1. This is a reference by the District Magistrate, East Khandesh, inviting us to set aside the proceedings in a second complaint of which the Magistrate took cognizance after he had discharged the same accused in the first complaint by the same complainant on the same facts and in respect of the same alleged offence. The District Magistrate thought that by this action of the Magistrate in taking cognizance of the second complaint, he had arrogated to himself the functions of the District Magistrate or Sessions Judge, and though there was no express prohibition in the Criminal Procedure Code against a Magistrate accepting a second complaint after he had passed an order of discharge the whole intention of the law must be held to be against such a procedure, and that there were no decisions of the Bombay High Court on the point.
2. The learned District Magistrate is mistaken. The defence of autrefois acquit has no application to the case of a discharge, and it has been held by this Court in Queen-Empress v. Bapuda (1887) C.C. 350. that a discharge not operating as an acquittal leaves the matter at large for all purposes of judicial inquiry, and there is jurisdiction still vested in all Magistrates including the one who made the previous inquiry, And while the Magistrate must exercise due judicial discretion, there is nothing in law to prevent him from inquiring again into the case. To the same effect is the decision in In re Mahadev Laxman (1924) 27 Bom. L.R. 352. The same view is taken by the other High Courts; Mir Ahwad Hossein v. Mahomed Askari I.L.R (1902) Cal. 726. Emperor v. Chinna Kaliappa Gounden I.L.R (1905) Mad 126 and Ram Bharos v. Baban I.L.R (1914) All 129.
3. On the facts of this particular case, it appears that in the first complaint the order of discharge was passed merely because the complainant and his pleader were absent at the appointed hour. The second complaint was filed on the following day. The learned Magistrate, therefore, exercised due discretion in proceeding to inquire into the merits after presentation of the second complaint.
4. For these reasons we reject the reference and decline to interfere. The record and proceedings should be returned to the trying Magistrate to proceed in accordance with the law.