1. This is an application on behalf of one Nazir Ahmad in criminal revision asking that an order of the District Magistrate for further enquiry into a charge of riot under Section 147, Penal Code, should be set aside. The case has been argued by Miss Clarke with considerable ability and the points have been clearly laid before me. The facts are that the Magistrate heard all the evidence for the prosecution and passed an order of discharge of Nazir Ahmad on 1st April 1933 discharging this accused under Section 253, Criminal P.C., no charge sheet having been framed. There was a trial of other persons under Section 147, Penal Code, before the Sessions Judge and in his judgment the Sessions Judge stated:
Considering the prosecution evidence, I am astonished to find that Nazir, the ringleader of the party, has not been sent up for trial with these accused. In fact he was the originator of this riot and leader of this party and should have been challaned. The District Magistrate will please see the evidence and take necessary steps if he considers proper.
2. Notice was not issued apparently at first to Nazir Ahmad but on the directions of this Court notice was eventually issued, and the District Magistrate has considered the case against him and has passed an order on 23rd December 1933 directing further enquiry by a different Magistrate Into the charge under Section 147, Penal Code. In this order the District Magistrate states:
Nazir should have been charged by the Magistrate. His Order of discharge is perverse and against the weight of evidence.
3. Now, learned Counsel has not asked that I should consider the question as to whether the order of the Magistrate of discharge was perverse or not and indeed it would be extremely embarrassing if I considered that question because an order on the merits by this Court at this stage would prejudice any further proceedings and be embarrassing if there were further proceedings and if there was eventually an appeal to this Court. The points which are urged in criminal revision are points of law only. The first point is that the accused was discharged in circumstances which amounted to an acquittal and therefore the order under Section 436, Criminal P.C., was illegal. Now the Code draws a distinction between an order of discharge and an order of acquittal. This distinction is noted in the explanation to Section 403 where it is stated that the discharge of the accused is not an acquittal for the purpose of that section. That section is the section which states that an acquittal is a bar to any further trial for the same offence. The Code therefore draws this distinction between a discharge and an acquittal. Learned Counsel argued that a difference was to be drawn between a discharge where all the evidence had been heard for the prosecution and a discharge where it had not all been heard. But as far as Section 403, explanation is concerned no such distinction is drawn by the Coda. And in Section 436 there is again no distinction of these nature drawn and the power is given to the Sessions Judge or the District Magistrate to decide whether further enquiry should be made into the case of any person who has been discharged. The next ground of criminal revision is that an order for further enquiry based solely on the ground that the Magistrate has misapprehended the evidence is not contemplated by Section 436, Criminal P.C. On this argument there are two observations to make: firstly, Section 436, Criminal P.C., does not limit at all the grounds on which further enquiry is to be ordered; and secondly in the present case the ground) that the Magistrate misapprehended the evidence is not the ground given by the District Magistrate. The ground given by the Magistrate is that the order of discharge is perverse and is against the' weight of evidence. The third ground is that no further evidence is forthcoming and that therefore an order for further enquiry is bad in law.
4. Again this is an argument which is not supported by any provision in Section 436, Criminal P.C. Learned Counsel then relied on certain rulings which are ruling a of Single Judges. The first ruling mentioned was Sundar Singh v. Mt. Bhyan 1921 Lah 283,. In that it was stated that the District Magistrate had directed that the accused should be charged and proceeded against according to law, and it was correctly pointed out that what the District Magistrate might have ordered was farther enquiry. The ruling proceeded to state:
The order itself also was entirely unjustified as after a full trial the accused persons were discharged and that discharge is for all practical purposes as good as an acquittal. It is not for mo to hold, nor was it for the District Magistrate to hold, whether the accused persons were guilty or not. He had merely to see whether a proper trial had been held and whether there were sufficient reasons for the discharge.
5. I cannot agree with the description of a trial which has terminated with the discharge before a charge sheet as a full trial. In the particular case in the ruling the District Magistrate had stated that he considered that a prima facie case had been made out against the accused. It appears to me that that would have been a sufficient ground for the District Magistrate to order further enquiry and that that function has been given to the District Magistrate by Section 436, Criminal P.C. The next ruling to which reference was made is Mohammad Hussain v. Mt. Nanhi 1930 All 257. In this a distinction is drawn between an order of the District Magistrate for retrial of a case and an order for further enquiry. I do not see mach difference in this distinction. The learned Single Judge of this Court considered the evidence on the merits and considered that on that evidence the accused was entitled to be discharged. Learned Counsel has stated that it is not desired that I should consider the evidence on the merits in this case and I am of the same opinion. But the learned Single Judge agreed with the doctrine which has been laid down by this Court on many an occasion that an order of discharge should only be set aside very sparingly and only when it can be said either to be perverse or prima facie incorrect when there is a suggestion that any further evidence may be forthcoming. In the present ease there is the finding of it learned District Magistrate that the judgment of the Magistrate was perverse. The case therefore would come within the; dictum in question. The last case to which reference was made was Alam v. Emperor 1927 All 804. In that case the dictum in question was again quoted from Bindershri Dube v. Emperor 1920 All 266. As stated already the present case comes within the dictum as there is a finding that the judgment was perverse. For these reasons I consider that no; ground has been shown to set aside the-order of the District Magistrate and accordingly I dismiss this criminal revision.