C.S. Nayudu, J.
1. This is a reference by the Additional District Magistrate Kamrup, Gauhati, calling into question the procedure followed by the Sub-divisional Magistrate, Barpeta, in this case.
2. The facts may be briefly stated. There was a chargesheet filed against the accused persons, 9 in number, in the Court of the Sub-divisional Magistrate, Barpeta. The Magistrate apparently called for a report from the Police and on receipt of the final report, ordered the discharge of the accused persons on 26.6.61. Subsequently on 22.8.61 without any frech chargesheet or complaint, the learned Sub-divisional Magistrate decided to proceed afresh against the accused persons, and ordered summonses to be issued to them, fixing a later date for evidence. It is this procedure that has been followed by the Sub-divisional Magistrate that is questioned in this reference.
3. Under Section 251-A(2) of the Code of Criminal Procedure, if, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after (giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. Assuming for the purpose of this case, that the discharge order has been validly passed, the Magistrate becomes functus officio so far as the case is concerned, and unless there was a fresh complaint or a fresh charge-sheet, no action in the matter could have been taken by the Sub-divisional Magistrate. As the order passed is an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate. But, in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the accused had not been discharged, would amount in law to a review of the judgment of the Magistrate, which is not permissible having regard to Section 369 of the Code of Criminal Procedure, which is as follows:
Save as otherwise provided by this Code of by any other law for the time being in force or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court, no Court, when it has signed its judgment, shall alter or review, the same, except to correct a clerical error.
That a Criminal Court has no jurisdiction to review its own judgment has also been laid down by several judgments of the High Courts as well as of the Supreme Court. The order of the learned Sub-divisional Magistrate suo motu reviving the case and proceeding with the trial of the same on its merits is clearly devoid of jurisdiction and illegal. The proper course that should have been followed by the learned Magistrate, if he had felt that ha had made a mistake, or had acted erroneously, was to have made a reference to the Sessions Judge or the District Magistrate having jurisdiction, for a revision of the discharge order. In fact, such a petition usually is filed by the complainant who is aggrieved by the order of discharge. In the absence of any such revision petition having been filed and in the absence of the authority exercising the powers of revision namely the Sessions Judge or the District Magistrate, as the case may be, reviving the order of the Sub-divisional Magistrate and ordering a fresh enquiry, any attempt by way of a fresh enquiry into the case is completely wrong and devoid of jurisdiction. Hence, the order of the learned Sub-divisional Magistrate dated 22.8.61 ordering fresh enquiry into the matter is clearly unsustainable in law and is accordingly quashed.
4. In this connection, it is necessary to point out that a Magistrate can discharge an accused before him, at the stage at which the. learned Sub-divisional Magistrate did in this case, in the first instance only when he was satisfied on a consideration of all the materials placed before him, and after complying with the provision of Section 251-A(2) and he came to the conclusion that the charge against the accused was groundless, and it is obviously imperative on the part of the Magistrate to have made record of his opinion in this matter by noting down in the order that he complied with Section 251-A(2) and on such compliance he found that the charge against the accused was groundless. The order of the learned Sub-divisional Magistrate dated 22.8.61 is as vague as ever and such vagueness should be avoided in making judicial orders.
The reference is accordingly accepted as indicated above.