Baharul Islam, J.
1. This application under Section 439 of the Code of Criminal Procedure is directed against the order dated 31-12-71 passed by the Sessions Judge, Dibrugarh and Lakhimpur, in Criminal Motion No. 21 (2) of 1971 directing further inquiry into the matter.
2. On an information lodged by the Honorary Secretary of Hindusthani Vidyalaya, Tinsukia, the police registered a case against the petitioner, who was the Headmaster of the aforesaid Vidyalaya under Section 408 of the Penal Code. Police took up investigation and after completion of investigation submitted charge-sheet against the petitioner under Section 408 of the Penal Code. The accused was produced before the Magistrate, who, on perusal of the materials before him, by his order dated 7-4-71, discharged the petitioner under Section 251-A (2) of the Code of Criminal Procedure. The Sessions Judge then was moved under Section 436 of the Code of Criminal Procedure and the learned Judge by his impugned order held that the order of discharge was not proper. He set aside the order and sent back the case to the Magistrate for further enquiry. The petitioner has filed the present application against this order.
3. Shri S. K. Sen, learned Counsel appearing for the petitioner, submits that the impugned order of the learned Sessions Judge is without jurisdiction inasmuch as the order was made 'during trial' and therefore the order of the learned Sessions Judge amounted to an order for re-trial, and in support of his contention he relies on a decision of this Court in the case of Tabarak Ali v. Mantaj Ali (1961) 2 Cri LJ 460 (Assam).
4. The relevant portion of Section 436 of the Code of Criminal Procedure may be quoted:
436. Power to order inquiry.- On examining any record under Section 435 or otherwise...the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrate subordinate to him to make...further inquiry...into the case of any person accused of an offence who has been discharged:. ... ...
The relevant portion of Section 251-A also may be quoted:
(1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished.
(2) 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..
Sub-section (2) of Section 251-A gives the Magistrate, in appropriate cases, power to discharge the accused, and Section 436 gives power to the Sessions Judge in appropriate cases to direct a Magistrate either by himself or by any Magistrate subordinate to him to make further enquiry into the case of any person accused of an offence who has been discharged. It is therefore clear that when a person is discharged by a Magistrate under Sub-section (2) of Section 251-A, the Sessions Judge, under Section 436, may order further inquiry into the case of the accused so discharged.
4. The submission made by Shri Sen is that an order of discharge . under Sub-section (2) of Section 251-A is 'during a trial' and therefore further inquiry within the meaning of Section 436 will only mean 'further trial'. In my opinion the submission of learned Counsel has no substance. Trial begins only after the charge is framed. In other words a trial follows a charge. Shri Sen takes strong reliance on the word 'trial' in Sub-section (1) of Section 251-A. He submits that the moment the accused appears or is produced before the Magistrate under Sub-section (1) of Section 251-A the trial begins, and any order passed thereafter is an order passed 'during trial'. We are therefore called upon to interpret the expression 'at the commencement of the trial'. The dictionary meaning of the word 'commencement' is 'beginning'. So the expression 'at the commencement of the trial' means 'at the beginning of the trial', which, in the context of Section 251-A, means 'at the beginning of the trial'. In my opinion the expression means at the point of starting of the trial, and the trial starts when the charge is framed.
This interpretation is compatible with justice and prevention of possible miscarriage of justice. If the interpretation put by learned Counsel is accepted, there will be grave miscarriage of justice if, in spite of adequate materials for framing a charge or charges against an accused, the Magistrate wrongly discharges him under Section 251-A (2).
5. A single Judge of the Mysore High Court has taken the same view, though for different reasons in AIR 1965 Mys 35 : (1965) (1) Cri LJ 187 in which it has been held:
A District Magistrate acting under Section 436, Criminal P. C. has got power to direct a further enquiry into the case of a person accused of an offence who has been discharged under Sub-section (2) of Section 251-A...According to the scheme of Section 251-A, it appears that the provisions of Sub-sections (1) and (2) are in the nature of an inquiry before the trial. If the Magistrate after due compliance with the provisions of Sub-section (2) discharges the accused, it cannot be said that the discharge has the effect of an acquittal. The trial really commences against the accused under Sub-section (3) of Section 251-A and all proceedings preceding the framing of the charge under Sub-section (3) are in the nature of an inquiry. The words appearing in Sub-section (1), viz., 'at the commencement of the trial' must be understood or interpreted with reference to the context in which they appear, and when so interpreted, they only mean that the proceeding preceding the order of discharge is not a trial but is only in the nature of an enquiry. The order of discharge of an accused under Sub-section (2) is merely the result of an inquiry. The trial does not commence when the accused is brought before the Magistrate under Sub-section (1):. ... ...
6. Let us now consider the decision of this Court reported in 1961 (2) Cri LJ 460 (Assam)(supra) on which reliance has been placed by learned Counsel for the petitioner. In that case there was a number of accused persons who had been charge-sheeted; but the learned Magistrate after perusal of the papers submitted before him framed charge under Section 324 of the Penal Code against one of the accused persons and discharged the rest.
That case, in fact, has not decided whether an order of discharge under Sub-section (2) of Section 251-A is 'during trial'. What the Court held is:
In cases where the trial is going on and the trial has commenced, a further inquiry has no meaning, and, therefore, in case where the trial is going on, there is no question of directing any further inquiry. If the Sessions Judge thinks that the order refusing to frame charge is illegal or not justified on the materials on the record, then the proper order to be passed is to act under Section 435, Criminal Procedure Code and refer the case to the High Court for decision. But, the Sessions Judge in that view of the matter cannot act under Section 436, Criminal procedure Code. If the Sessions Judge acts under Section 436, he can only direct the inquiry if there are circumstances which justify a direction to hold further inquiry. In cases where the trial is going on, the question of directing further inquiry may not arise and in that view, of the matter it may be legitimately argued that the cases where the trial has commenced and is pending, the Sessions Judge cannot exercise his jurisdiction under Section 436, Criminal Procedure Code....
The facts of the instant case are distinguishable from those in the case reported in 1961 (2) Cri LJ 460 (Assam). In the former, no charge had been framed and as such trial did not begin, while in the latter charge had been framed and the trial had continued. The decision therefore is not helpful to the petitioner.
7. Shri Sen led me through the Annexure 'A' to the petition. Annexure 'A' is a copy of the audit report by an auditor to the Honorary Secretary of the School furnished under Section 173 of the Code of Criminal Procedure. After going through the contents of the document, I am of the opinion that there are materials which presumably were not considered by the learned Magistrate. Besides, there is a large number of other documents seized by the police under a seizure list dated 1-6-70, It does not appear from the order of the learned Magistrate that he considered any of those documents. What he considered was only the audit report.
Sub-section (2) of Section 251-A enjoins that the Magistrate is to consider all the documents referred to in Section 173 and if, upon the consideration of them, he finds the charge groundless, he can discharge the accused. It does not appear from his order that he carefully considered the audit report or that he at all considered the documents seized vide seizure list dated 1-6-70.
8. I am satisfied that the impugned order passed by the learned Sessions Judge is not only within his jurisdiction but is also justified.
In the result this application has no merit and is dismissed. The Rule is discharged.