The S.D.M., Dharmanagar transferred this case to the Court of Sri N. Sinha, Assistant Magistrate for disposal on 11th January, 1955 and Sri N. Sinha examined the complainant under Section 200 Cr. P. C., and later on after registration of the case under Section 379 I. P. C., summons were issued to the opposite parties for the 11th of February 1955.
On 18th February 1955 the learned Magistrate heard arguments and he was of the opinion that the accused should be discharged under Section 253 Cr, P. C., on the ground that no Court except the Appellate Court could try the case again. He referred the case to the S.D.M., Dharmanagar for necessary action and the latter on 19th March 1955 rejected the complaint. The complainant brought criminal motion no. 12 of 1955 before the learned Sessions Judge and the latter has made the present reference.
3. I have heard the learned Advocate for the complainant and also the learned Government Advocate. There is no doubt that Sri N. Sinha Magistrate could not act under Section 349 or 380 in referring the case to the Court of the S. D. M, Dharmanagar for necessary action. Section 349 Cr. P. C. provides for cases where the Magistrate cannot pass sentence sufficiently severe and Section 380 Cr. P. C. lays down the procedure in cases where a Magistrate has to submit proceedings to a Sub-divisional Magistrate or a Magistrate of the 1st class when the former is not empowered to act under Section 562 Cr. P. C. There is no other provision in the Code of Criminal Procedure under which Sri N. Sinha could refer the case to the S. D. M. and the latter could take action and reject the complaint as was done by him. The order rejecting the complaint is, therefore, clearly illegal and it deserves to be set aside.
4. The next question which is of considerable importance in this case is whether the order passed by the learned S. D. M. can be deemed to be correct under Section 403 Cr. P. C. The order in question does not amount to an order of acquittal and as Section 403 merely creates a bar against persons once convicted or acquitted for not being tried again for the same offence, this section cannot help the opposite parties in the present case.
5. 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 lastmentioned 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.
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.
6. A perusal of the section clearly shows that mere discharge of an accused cannot be deemed to be his acquittal. It has been argued that as a special remedy has been provided in such cases under Sections 436 and 437 Cr. P. C., the special provision impliedly bars the institution of a fresh prosecution for .the same offence where the order dismissing the complaint or discharging the accused has not been set aside by a competent authority. I think, this argument cannot be deemed to be of any force in view of the explanation to Section 403 Cr. P. C. vide B. Fane-Saunders v. S. Abdul Sattar AIR 1955 NUC (Pak) 5229(A) in which it has been clearly laid down that there is no bar to the entertainment of a second complaint after the first is dismissed, but this jurisdiction has to be exercised judiciously and not capriciously.
It is to be considered whether by allowing the complaint dated 30th December 1954 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 appears from the judgment of the learned Magistrate dated 28th December 1954 that he found from the evidence on the record that bamboos had been removed but as Behari Sinha, Inamulla, Girish doctor and Ratan Ram Malaker who are alleged to have been present at the time of the partition of the plots were not examined, it could not be definitely said that the bamboos had been removed from the complainant's plot.
The learned Advocate for the petitioner urges that the evidence produced by the complainant was substantially believed by the learned Magistrate and it would not prejudice any party if the additional evidence regarding partition is produced at a later stage. I agree with this contention and I am of opinion that there would be no abuse of the process of the Court if the complaint dated 30th December 1954 is allowed to be tried and determined according to law for the witnesses on the point have already been specified and as formerly no evidence had been produced on the point of partition there cannot be any scope of improvement.
7. I, therefore, accept the reference and I set aside the order passed by the S. D, M., Dharmanagar on 19th March 1955 rejecting the complaint dated 30th December 1954 and I sent back the case to the Court of the learned Assistant Magistrate, Dharmanagar for disposal of this case according to law, from the stage at which the complaint was rejected by the S. D. M.