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Emperor Vs. Nabi Fakira - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 8 of 1907
Judge
Reported in(1907)9BOMLR250
AppellantEmperor
RespondentNabi Fakira
Excerpt:
criminalproccdure code (act v of 1898), sections 253, 367-order of discharge-magistrate-judgment.; the legislature does not vender the writing of 'reasons' necessary where an accused person is diseharged after the trying magistrate has heard all the evidence for the prosecution. but it is desirable that the magistrate should record his reasons for discharge, though it is not compulsory. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe ..........that the sub-divisional magistrate's view is correct. the direction in clause (2) of section 253, criminal procedure code and its absence in clause (1) shows, on the principle of expressio unius est exclusio alterius, that the legislature does not render the writing of 'reasons' necessary where an accused person is discharged after the trying magistrate has heard all the evidence for the prosecution. the provisions of section 367, criminal procedure code, substantially support that conclusion. it is on the termination of a trial that judgment has to be pronounced. a judgment is a decision which decides a case finally so far as the court trying the case is concerned, but an order of discharge is not a final order because there is nothing to prevent a magistrate, after he has once.....
Judgment:

1. We are of opinion that the Sub-Divisional Magistrate's view is correct. The direction in Clause (2) of Section 253, Criminal Procedure Code and its absence in Clause (1) shows, on the principle of expressio unius est exclusio alterius, that the Legislature does not render the writing of 'reasons' necessary where an accused person is discharged after the trying Magistrate has heard all the evidence for the prosecution. The provisions of Section 367, Criminal Procedure Code, substantially support that conclusion. It is on the termination of a trial that judgment has to be pronounced. A judgment is a decision which decides a case finally so far as the Court trying the case is concerned, but an order of discharge is not a final order because there is nothing to prevent a Magistrate, after he has once discharged an accused person under Section 253, from inquiring again into the case against him. A discharge, not operating as an acquittal, leaves the matter at large for all purposes of judicial inquiry. There is jurisdiction still vested in all Magistrates including the one who made the previous inquiry just as before: see Queen Empress v. Bapuda (1887) Unr. Cr. C. 350. See also Mir Ahwad Hossein v. Mahomed Ashari ILR (1902) 29 Cal. 726, where an order of discharge has been held to be not a judgment. At the same time it is desirable that a Magistrate should record his reasons for discharge, though it is not compulsory, see Ekcowri Mukerji v. Emperor ILR (1904) Cal. 178.


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