Charles Arnold White, Kt., C.J.
1. The general question argued before us in this cause was whether it was open to a magistrate to re-hear a complaint which was been dismissed by an order under section 203 of the Criminal Procedure Code, the order of dismissal not having been set aside by a higher court.
2. In support of the view that the magistrate had no such power, it was urged that a power to re-hear or revise, like aright of appeal, was the creature of statute, and that in the absence of express statutory provisions conferring such power, the power did not exist. I am not prepared to accept this proposition. It seems to me that the question whether there is a power to re-hear must be determined with reference to the enactments which create and regulate the jurisdiction of the magistrate. The Code confers upon a magistrate jurisdiction to enquire into an alleged offence. Prima facie, therefore, such jurisdiction exists in the case of an alleged offence. It must be held to exist unless it appears that something has been done, or some event has occurred, which has the legal effect of depriving the magistrate of this jurisdiction.
3. The question therefore is whether the fact of the dismissal of the complaint by an order made under Section 203 operates so as to deprive the magistrate of jurisdiction to enquire into the offence alleged in the complaint. The first matter to be considered is - is there any provision of the Code which lays this down in express terms. There is no such provision. In his Judgment in Nilratan Sen v. Jogesh Chundra Bhuttacharjee I.L.R. (1896) 23 C. 983, Banerjee, J., observes (p. 988): 'There is no express provision in the Code to the effect that the dismissal of a complaint shall be a bar to a fresh complaint being entertained so long as the order of dismissal remains unreversed.' 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 re-hearing 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 in a fresh complaint cannot be said to create a jurisdiction, which, without such formality, a magistrate would not have possessed.
4. It was argued that an order under Section 203 was a 'judgment' to which Section 369 applied. Section 369 provides, 'No Court other than a High Court, when it has signed its judgment, shall alter or review the same except as provided in Sections 395 and 484 or to correct a clerical error.' The Code does not define 'judgment', but Section 367 lays down what the language and the contents of judgment are to be. By Section 367, the judgment is to contain the decision and the reasons for the decision. Section 203 enacts that when a magistrate dismisses a complaint by an order under that section, he shall briefly record his reasons for so doing. If an order under Section 203 is a judgment within the meaning of Section 369, this provision in Section 203 is unnecessary and redundant; or, to put it another way, - the way in which it is put by Prinsep, J. in Dwarka Nath Mondul v. Beni Madhab Banerjee I.L.R. (1901) 28 C. 652 in the case of an order of discharge as in the case of an order dismissing, a complaint it is expressly required by the law that a magistrate should state his reasons, and it may be taken that if it had not been so required, it would have been unnecessary for the magistrate to state any reasons for his order. Consequently in this point of view, the order does not constitute a judgment.
5. In my opinion an order of dismissal under Section 203 is not a judgment within the meaning of Section 369. It is to be observed that in Dwarka Nath Mondul v. Beni Madhab Banerjee I.L.R. (1901) 28 C. 652. Ghose. J. who dissented from the six other Judges on the actual question for determination, was of opinion that the order made in that case which purported to have been made under Section 259 was not a judgment. The judge observes that an order of discharge made after an investigation of the merits is a judgment, but he points out that there is, in this respect a distinction between a summons and a warrant case, and he is careful to limit his observation to a warrant case.
6. It was further argued, in support of the view that the magistrate had no jurisdiction to re-hear, that even if the order made under Section 203 were not a judgment within the meaning of Section 369 the, general principle was applicable and the order was final unless and until set aside by a superior tribunal. What general principle? I know of no general principle which can be said to be applicable. It cannot be the principle on which the right to plead autrefois acquit is based, because Section 403 says that for the purpose of the exercise of this right the order is not an acquittal. The argument ab inconvenienti is of little weight. A magistrate who allowed the re-hearing of complaints which he had purported to dispose of to develop into a habit would, no doubt, attract the attention of the higher authorities. The question of jurisdiction, as I have already said, is to be determined by an examination of the provisions of the Code which confer and regulate the jurisdiction. There is no express provision of the Code which in express terms either gives or takes away the jurisdiction to enquire into an alleged offence with regard to which a complaint has been brought and has been dismissed. But in my opinion the Code implicitly, though not directly, gives the jurisdiction. The explanation to Section 403 enacts that the dismissal of a complaint is not an acquittal for the purposes of that section. The purpose of the section is to protect the person who has been acquitted from liability to be tried for the same offence. The explanation says that in the case of a dismissal he is not so protected. No doubt the section only applies to the case of a, person who has been tried, and in the case of dismissal there has been no trial. Strictly speaking neither the section nor the explanations apply to a dismissal; but it seems to me clear that1 what the legislature meant to lay down was that a dismissal is not a bar to further proceedings in respect of the alleged offence and that the right to take further proceedings is not dependent upon the exercise by the higher courts of the powers of revision conferred by the Code. If there is no bar to further proceedings, there is jurisdiction to entertain these farther proceedings, and if there is this jurisdiction there is nothing in the Code which deprives a magistrate of jurisdiction by reason of the fact that he has made an order dismissing the complaint. Thai this is the true construction, of the explanation to Section 403 seems to me clear when we read the explanation by the light of the corresponding enactments contained in the Code of 1872 to which Mr. Rangachari, in his able argument, called our attention, Section 147 of the Code of 1872 which corresponds, to Section 203 of the present Code, contains the provision that 'The dismissal of a complaint shall not prevent subsequent proceedings.' This provision does not occur in Section 203 of the Code, but in Section 403, we have the explanation that a dismissal is not an acquittal for the purposes of that section. There is nothing in the explanation to Section 460 of the Code of 1872, which corresponds to Section 403 of the present Code. Again Section 215 of the Code of 1872, which corresponds to Section 253 of the present Code, contains the explanation 'a discharge is not equivalent to an acquittal and does not bar the revival of a prosecution for the same offence.' This explanation does not occur in Section 253 of the present Code, but in Section 403 we have the explanation that the discharge of the accused is not an acquittal for the purposes of that section. There is nothing corresponding to this explanation in Section 460 of the Code of 1872. The language of the Code of 1872 in dealing with the effect of a discharge is even stronger than the language of that Code in dealing with the effect of a dismissal. The language in the one case is 'does not bar the revival of a prosecution'; in the other 'shall not prevent subsequent proceedings.' In the case before us we are only concerned with the question of dismissal, but if the legal effect of a discharge, when process has issued to the accused and there has, or may have been an investigation on the merits, is not to operate so as to bar the revival of a prosecution, it follows a fortiori that the legal effect of a dismissal, when no process has issued to the accused, is not to operate so as to bar the revival.
7. Turning once more to the Code of 1872, I find that Section 210, which provides for the withdrawal of a complaint contains a provision that a complaint withdrawn under that section shall not again be entertained. The corresponding section of the present Code (Section 242) does not contain this express provision, but it provides, in such a case, for the acquittal of the accused. The effect is precisely the same. It seems to me that the alterations effected in the present Code in connection with the matter under consideration were merely drafting alterations and were not intended to effect, and did not effect, any alteration of the law as laid down in the Code of 1872.
8. I observe that in the course of the argument in Dwarka Nath Mondul v. Beni Madhub Banerjee I.L.R. (1901) 28 C. 652 it was contended that as there was distinct provision in the Code of 1872 that a discharge was not to bar the revival of a prosecution, and no provision, in the same terms in the present Code, the legislature intended to curtail the power of revival, and Mr. Justice Ghose in his dissenting judgment in that case (See page 667) and also in his dissenting judgment in Mir Ahmad Hossein v. Mahomed Askari I.L.R. (1902) 29 C. 726. appears to accede, to this argument, The inference which I draw is precisely the opposite to that drawn by the learned Judge. It seems to me that the legislature in the present case did not intend to alter the law as laid down in the Code of 1872 with regard to this question. Assuming, as appears to have been assumed by the learned Judge, that under the Code of 1872, in the case of an order of dismissal or of discharge, the magistrate making the order had jurisdiction to re-hear the case, I think the law is the same under the present Code. If the legislature had intended to alter the substantive law in a matter of jurisdiction, they would have done so expressly and directly and not by a side-wind. To my mind, the alterations in the present Code amount to nothing more than a transposition of sections, and, possibly, the adoption of a more scientific terminology. In the cases in which; the view has been taken that a magistrate has no jurisdiction to re-hear, the judgments proceed mainly upon the ground that, having regard to the provisions of Section 437, which gives power to the higher courts to make further enquiry into a complaint which has been dismissed, the legislature cannot have intended that the tribunal which deals with the case in the first instance should have the power to re-hear. Now, Section 437 is an enabling section enacted for the purposes of given powers of control and revision to the higher courts. I cannot see how the conferring of such powers can be said to operate so as to cut down the jurisdiction of the court which deals with the case in the first instance.
9. As regards the authorities, so far as the Calcutta High Court is concerned, Prinsep, J., points out in his judgment in Dwarka Nath Mondul v. Beni Madhab Banerji I.L.R. (1901) 28 C. it was frequently held under the Code of 1872 that a magistrate could re-heat a complaint which had been dismissed, though the Calcutta High Court thought proper to restrict the exercise of the power to cases in which fresh evidence was forthcoming. I am bound to say, however, that I feel some doubt as to whether the cases to which the learned Judge refers, viz., Hari Singh v. Danish Mahomed (1873) 20 W.R. Crl. 46, Kistoram Mohara v. Anis (1873) 20 W.R. Crl. 47, Empress v. Donnelly (I.L.R. 1870 2 C. 405 and In the matter of Dijahur Dutt I.L.R. (1879) 4 C. 647, altogether support his statement as to the course of practice in Calcutta.
10. In Nilraten Sen v. Jogesh Chundra Bhuttacharjee I.L.R. (1896) 23 C. 983, the judgment proceeded upon the ground that when the Code lays down a procedure for having an order of dismissal set aside, it is reasonable to conclude that the legislature intended that the order of dismissal should be interfered with only in the manner provided (see judgment of Banerjee, J., at page 988).
11. For the reasons which I have stated this view does not seem to me to be sound. In Komal Chundra Pal v. Gour Chand Audhihari (1897) I.L.R. 24 C. 286, the Court merely followed the decision of the Calcutta High Court of the previous year. In Dwarka Nath Mondul v. Beni Madhub Banerjee (1901) I.L.R. 28 C. 952 and Mir Ahmad Hossein v. Mahomed Askari (1902) I.L.R. 29 C. 726 to which the reference has been made a different view was taken by Full Benches and I think that this view was right. As regards the Bombay High Court the only reported case upon the point appears to be Reg v. Devama (1875) I.L.R. 1 B. 949. In this case the same view was taken as that adopted in the recent Calcutta decisions. The matter came before the High Court, but the High Court declined to make any order upon the ground that it was open to the magistrate who had succeeded the magistrate who made the order of dismissal to re-hear the case if he thought fit. The cases of Queen Empress v. Bhimappa Bin Ramanna (1894) I.L.R. 19 B. 732. and In re Harilal Buch (1897) I.L.R. 22 B. 949 do not appear to me to be in conflict with this decision.
12. The same view was also taken by the Allahabad High Court in Queen Empress v. Puran (1886) I.L.R. 9 A. 85 and I do not think this case can be distinguished from Queen Empress v. Adam Khan (1899) I.L.R. 22 A. 107, on the grounds suggested by Banerjee, J., in the latter case (see p. 989).
13. In Queen Empress v. Adam Khan (1899) I.L.R. 22 A. 107, the Allahabad High Court expressly limited their decision to the facts of the case, before them. They did not decide that a magistrate had no; jurisdiction to re-hear or that the earlier Allahabad case was not good law. They held that when a competent tribunal has dismissed a complaint, another tribunal of exactly the same powers cannot re-open the same matter.
14. With all respects to the learned Judges who decided the case of Mahomed Abdul Mennam v. Panduranga Row (1904) I.L.R. 28 M. 255. I am unable to agree with that decision or with the ruling referred to in Mr. Weir's Criminal Rulings, pp. 874 and 875.
15. In Chinnathambi Mudali v. Salla Gurusamy Chetty (1904) I.L.R. 28 M. 310 which came before me as a single Judge, I took the view that the decision of this Court in Mahomed Abdul Mennan v. Panduranga Row (1904) I.L.R. 28 M. 255 did not preclude me from holding following Dwarka Nath Mondul v. Beni Madhab Banerjee (1901) I.L.R. 28 C. 652 that a magistrate had jurisdiction to re-hear a case in which he had discharged the accused by an order made under Section 259, though I did not decide the case upon that ground since it appeared to me that it was open to the magistrate to proceed with the case upon the fresh complaint which had been filed in that case. But, as I already stated I do not think that, as regards the question of jurisdiction, the filing of the fresh complaint makes any difference I note that I was in error in that case in saying that in Mahomed Abdul v. Panduranga (1904) I.L.R. 28 M. 255, Nilratan Sen v. Jogesh Chundra (1896) I.L.R. 23 C. 983, Komul Chundra v. Gourehand (1897) I.L.R. 24 C. 286, Mir Ahmad Hossein v. Mahomed Askari (1902) I.L.R. 29 C. 726, the order was made under Section 208. It was made under that section in the first three cases. In the last case it was made under Section 253.
16. The case before us relates only to an order of dismissal under Section 203, and for the purposes of the case it is enough to say that in my opinion it is open to a magistrate to re-hear; a complaint which he has dismissed by an order of dismissal under Section 203 although the order has not been set aside by a higher Court. I may add, however, that, as regards the point which has been under consideration in this case, I do not think that any distinction can be drawn between an order made under Section 203 and an order made under Section 253 or Section 259.
17. The Sessions Judge will be directed to proceed with the trial.
Subrahmania Aiyar, J.
18. The question for our determination on this reference, stated in the abstract, is when a magistrate, having jurisdiction to entertain a complaint, dismisses the complaint under Section 203 of the Criminal Procedure Code or where he discharges the accused, whether in such cases it is competent to the magistrate, either at the instance of the complainant or of his own motion, to set aside the dismissal or the discharge and revive the prosecution.
19. The view, adopted in the decisions cited in the argument, that the Magistrate is competent to do so, seems to rest on two assumptions. One of the assumptions is that because the plea of a previous acquittal is not available for the accused in cases where the complaint is dismissed or where the accused is discharged, therefore, it is competent to renew the prosecution even though: the order dismissing the complaint or the order discharging the accused, has not been set aside. On principle this assumption is clearly unsound. Now, of course, the reason for the plea of autrefois acquit is that an accused person should not in respect of an offence be in jeopardy of prosecution more than once. Though technically such a plea cannot be relied on where there has been no trial resulting in an actual acquittal, it would be impossible to contend that the great principle with reference to which the law allows the said plea should be inapplicable to case s where the prosecution failed before it reached the stage without any fault on the party of the accused. If it is justice that a person, prosecuted on a former occasion upon evidence which appeared sufficiently strong to Warrant his being put on trial and being called upon for his defence and his evidence, should not be vexed again in the matter when the trial terminates in his favour, it must a fortiori be so when the evidence on which his prosecution was initiated was so weak as to justify the trial being concluded earlier and the accused discharged and saved from the necessity of entering upon the vindication of his innocence. Surely it is also but good sense to hold that, when magistrate after examining the complainant and taking the steps authorized by law to satisfy himself as to its being well-founded, dismisses it under Section 203, the complainant should not be permitted to renew his complaint so long as the order against him stands undisturbed. Were it otherwise, the complainant in such unfounded cases would have the power to vex his opponent and waste public time without limit inasmuch as if it is allowable to a complainant to renew his complaint once it would logically follow he could do so as often as he chooses, the authorities being powerless to prevent such action on his part except by recording a judgment of acquittal also as to enable the accused to plead the acquittal in bar of such frivolous proceedings by the complainant. Nor is authority wanting for the view that even where the plea of autrefois acquit is not technically available, the principle of it is available for the accused when the interests of justice require its extension in his favour. Bishop in his Commentaries on the law of Criminal Procedure after pointing out that according to the better doctrine a person is in legal jeopardy when the jury is empanelled and ready to try him on a valid indictment and there is no latent or patent obstacle in the judicial path to prevent the cause proceeding to the end, observes, 'then if, contrary to his rights and without his consent, the cause is suffered to break off before a verdict of acquittal or conviction is reached, there cannot technically be a plea autrefois acquit or autrefois convict by reason of the jeopardy, yet the prisoner is entitled in some way to rely upon it afterwards for his protection.' (Edition of 1866, Volume I. Section 573). The same jurist devotes Sections 584 to 587 to the consideration of what he calls the defence of former jeopardy, when neither of the pleas autrefois acquit or autrefois convict is available, and lays down that a plea analogous to the plea of autrefois acquit setting out the special facts which show the jeopardy may be brought forward as the proper method of taking the objection and in suggesting a form for this plea, he inserts the clause 'and the said A (accused) further saith, that, though no verdict was reached in said case, the failure there of was not owing to any consent by him the said A made or given, or any interposition of Providence, or any other thing which in law should subject the said A to be again put in jeopardy; and the record of the said former jeopardy still remains, and is (in no way reversed or made void.'
20. Such being the necessary deductions from the fundamental principle nemo bis vexari, let us see whether there is anything in the provisions of the Criminal Procedure Code which preclude the plea analogous to autrefois acquit being set up by a person against whom prosecution is sought to be revived while the order dismissing the complaint against him or discharging him has not been set aside. In determining the precise scope and effect of Section 403, (on the explanation to which so much stress was laid by Mr. Rangachariar) the departure made by the framers of the Code in using the term acquittal in a sense different from what is ordinarily attached to it as a term of English law, must be understood. Now it is scarcely necessary to say that the words 'conviction' and 'aquittal' have meanings of various shades. Burgess v. Boetefeur 8 Scott. N.R. 194 is in point. There Tindal C.J., observes at page 211; 'Undoubtedly 'conviction' is verbum equivocum : it is used sometimes to denote the verdict of the jury, and at other times in its strict legal sense, to denote the judgment of the Court.' Again at page 212 he observes : 'So, the word 'acquittal' is an equivocal expression : in common parlence a party is said to be acquitted by the verdict of the jury finding him not guilty; but it is only the formal judgment of the court that in legal intendment satisfies the word acquittal.' Turning to the meaning of the latter term as given by lexicographers, according to Webster it is 'a setting free, or deliverance from the charge of an offence, by verdict of a jury or sentence of a court.' Bouvier in his law Dictionary expresses the same in similar words 'the absolution of a party accused on a trial before a traverse jury.' Another explanation of the term by the latter author is 'the absolution of a party charged with a crime or misdemeanour.' The distinction between the two meanings of course is that the absolution in the former or the narrower sense takes place when the trial has reached its last or final stage, while in the latter case, the absolution is at some earlier stage of the trial. Under the common law the plea of autrefois acquit was technically available only where there was an acquittal after verdict or sentence. In the case already cited, Tindal C.J., points this out when he observes, a 'plea of autrefois acquit or autrefois convict could only be satisfied by the production of a regular record' (i.e., a judgment following a verdict). Our Criminal Procedure Code, however, has modified the common law rule in regard to certain instances by special provisions. Thus under Section 383 of the Code, a nolle prossequi by the Advocate General operates as an acquittal if the judge so directs. Under Section 494 on the withdrawal from prosecution after a charge has been framed or when no charge is required, acquittal follows. Similarly in summons cases under Section 248 if the complainant withdraws with the permission of magistrate. These are clear instances in which the plea of autrefois acquit could not have been raised according to the common law' for the reason that there could be no judgment or verdict in those cases. Thus acquittal as used in Section 403 comprises cases which would not be cases of acquittal but for the Code. Having thus altered the strictly legal signification of the term in regard to those instances not by any definition of the term in Section 403, but by provisions in other parts of the Code, it was necessary for the legislature to guard against the term being extended to cases not contemplated to be comprehended by it and to which the plea of autrefois acquit was in its strictly technical aspect not applicable. If, was for this purpose that the explanation to Section 403 seams to have been added, but not, I take it, with the object of barring resort to a plea analogous to autrefois acquit in cases where such plea ought to be allowed on grounds of justice. But Mr. Rangachariar reads the words 'is not an acquittal for the purposes of this section' in explanation to Section 403 as equivalent to 'in no way bars a fresh prosecution for the same offence' or words to that effect. Is it right to attribute to the legislature an intention to leave, say, a person discharged by a magistrate having jurisdiction to be proceeded against a second time for the same offence subject to no qualification whatever? That could be right if the maxim nemo bis vexari would not be thereby contravened. The observation of Bishop quoted above that legal jeopardy begins when the jury is empanelled and there is no obstacle to the trial of the prisoner being proceeded with has reference to a system where trials are before a jury and the anterior proceedings are in the nature of non-judical investigations. (Cf. Stephen's History of the Criminal Law of England, Vol. I, 497). But under our Criminal Procedure Code even in cases committable to a Court of Session the enquiries by a magistrate are judicial proceedings (Section 4(m) of the Crl.P.C.) and in cases triable by himself, his enquiries are of course none the less so. Ninety-nine out of a hundred of these cases are triable without jury and therefore the jeopardy in matter under consideration cannot but be held to attach at all events the moment an accused person appears before a magistrate whether under a warrant or a summons and the case is ready for the prosecution evidence being taken. It is impossible, therefore, to say that either in fact or in point of law an accused person who has once been discharged and who is put up again before the magistrate for the same offence is not in jeopardy, within the spirit of the rule nemo bis vexari, and consequently it is unreasonable to suppose that the legislature implied that an accused person who had been discharged by a magistrate having jurisdiction is not exposed to jeopardy a second time in being proceeded with for the same offence, and therefore meant to lay down that a plea analogous to autrefois acquit was unavailable in such cases. That in theory the legislature looked upon a discharge as standing on an almost equal footing with an acquittal cannot be shown more emphatically than it is by Section 250 of the Criminal Procedure Code though that section deals only with offences triable by magistrates. The provision made thereby that a magistrate may award compensation to the accused person not only when he is acquitted but likewise when he is discharged is not consistent with any other view. It is impossible to justify such an award if the theory of the Code is that the discharge of an accused is virtually no better than a stay of proceedings which will cease when the complainant or the magistrate chooses to move in the matter. If it be asked why then maintain any distinction between 'acquittal' and 'discharge' with reference to an accused's right to set up former jeopardy, the answer obviously is that acquittal, as a decision arrived at after a fuller enquiry than that in which the discharge is ordered, ought to carry with it the comparatively important right of enabling the accused to rely on the plea of autrefois acquit instead of one in the nature of or analogous to such a defence. Cases of dismissal of complaint under Section 203 stand more or less on a similar footing to cases of discharge for our present purpose, and the only proper intention to be attributed to the Legislature is that it did not permit the commencement of fresh proceedings in respect of the same offence so long as the order of discharge or the order of dismissal remains in force, ample provision having been made in Section 437 for setting aside such orders in revision. No doubt the above reasoning will not apply to the other two cases referred to in the explanation to Section 403, viz., stay of proceedings under Section 249 and entry under Section 273. What the preliminaries are for the continuation of proceedings stayed or renewal of the charge on which entry is made are matters unprovided for expressly in any part of the Code and on general principles the magistrate who ordered the stay of proceedings under Section 249 may for good reasons remove the stay and proceed further, and as regards the entry under Section 273, the High Court may likewise remove the stay and sanction the case to go on. It may not be perhaps out of place to add that the English Criminal Procedure also, though it is less homogeneous than the Indian Criminal Procedure Code does not tolerate the anomaly of a complainant renewing his accusation repeatedly inasmuch as a prosecution once launched must proceed until it runs out its course. Sir F. Stephen says : 'The unlimited power to institute prosecution does not carry with it an unlimited control over them when they are instituted. When a charge has been made the maker of it is usually bound over to prosecute, and when a bill has been sent before the grand jury; the matter is entirely out of the original prosecutor's hands and must run its course, unless the Court before which it is to be tried sanctions the withdrawal of the charge, or unless the Attorney-General as the representative of the Crown, the nominal prosecutor, enters a nolle prosequi, which operates not as an acquittal, but as a stay of proceedings upon the particular case to which it refers.' - History of the Criminal Law of England, Vol. I, p. 496.
21. It must be further noted that in the matter of the conduct of prosecutions the latitude allowed to a private individual under the Indian law is more limited than that accorded to him in England. Referring to it, the same learned author writes : 'The right to prosecute for criminal offences is not, properly speaking, left in India, as it is in England, in the hands of private persons. A person who wishes to prosecute another may complain to a magistrate, but there is nobody like a grand jury before which he can send up a bill, and if he does complain and his complaint is admitted, he is not entitled without the magistrate's permission, to conduct the prosecution.' (History of the Criminal Law of England Vol. III, p. 329). How then can it be reasonably argued that when the complaint is not admitted our Code implies that the complainant has power to set the law in motion again and again notwithstanding that the order dismissing the complaint remains unreversed.
22. Passing now to the other assumption on which the view I am controverting rests viz., that a magistrate in the circumstances stated in the opening part of this judgment has power to revise his own order dismissing the complaint or discharging the accused with a view to revive the prosecution.. Certainly such power is not inherent in a magistrate. As pointed out by me in Rajah Parthasarathi Appa Row v. Rajah Rangiah Appa Row (1903) I.L.R. 27 M. 175 inherent power must not be presumed to exist and could not be invoked 'except for the limited purpose of preserving and enforcing order, securing efficiency and preventing abuse of process in the exercise of a jurisdiction which the Court otherwise possesses.' The passage in Syud Tuffuzzool Hossein Khan v. Raghoonath Pershad (1871) 14 M.I.A. 48, relied on bears upon one of the classes of cases referred to above as admitting of the presumption of inherent powers. The case of In re Samsudin (1899) I.L.R. 22 B. 711, is an instance where it was properly held that it was competent for the Court to recall its process for the same having been issued in a case where the requisite sanction had not been obtained, the issue of the process was in a sense without jurisdiction, and therefore the recall thereof was necessary as otherwise the process of the Court would be abused. How such precedents help the contention of Mr. Rangachariar in the present case, it is difficult to see. It is clear, therefore, that no inherent power to revise an order of dismissal or discharge made by a magistrate in the due exercise of his powers under the Cede can be rightly taken to exist and the power if any to revise in such circumstances should be given expressly by statute See e.g. In re Harilal Buch (1897) I.L.R. 22 B. 949. The Code itself implies this as, for instance, in Section 154, Clause 4 and Section 489. Surely, if the magistrate can be said to have inherent power to set aside an order of discharge, it cannot be denied that he can revise orders passed under numerous other sections of the Code, viz., 125, 136, 137, 140, 146, (Clause. 2), 147, 195, 250, 488 (Clause 1), 517, 519, 522, but that certainly is absurd.
23. Mr. Rangachariar's argument that an order dismissing the complaint or discharging the accused is not a final order requires no serious notice. The order is as final as a judgment of acquittal, is final so long as it is not set aside by an authority competent to do so under the Code. That a prosecution for a false charge under Section 211, I.P.C, lies on the dismissal of a complaint or the, discharge of an accused is practically conclusive of this view.
24. It follows, therefore, whether looked at with reference to the right of the prosecutor or the competency of the magistrate, an order dismissing a complaint or discharging an accused precludes the same matter from being enquired into so long as such order remains in force. I would, therefore, set aside the committal in question as contrary to law on the ground that the Head Assistant Magistrate had no power to re-entertain the complaint as he did.
I must express my entire concurrence with the judgment of Mr. Justice Subrahmania Aiyar, to which I have nothing to add.
25. In this case the Head Assistant Magistrate dismissed a complaint under Section 203, Criminal Procedure Code, on the ground that no offence was disclosed.
26. This opinion was wrong, and on the complainant explaining this to the magistrate the same day, the magistrate proceeded to re-hear the complaint and deal with it on the merits.
27. The Sessions Judge thought he had no power to do so, unless and until the order of dismissal had been set aside by a superior court under Section 437, Criminal Procedure Code. In support of this view he relied on Mahomed Abdul v. Panduranga (1904) I.L.R. 28 M. 255which follows the case in Weir, pp. 874 - 5 and Queen Empress v. Adam Khan (1899) I.L.R. 22 All.106, Nilratan Sen v. Jogesh Chandra (1896) I.L.R. 23 C. 983 and requested that the commitment might be quashed.
28. The conclusion arrived at by the learned Chief Justice is in accordance with the view which I expressed when proposing a reference to the Full Bench, and having now had the advantage of hearing the question fully argued, I think that that view is correct.
29. I then pointed out that in all the cases relied on by the Sessions Judge it was a different magistrate of co-ordinate jurisdiction who entertained the second complaint and that in the Allahabad case the Judges expressly guarded against its being supposed that they ruled that the same magistrate might not re-entertain a complaint on sufficient ground being shown, and expressly refrained from dissenting from a decision of their Court in that sense in Queen Empress v. Puran (1886) I.L.R. 9 A. 85. The question was examined at great length by the Full Bench of the Calcutta High Court in Dwarka Nath Mondul v. Beni Madhab Banerjee (1901) I.L.R. 28 C. 65 (Seven Judges) as regards Presidency Magistrates and in Mir Ahmad Assein v. Mahomed Askari (1920 I.L.R. 29 C. 726 (five Judges) as regards Mofussil Magistrates, and in these it was decided (only one Judge in each case dissenting) that dismissal by a magistrate under Section 203. Criminal Procedure Code, was no bar to a re-hearing by the same magistrate. They did not decide whether it would bar a re-hearing by a different magistrate.
30. In the present case it is the same magistrate who re-heard the case, and, therefore, the rulings in Mahomed Abdul v. Panduraga (1904) I.L.R. 28 M. 255 and in Weir p. 874 do not apply.
31. The question must, I think, be determined by a reference to the provisions of the law under which the magistrate is empowered to take cognizance of offences and entertain complaints. A magistrate under the Code of Criminal Procedure in India is not a mere Judge whose duty is confined to deciding cases brought before him by contending litigants. Under Section 190 Criminal Procedure Code, he has jurisdiction to take cognizance of any offence not only upon a complaint or upon a police report, but also upon his own knowledge, or information or even suspicion that an offence has been committed.
32. He has, in fact, jurisdiction to bring offenders to justice for the protection of the public and in the interests of the public, and he can exercise that jurisdiction unless any provision of the Code or general principle of the criminal law restricts its exercise. There is no provision of the Code which declares that the dismissal of a complaint under Section 203 shall bar the magistrate's jurisdiction to bring the offender to justice.
33. Section 403 only refers to previous acquittals or convictions and is expressly declared in the Code itself not be apply to the dismissal of a complaint and certain other non-final orders; and the only other section that might be supposed to apply, viz., Section 437, is an enabling section which permits superior courts to revise and control the exercise of their powers by the magistrates having original jurisdiction. Such an enabling section cannot in my opinion be held to restrict by implication the exercise by a magistrate of the powers given to him by the Code.
34. Section 249 gives a magistrate power to stop proceedings and to discharge the accused in any case instituted otherwise than upon complaint, and I do not think that it has ever been doubted that the magistrate can revive proceedings stayed under this section if circumstances justify his doing so. If he has that power in regard to cases not instituted on complaint, it is difficult to see why his powers should be less because the case has been instituted on complaint and has been dismissed, as in this case, for no sufficient reason, but merely because the magistrate misunderstood what the complaint really was.
35. No general principle of the criminal law such as nemo bis vexari is infringed, for, in the present case, no process had been issued, and the accused did not even know that a complaint had been made against him.
36. Moreover, the history of the legislation embodied in. Section 403 and the corresponding provision of the earlier Codes seem to show, as pointed out in the judgment of the learned Chief Justice, that the Indian legislature deliberately restricted the application of the doctrine to cases of acquittal or to cases in which the order of the court is declared by the Code to have the effect of, or to operate as, an acquittal.
37. The principle appears to be that unless the proceedings have reached such a stage of finality that an acquittal is recorded, or that an order is made which the Code declares shall operate as an acquittal, there is no bar.
38. To extend the doctrine, in effect, to all cases in which a complaint has been dismissed under Section 203, or an accused has been discharged, is not warranted by the Code, and in fact, introduces restrictions on the powers with which the Code invests magistrates in order to bring offenders to justice.
39. I concur in the judgment of the learned Chief Justice and would direct the Sessions Judge to proceed with the trial.
40. On the 21st July 1905 one Chinnaya Gounden presented a complaint to a Sub-Divisional Magistrate (Head Assistant Magistrate, Coimbatore). On the same day, the magistrate examined the complainant under section 200, Cr.P.C. and then and there dismissed the complaint under Section 208, Cr.P.C. on the ground that no offenoe had been committed. Later, on the same day, Chinnaya presented a petition to the same magistrate in which he represented that his complaint was that the accused persons had committed forgery and prayed that that complaint might be taken on the file and enquired into. The magistrate accordingly on the same day a second time examined the complaint under Section 200, Cr.P.C. and having, as a result of that examination, ascertained that he had made a mistake in dismissing the complaint under Section 203, C.P.C. on the 24th July made the following order : 'The offence complained of falls under Section 467 of the Indian Penal Code, besides the minor Sections 419 and 468, I.P.C. forwarded to the Stationary Sub-Magistrate of Pollachi for enquiry and commitment to the Court of Session if a prima facie case is made out.' The Sessions Judge has referred the case to this Court on the ground that the Magistrate had 'no jurisdiction to revive the proceedings and his order of 24th July referring the case to the Stationary Sub-Magistrate for enquiry was made without jurisdiction and did not give jurisdiction to the Sub-Magistrate,' I have no hesitation in holding that the procedure adopted by the Magistrate was perfectly legal. I followed the decision in Dwarka Nath Mondul v. Beni Madhab Banerjee (1901) I.L.R. 28 C. 652 and in Mir Ahmad Hossein v. Mahomed Askari (1902) I.L.R. 29 C. 726 and dissent from that in Mahomed Abdul Mennan v. Panduranga Row (1904) I.L.R. 28 M. 255 I do not consider it necessary to give any reasons for arriving at this conclusion at any length as they are fully set out in the judgment just delivered by the learned Chief Justice with which I, in the main, concur. I wish, however, to state clearly in order to avoid all possibility of misunderstanding that the opinion that I have arrived at is with reference to the dismissal of a complaint under Section 203, Criminal Procedure Code, and that I avoid giving any opinion as to cases in which accused persons are discharged under Section 253 or 259, Criminal Procedure Code. I will now touch briefly on one or two of the arguments put forward in support of the proposition that the action of the Magistrate was contrary to law. It is pleaded that his procedure offends against the maxim nemo bis vexari, &c.; This may be a good argument where an accused person has been discharged under Section 253, Criminal Procedure Code, or Section 259, Criminal Procedure Code; but it is clear that it has no application to a case where a complaint is dismissed under Section 203, Criminal Procedure Code. The persons against whom Chinnaya Gounden complained were in no way vexed in consequence of the complaint which the Head Assistant Magistrate dismissed under that section on the 21st July. Allusion has also been made to Section 250, Criminal Procedure Code. On referring to the wording of that section it will be found that the persons against whom Chinnaya Gounden complained could not have obtained compensation in respect to the complaint dismissed under Section 203 as they were not either discharged or acquitted. Another argument that has been advanced is that if it is declared that the action of the Head Assistant Magistrate in the present case was legal, there will be nothing to prevent a magistrate from dismissing a complaint every day for, say, a month under Section 203, Criminal Procedure Code, and at the end of that time committing the case to the Court of Sessions. It may be urged with equal force that there is nothing to prevent a 3rd Class Magistrate in this Presidency from committing every petty case of assault or nuisance that comes before him to the Court of Sessions. To advance arguments such as this is to ignore the main principle on which the Criminal Procedure Code is based, namely, that it is the duty of a District Magistrate to see that all the Magistrates in the district exercise the powers conferred on them not only in accordance with law but also in an equitable and rational manner.
41. I would answer this reference by informing the Sessions Judge that the committal to his Court of the persons named in his letter of reference is legal and has not been passed without jurisdiction.