1. The facts from which this application has arisen are briefly as follows : Two persons filed a criminal complaint under Sections 403, 406 and 411, Penal Code, against the present applicants, Raza Husain and Ibn Hasan, who are father and son. The Sub-divisional Magistrate in whose Court the complaint was filed drew up a charge against both the applicants, but he was subsequently transferred without completing the trial of the case, and his successor transferred the case to a Bench of Magistrates having powers of the first class. The Bench recorded some further evidence for the prosecution and passed an order on 17-19 April 1934 which purported to be an order under Section 253 Criminal P.C. The complainants made an application in revision to the Sessions Judge on the ground that the accused should, on the evidence, not have been discharged, and the Sessions Judge after discussing the evidence in some detail passed an order in which he held that the dismissal of the complainants case by the lower Court was quite unjustifiable as the evidence which had been produced by the complainants 'did make out a prima facie case against the accused.' He therefore set aside the order discharging the accused and sent back the case to the District Magistrate with a direction that a further enquiry should be made by an other Magistrate.
2. The principal ground on which the application has been argued is that the order of the Bench of Magistrates was not an order of discharge, in spite of the reference to Section 253, but an order of acquittal. The whole of the evidence produced on behalf of the prosecution had been recorded either by the original Magistrate who took up the case, namely the Sub-divisional Magistrate, or by the Bench to whom, the case was subsequently transferred the statements of the accused had been recorded. The whole of the evidence was discussed in the Magistrates order of 17-19 April 1934 and the conclusion to which they came was that the case between the parties was a matter of accounts, that it was of a civil nature and that the accused must be 'acquitted' (sic) under Section 253, Criminal P.C. In referring to Section 253, the Bench neglected to take into account the fact that a charge had been drawn up against the accused. They were considering, not whether the evidence justified the framing' of a charge but whether it justified the conviction or the acquittal of the accused. The fact that no evidence had been brought on behalf of the accused did not stand in the way of their recording an order of acquittal. If any authority is necessary for this proposition, it is to be found in the case of Sayid Khan v. Emperor (1904) 1 A.L.J. 415, Section 258, Criminal P.C. provides that:
If in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.
3. And if the Magistrate by inadvertence refers to Section 253 instead of Section 258 of the Code, the order does not become any the less an order of acquittal because of that inadvertence, if the whole of the procedure shows that the order must be regarded as one of acquittal and not of discharge. Chap. 21 sets forth the procedure to be followed in warrant cases, and it shows that the accused shall be discharged under Section 253 if, upon taking all the evidence under Section 252 and examining the accused, the Magistrate finds that no case has been made out which would warrant his conviction. If however the evidence does appear to be sufficient to warrant a conviction and is un-rebutted, a charge is to be framed under Section 254 and thereafter the accused is put on his trial. When a charge has once been framed under Section 254 it must be followed either by an acquittal or a conviction. It. follows therefore that the Magistrate in this case proceeded on the basis of the charge already drawn and acquitted the present applicants and did not, as is urged on behalf of the, opposite party merely discharge them.
4. It has been very forcibly argued by Mr. Pathak that in the present case what actually happened was that after the charge had been drawn a denovo trial was ordered and the Bench Magistrates were proceeding under Section 350 Criminal P.C. It should be mentioned that the case has been referred back to the Sessions Judge in order to ascertain whether any definite orders quashing the charge or ordering a denovo trial were passed, and it appears that there were no such definite orders. The Sessions Judge appears to have Inferred that there was in effect a quashing of the charge and a d$ novo trial. If so, Mr. Pathak argues, the Bench Magistrates could under Section 350 'resummon the witnesses and recommence the enquiry or trial' and the effect of this would be to 'wipe out' the charge. This matter has been discussed in several cases to which I have been referred, namely, Abdul Hakim v. Abdul Aziz 1933 Pesh 78, Daroga Choudhury v. Emperor 1919 Pat 578, Jago Singh v. Emperor 1919 Pat 311, Sahib Din v. Emperor 1919 Lah 49; and in these the view has been expressed that the effect of ordering a de novo trial is that the whole of the proceeding from the very beginning must be gone through again, and if a charge has been framed, it is wiped out.
5. A different view however has been taken by this Court in Queen Empress v. Chotu (1886) 9 All 52. The Bench was not then discussing the effect of Section 350, Criminal P.C., but it clearly laid down the principle that when once the charge has been framed in a warrant case and a plea has been taken, the enquiry is turned into a trial which can only be concluded by an acquittal or conviction. In Sri Ramulu v. Nalam Krishna Row 1915 Mad. 23, a Bench of the Madras High Court held that where a Magistrate framed charges against an accused person and was succeeded by another Magistrate who recommenced the case under Section 350, Criminal P.C. and upon re-examining the complainant discharged the accused under Section 253, the accused was acquitted and that no further enquiry could be held into the case. The facts are very similar to the case before me now and relying on the authority of the Full Bench of this Court and of the Madras High Court, I must hold that even if a de novo trial was ordered and the Bench proceeded under Section 350, Criminal P.C., they could not, in doing so, ignore the charge which had been drawn by their predecessor, and that the order which they recorded was indeed as it purported to be an order of acquittal and not of discharge. This being so the Sessions Judges had no jurisdiction to order a further enquiry, and I therefore allow the application, set aside the order of the Sessions Judge and direct that the order of the Bench Magistrate must be regarded as one of acquittal and must stand.