B.K. Patra, J.
1. The opposite party Prakash Chandra Agarwalla holds a licence under the Orissa Foodgrains Dealers' Licensing Order, 1964 (hereinafter referred to as the Order) and was dealing in wheat and wheat-products. The Inspector, Vigilance, Titlagarh inspected his shop on 28-8-1965 and found some irregularities in maintenance of his account books as the books did not show the correct stock of wheat held by him by that day. The opposite party also did not submit fortnightly returns as required under Clause (4) of the Licence. On the aforesaid allegations, the Inspector, Vigilance submitted a prosecution report against him under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) for contravening the conditions of the licence issued to him. In course of search of the shop of opposite party about 17 quintals and 68 kilograms of wheat were found and seized. The opposite party appeared in Court and filed an application that he is entitled to be supplied with necessary documents under Section 173, Criminal P. C.
This prayer was rejected by the learned Magistrate being of the view that there was no investigation of the case by the Vigilance Inspector and prosecution report was submitted as a Non-F.I.R. case. Another petition filed by the opposite party for release of the wheat to him was also dismissed. As against the two orders passed by the Magistrate, the Sessions Judge was moved in revision and he made a reference to this Court recommending that the two orders might be quashed. In criminal reference No. 6 of 1966, Das, J. ordered that the seized stock of wheat, should be released and sold through the opposite party or some other control dealers and the sale proceeds be deposited in Court until disposal of the case against the opposite party.
The question as to whether papers should be supplied to the opposite party under Section 173, Criminal P. C. was not specifically dealt with in the judgment, The order, however, was the reference was accepted. On receipt of this order, the learned Magistrate directed the prosecution to supply necessary papers to the opposite party. The prosecution appears to have taken the stand that there was nosuch direction in the order passed by the High Court and that an opportunity might be afforded for hearing of this question and 9-1-1967 was fixed for hearing the objections raised by the prosecution. On 9-1-1967, the learned Magistrate discharged the opposite party under Section 251-A, (2), Criminal P. C, on the ground that despite the orders of the High Court, papers under Section 173, Criminal P. C. had not been, supplied to the accused.
On 16-1-1967, the Inspector, Vigilance filed the necessary papers under Section 173, Criminal P. C. and also submitted an application stating that he could not do so on the last date of hearing, namely 9-1-1967, as he was absent and prayed that the order dated 9-1-1967 might be recalled. The learned Magistrate allowed the application and recalled the order passed on 9-1-1967. On 4-3-1967, the opposite party filed an application under Section 540-A, Criminal P, C, stating that the order dated 16-1-1967 passed by the learned Magistrate recalling the order dated 9-1-1967 is without jurisdiction, that this being a summons case, the order of discharge recorded on 9-1-1967 amounts to an order of acquittal and that therefore, the learned Magistrate had no power either to recall it or to set it aside.
By order dated 26-4-1967, the learned Magistrate accepted the aforesaid contention of the opposite party and rejected the prayer of the prosecution to restore the case to file. It is against this order dated 26-4-1967 that the present revision application has been filed.
2. Mr. Ramdas appearing for the State puts forth the following contentions in support of the application:--
(1) The opposite party has contravened an order made with reference to Clause (d) of Sub-section (2) of Section 3 of the Act, the penalty prescribed for which under Section 7(1)(a)(ii) of the Act is imprisonment for a term which may extend to five years and consequently this is a warrant case and the order dated 9-1-1967 passed by the Magistrate is therefore, an order of discharge and not of acquittal.
(2) As against an order of discharge, a superior Court may no doubt be moved to set it aside. But it is also open to the prosecution to submit a fresh complaint against the accused. In such circumstances, there can be no reason why the Magistrate himself cannot exercise his Inherent jurisdiction to review his own order and rehear the case. In this view, the order passed by the Magistrate on 16-1-1967 is legal.
Mr. R. C. Ram, appearing for the opposite party submits--
(1) that the prosecution of the opposite party is for contravention of the order made with reference to Clause (i) of Subsection (2) of Section 3 of the Act, thepenalty for which is imprisonment for a term which extends to one year and as such it is a summons case, and an order of discharge passed against an accused to such a case amounts to an order of acquittal which having become final cannot be set aside by the Magistrate by his subsequent order dated 16-1-1967, and
(2) that assuming that it is a warrant case and the order passed on 9-1-1967 is only an order of discharge, the only remedy available to the prosecution is to approach the superior Court for setting aside the order of discharge and the Magistrate has no inherent jurisdiction to set aside that order.
These contentions require careful consideration.
3. To appreciate the contentions of the parties, it is necessary to quote the relevant provisions of Sections 3 and 7 of the Act,
'Section 3-- Power to control production, supply, distribution, etc., of essential commodities:
(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--
X X X X X(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption, of any essential commodity;
X X X X X(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters?
(i) for requiring persons engaged in the production, supply or distribution of, or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order;
X X X X X' '7. Penalties:-- (I) If any person contravenes, whether knowingly, intentionally or otherwise, any order made under Section 3--
(a) he shall be punishable--
(i) in the case of an order made with reference to Clause (h) or Clause (i) of Sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also he liable (sic)
(ii) in the case of any other order, with Imprisonment for a term which may extend to five years and shall also be liable to fine;
Provided that In the case of a first offence, if the Court is of opinion that a sentence of fine only will meet the ends of justice, it may, for reasons to be recorded, refrain from imposing a sentence of imprisonment and in the case of a second or subsequent offence, the Court shall impose a sentence of imprisonment and such imprisonment shall not be less than one month; and
X X X X X' Neither Clause (h) nor Clause (i) of Section 3 of the Act contemplates prescription of any licence. Such prescription is contained only in Clause (d). In exercise of the powers conferred by Section 3 of the Act and with prior concurrence of the Central Government, the State Government had made the Order. Paragraph 3 of the Order requires that no person shall carry on business as a dealer except under and Sn accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. Para. 4 prescribes that every application for a licence or renewal thereof shall be made to the Licensing Authority in Form A, and that every licence issued, reissued or renewed under this order shall be in Form B. The form of the licence is set out in Form B and Clauses 3 and 4 thereof may be quoted.
(See Clause 4 (2))
x x x x x3. (i) The licensee shall except when specially exempted by the State Government or by the licensing authority in this behalf, maintain a register of daily accounts for each of the foodgrains mentioned in paragraph 1, showing correctly:
(a) the opening stock on each day;
(b) the quantities received on each day showing the place from where and the source from which received;
(c) the Quantities delivered or otherwise removed on each day showing the places of destination; and
(d) the closing stock on each day.
(ii) The licensee shall complete his accounts for each day on the day to which they relate, unless prevented by reasonable cause the burden of proving which, shall be upon him.
(iii) A licensee who is a producer himself shall separately show the stocks of his own produce in the daily accounts, if such stocks are stored in his business premises.
4. The licensee shall, except when specially exempted by the State Government or by an officer authorised by the State Government in this behalf submit to the licensing authority receipts and deliveries of each of the foodgrains everyfortnight (1st to 15th and 16th to end of one month), so as to reach him within..... days after the close of the fortnight.'
It is thus manifest that the licence, the conditions whereof have been alleged to have been violated by the opposite party is one prescribed in the Order which has been made in pursuance of Section 3(2)(d) of the Act. I am unable to accept Mr. Ram's contention that the Order is one made in pursuance of the power vested in Government under Section 3(2)(h) or 3(2)(i) of the Act. If the licensing Order is one made with reference to Clause (d), of Sub-section (2) of Section 3 of the Act, a contravention thereof is punishable under Section 7(1)(a)(i) of the Act which prescribes a penalty of imprisonment which may extend to five years and also fine.
Since 'warrant case' as defined in Section 4(1) (w), Cr. P. C. means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year, a case which falls under Section 7(1)(a)(ii) of the Act is a warrant case. In fact, the learned Magistrate dealt with the case as such. The order passed by the Magistrate on 9-1-1967 must therefore be construed as an order of discharge passed in a warrant case by reason of the fact that the prosecution was absent in Court on that day and he failed to file in Court the papers referred to in Section 173, Cr. P. C.
4. Even assuming that Mr. Ram is correct in his submission that this is a summons case, still the order passed by the Magistrate on 9-1-67 cannot be said to operate as an order of acquittal. The procedure for the trial of a summons case is prescribed in Chapter XX of the Code of Criminal Procedure. There are only two sections in the Chapter, namely. Sections 247 and 249 which deal with consequences that would ensue where the complainant fails to appear In Court. It is clear from a reading of the two sections that Section 247 applies to a case where summons has been issued on complainant and on the date for appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear and it provides that in such an event the Court may acquit the accused.
Section 249. on the other hand, applies to a case instituted otherwise than upon a complaint in which case, a Magistrate, 1st class, may for reasons to be recorded by him, stop proceedings at any stage without pronouncing a judgment either of acquittal or conviction and thereupon may release the accused. It is now well settled that where a report is submitted by a Police Officer in the capacity of his being an officer of the Police, such report cannot be considered anything other thana Police report though it may pertain to a non-cognizable offence. Such police reports cannot be regarded as complaints within the meaning of Section 4(1) (h), Cr. P. C. and to a case registered on such a police report, the provisions of Section 247 are not attracted and it is not competent to a Magistrate to dismiss the case and acquit the accused merely because the prosecuting officer makes default in his appearance. See R.N. Ghosh v. The State, AIR 1956. Cal 247; State of Rajasthan v. Mahmood Ghasi Musalman, AIR 1962 Rai 1 and State of Madhya Pradesh v. Abdul Kadir Khan, AIR 1963 Madh Pra 125.
This being the position in law. the order passed by the learned Magistrate on 9-1-1967 cannot be treated as one of acquittal passed under Section 247, Cr. P. C. but the order must be deemed to be one passed under Section 249, Cr. P. C. The Magistrate who makes an order staying proceedings under Section 249, Cr. P. C. undoubtedly possesses sufficient powers to remove the order of stay and proceed further. It can never be argued that an order stopping the proceedings under Section 249, Cr. P. C. can ever operate as an acquittal and in this view it cannot be said that the Magistrate purporting to act under Section 249 of the Code has no power to revive the proceedings.
5. If Mr. Ram's contention that Is a summons case is accepted, it must follow that the order passed by the learned Magistrate on 9-1-67 would only amount to an order passed under Section 249 of the Code stopping further proceedings and the one passed by him on 16-1-1967 is an order reviving the proceedings which he was perfectly competent to do and consequently the impugned order passed by him on 26-4-1967 would not be legal and has to be set aside.
6. In view however of my finding that the present case is a warrant case, the order passed by the learned Magistrate on 9-1-67 is one of discharge, the question arises whether the subsequent order passed by him on 16-1-1967 recalling the order of discharge is valid. It is argued on behalf of the opposite party that when the Magistrate passed the order of discharge he became functus officio and that therefore he had no power to rehear the case, A reference in this connection was made to Section 369, Cr. P. C. which provides that no Court, when it has signed its judgment, shall alter or review the same, except a clerical error, and it is contended that the order of discharge is a judgment and therefore the Magistrate could not revive the proceedings of his own accord because it would tantamount to reviving his own order which is prohibited under Section 369, Cr. P. C.
I am unable to accept this contention. An examination of the various provisions of the Code will show that every order passed by a Magistrate under the Code is not a judgment within the meaning of Section 369, Cr. P. C. In order to constitute a 'judgment', there must be an investigation of the merits of the case on evidence and after hearing the arguments. Where, however, the order is passed summarily without consideration of the entire evidence, as in the case of the order of discharge passed in this case, it will not obviously amount to a judgment. In Dwarakanath Mondul v. Beni Madhab, (1901) ILR 28 Cal 652 (FB), a Presidency Magistrate in Calcutta dismissed the complaint as the complainant was absent. Subsequently on the application of the complainant, he revived the case and issued a summons. The accused applied to the High Court to have the order of revival set aside.
The case first came up for hearing before a Division Bench. In view of the conflict of auth'ority on the question of competence of a Magistrate, to revive a warrant case hi which he had made an order of discharge, the matter was referred to a Full Bench of seven Judges. The question referred to the Full Bench was :
'Whether a Presidency Magistrate is competent to revive a warrant case, triable under Chapter XXI of the Code of Criminal Procedure, in which he had discharged the accused person.'
Six out of the seven Judges who constituted the Bench answered the question in the affirmative, Ghose, J., who delivered a dissenting judgment, was not prepared to go so far as the other judges and held that every order of discharge could be reviewed by the Magistrate who had passed it. In his opinion, a Magistrate is competent to review an order of discharge, if it is passed without investigation into the merits of the complaint. This Full Bench decision was followed by another Full Bench of the Calcutta High Court in Mir Ahwad Hossein v. Mohammad Askari, ILR 29 Cal 726 (FB).
That was a case in respect of a complaint filed before a Magistrate in the mofussil and the question referred to the Full Bench was:
'Whether a Magistrate in a warrant case having passed an order of discharge is competent to take fresh proceedings and issue process against the accused in respect of the same offence, unless an order for further enquiry shall have been passed under Section 437, Criminal Procedure Code, having the effect of setting aside such order of discharge.'
Four out of the five Judges who constituted the Full Bench answered this question in the affirmative. Ghose, J., who dissented from the, majority of the Judges, answered the general questionreferred to the Full Bench in the negative. But in doing so, he referred to the observations made by him in (1901) ILR 28 Cal 652 (FB) and stated:
'I feel, however, bound to say, at the same time, that the order of discharge made by the Magistrate in the present case does not amount to a judgment within the meaning of Section 369 or Section 367, Criminal Procedure Code. There was no judicial investigation by the Magistrate of the merits of the complaint, and therefore, as explained in my judgment in the case of (1901) ILR 28 Cal 652 (FB), the order of discharge would be no bar to the revival of the same complaint.'
These decisions of the Calcutta High Court were approved and followed by a Full Bench of the Madras High Court in Emperor v. Chinna Kaliappa Goundan, (1903) ILR 29 Mad 126 in which it was held that the dismissal of a complaint under Section 203, Criminal Procedure Code does not operate as a bar to the rehearing of the complaint by the same Magistrate, even when such an order of discharge has not been set aside by a competent authority. It may be stated here that the majority of Judges who decided (1901) ILR 28 Cal 652 (FB) were of opinion that the judgment referred to in Sections 367 and 369, Cr. P. C. is only a judgment of conviction or acquittal and this is apparent from what Princep, J. observed at page 660:--
'But it has been argued that an order dismissing a complaint or discharging an accused person in a judgment within the terms of Chapter XXVI, Criminal Procedure Code, and that by reason of Section 364 the Court, which passed the judgment, is unable to alter or review it. Now, here I would state that in my opinion such an order is not a judgment within the terms of Chapter XXVI. Section 367 explains what constitutes a judgment and it clearly indicates to my mind that a judgment within that Chapter is only a judgment of acquittal or of conviction. In the case of an order of discharge, or in the case of an order dismissing a complaint, it is expressly required by the law that the Magistrate shall state his reasons, and I therefore take it that, if it had not been so required, it would have been unnecessary for a Magistrate to state any reasons for his order. Consequently in this point of view, the order would not constitute a judgment. And it seems to me, also, that the expression 'judgment' itself indicates some final determination of the case which would end it once for all, such as an order of conviction or acquittal.'
In Surendra Singh v State of Uttar Pra-desh, AIR 1954 SC 194, their Lordships of the Supreme Court after referring to Section 369, Cr. P. C. observed:--
'In our opinion, a judgment within the meaning of this section is the final decision of the Court intimated to the parties and to the world at large by formal 'pronouncement' or 'delivery' in open court. It is a judicial act which must be performed in a judicial way.'
In order to constitute a judgment, therefore, the decision of the Criminal Court must be final. , The order of discharge cannot be regarded as the final pronouncement of the Magistrate, because, as laid down by authorities, a fresh complaint may be made on the same facts, notwithstanding the order of discharge. A final judgment in a criminal proceeding must necessarily be a judgment of either acquittal or conviction, because till then there is no final order, and the defence of autrefois acquit has no application. Section 403 of the Code provides that a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been under Section 236, or for which he might have been convicted under Section 237.
The Explanation to that section states that the dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section. Under this section, therefore, a judgment which bars a second trial must be the final order in a trial terminating either in the conviction or acquittal of the accused. It is therefore clear from what has been stated above that unless the order is final it is not a judgment in the true sense of the term, and it is plain that the order of discharge is not a final order, since accused may be prosecuted subsequently on the same facts and for the same offence, and therefore, clearly enough the order of discharge is not a judgment and does not come within the mischief of Section 369, Cr. P. C.
It is therefore possible to argue that as a Magistrate has jurisdiction to take cognizance of the same offence again, when a fresh complaint is brought on the same facts, he is not deprived of his jurisdiction when, instead of filing a new complaint, the complainant makes an application to him to revive the original complaint and that the Magistrate is competent to rehear the case by reviving the original complaint. Orders of discharge can however be divided into two categories, namely, cases in which the order of discharge is passed after appreciationof the evidence with a view to determine the guilt or innocence of the accused and those in which the proceedings are terminated merely for some technical reason, such as the absence of the complainant The present case is one which falls in the latter category.
This is not a case where the learned Magistrate has applied his mind to the allegations made against the accused and had found that there is no prima facie case against him. He discharged the accused merely because the prosecuting officer was not present in Court and did not supply to the accused the documents referred to in Section 173, Cr. P. C. An order of discharge passed in such circumstances is not a decision given on merits and cannot be called a judgment. Consequently, the Magistrate is not debarred from reviewing it, setting it aside and reviving the old complaint. This view receives support from a decision of the Bombay High Court in In Re Wasudeo Narayan Phadnis, AIR 1950 Bom 10. My attention was drawn to a Bench decision of our Court in Krushna Mohan v. Sudhakar Das, AIR 1953 Orissa 281.
That was a case under Section 145, Cr. P. C. and their Lordships held that a Magistrate cannot invoke his inherent jurisdiction to revive his orders under Section 145 (6) Cr. P. C. because Sub-section (6) of Section 145 in express terms confers finality on that order. Their Lordships, however, added that where, however, an order under Section 145(6), Cr. P. C. is itself a nullity due to the failure to serve the required preliminary notices under Sub-section (1) of Section 145 on all the parties, the Magistrate may invoke his inherent powers and ignore the same. That case is, therefore clearly distinguishable,
7. It is finally argued that where an accused is discharged by a Magistrate, the Code provides a remedy and enables the prosecution to approach superior Court to set aside the order of discharge and that when where there is such specific provision in the Code, it was not open to the Magistrate at a later stage to review his own order and revive the proceedings. In support of this contention, reliance is placed on a decision of the Assam High Court reported in State v. Ganga Ram Kalita, AIR 1965 Assam 9 where the learned Chief Justice held that where a discharge order has been passed, the Magistrate becomes functus officio so far as the case is concerned, and unless there is a fresh complaint or a fresh charge-sheet, no action in the matter can be taken by the Magistrate, and that in the absence of any, complaint, any attempt to go back on the order of discharge passed by him and to revive the case would amount in law to a review ofthe judgment of the Magistrate which is not permissible having regard to Section 369, Cr. P. C.
The learned Chief Justice, therefore, held that the order of the Magistrate suo motu reviving the case and proceeding with the trial of the same on its merits is clearly devoid of jurisdiction and Illegal. With great respect, I am unable to share this view which appears to be opposed to the consensus decisions already referred to. I do not think, that in substance, with reference to the question of jurisdiction, any distinction can be drawn between entertaining a fresh complaint and the rehearing of the original complaint. The argument that the Magistrate having made the order of dismissal is functus officio applies equally to both cases and the formality of putting a fresh complaint cannot be said to create a jurisdiction which without such formality a Magistrate would not have passed.
The remedy provided in Sections 436 and 437, Cr. P. C, are only enabling provisions and do not take away the jurisdiction vested in a Magistrate to rehear the complaint. The fact that the complainant has this remedy available to him would not be a sufficient ground for holding that the Magistrate is not competent to revive the order of discharge passed by him, based on a technical reason such as absence of the complainant
8. In the result, I would hold that the order passed by the learned Magistrate on 16-1-1967 reviving the case against the accused was perfectly a legal order and the subsequent order passed by him on 26-4-1967 is illegal I would accordingly allow this application, set aside the order dated 26-4-1967 passed by the learned Magistrate and order that the case be sent down to the learned Magistrate for disposal according to law.