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Phonsia Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1935All59; 152Ind.Cas.619
AppellantPhonsia
RespondentEmperor
Excerpt:
- - such an application was clearly against the provision laid down in section 369 criminal p......complaint the magistrate in question summoned the accused and after hearing the evidence of the complainant discharged the accused on 15th june 1933. after that the complainant made an application to the magistrate to review his order of discharge. such an application was clearly against the provision laid down in section 369 criminal p.c., which states that no court, when it has signed its judgment, shall alter on review the same except to correct a clerical error. the magistrate refused to review his judgment on 3rd july 1933. after that the complainant filed another complaint on the same facts in the court of the joint magistrate. it is true that under section 403 explanation, the discharge of the accused is not acquittal for the purpose of that section which would prevent the.....
Judgment:
ORDER

Bennet, J.

1. This is an application for transfer of a criminal case on a complaint which was made under Sections 494 and 498 Penal Code. The applicant is the complaint. On a previous complaint the Magistrate in question summoned the accused and after hearing the evidence of the complainant discharged the accused on 15th June 1933. After that the complainant made an application to the Magistrate to review his order of discharge. Such an application was clearly against the provision laid down in Section 369 Criminal P.C., which states that no Court, when it has signed its judgment, shall alter on review the same except to correct a clerical error. The Magistrate refused to review his judgment on 3rd July 1933. After that the complainant filed another complaint on the same facts in the Court of the Joint Magistrate. It is true that under Section 403 explanation, the discharge of the accused is not acquittal for the purpose of that section which would prevent the accused being again tried for the same offence. But if the present application is granted and the case is transferred to another Magistrate and that Magistrate convicts the accused, the situation would arise that the accused would have been discharged by one Magistrate and without that order of discharge being set aside, the accused would be convicted by another Magistrate on the same charge. I do not think that that is a desirable result. The correct course for the complainant to adopt would have been to make an application under Section 436, Criminal P.C., to the Sessions Judge or the District Magistrate asking for, the order of discharge to be set aside and further enquiry to be made. It is still open to the complainant to adopt that course as apparently there is no limitation for such an application. That being so, I do not consider that the transfer should be granted and I think it is desirable for the complainant to pursue the remedy laid down in Section 436 Criminal P.C., and that he should not be allowed to have his case transferred to another Magistrate until action has been taken under that section and further enquiry has been ordered by the Sessions Judge or the District Magistrate. I do not think that I am called upon to decide what course the complainant should pursue in regard to the second complaint for which he now asks for transfer. The application therefore is refused.


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