1. The accused, six in number, were charged with rioting, Section 147, Indian Penal Code. This is a warrant case triable under Chapter XXI, Criminal Procedure Code.
2. The Magistrate took the evidence of complainant and his witnesses, and by his order, dated 10th September 1883, recorded that the charge of rioting was not proved, and discharged the accused under Section 253.
3. The Sessions Judge ordered (the date does not appear) under Section 437 further inquiry.
4. The Magistrate took the case on his file again, and, on notice to the parties, the case was posted for the 17th of December 1883. The complainant then gave in a list of witnesses to be summoned. The accused appeared in Court, and the case was adjourned to the 21st of December, and summonses issued to the witnesses. The further inquiry appears to have been held on the 26th of December 1883. In his judgment of that date the Magistrate finds that there was no proof whatever against the accused, Nos. 2 to 5, and it was clear there was no ground for the police to charge Nos. 2 to 5 with the offence complained of, and that, excluding them, there were not five or more persons engaged in the acts charged and therefore the offence of riot was not proved. He found that there was clear evidence that the first accused pelted stones and mud against those who went into his house to distrain property, and that the sixth accused stood close by with a stick in his hand to help the first accused. He found that the action of accused No. 1 and No. 6 amounted to an assault. He then stated that, having a doubt whether he could dispose of a case remanded for further inquiry under Section 437, he submitted the entire record to the Deputy Magistrate without disposing of the case.
5. The Sessions Judge by order of the 8th of February 1884 directed the Magistrate that, when the case was remanded for further inquiry and when the original charge fell through, but when it appeared on the inquiry that an offence other than that originally charged was proved, in such case the Magistrate could frame a new charge on the evidence, and proceed with the trial.
6. The record is referred to the High Court by the Sessions Judge at the request of the District Magistrate, who, it is stated, is of opinion that, when a case is referred under Section 437 for further inquiry, the Magistrate is only authorized to make inquiry and not to make an inquiry and try. The reasonable construction appears to be that the effect of the order for further inquiry is to set aside the previous order of discharge and leave the inquiry before the magistrate open, as it was before that order, to further evidence under Section 252, and to decision under Section 253 and subsequent Sections of Chapter XXI. If such is not the effect of the order for further inquiry, then the order for discharge stands, as also the order for inquiry, and the evidence taken on or result of the inquiry. There is no course pointed out by the Code for the determination of a case so circumstanced. Is the High Court to take the case upon revision and direct further proceedings after investigation of the facts? This would not be a convenient or reasonable construction of the Act. The practice has been, under the former Criminal Procedure Code and the present, to treat the order for further inquiry as setting aside the prior order of discharge. I see nothing in the Act to the contrary, and I think that such is the reasonable construction of Section 437, Criminal Procedure Code, and that the Magistrate on making the further inquiry must dispose of the case in one of the ways pointed out by Chapter XXI.
7. The Magistrate having thus power to deal with the case fully on the further inquiry, can he, when the original offence complained of is not proved, and when the facts prove a different offence, proceed to charge the accused with the latter offence?
8. If the original complaint was a summons case, then Section 246 would warrant the Magistrate in doing so if the second offence was also a summons case. Here the second offence under Section 352 is a summons case.
9. Section 254, Criminal Procedure Code, Chapter XXI, as to warrant cases, is analogous to Section 246 in Chapter XX as to summons cases. But there is no provision in either Chapter to authorize the Magistrate to try any case except under the Chapter applicable to the particular case; that is, a warrant case cannot be tried under Chapter XX or a summons case under Chapter XXI.
10. However, Section 238 appears to apply, as the offence of riot included the offence of force or violence and the grave charge gave notice to the accused of the circumstances going to constitute the minor one, of which he may be convicted. I do not see that there is anything to prevent the Magistrate, when he ascertains that the warrant case fails, from then and there trying the accused for the minor case in the mode pointed out for trying summons cases.
11. I, therefore, hold that the Magistrate had power to try the case of assault which appeared to be proved on the evidence, though the charge for rioting failed, and I would direct the Magistrate to proceed and dispose of the case accordingly.
Muttusami Ayyar, J.
12. In this case the Magistrate inquired into a complaint of rioting and discharged the accused under Section 253, Code of Criminal Procedure. On the petition of the complainant, the Sessions Judge directed the Magistrate to make further inquiry under Section 437, Code of Criminal Procedure. After further inquiry, the Magistrate came to the conclusion that, although no rioting was proved, the evidence showed that the accused might be convicted of assault. The Sessions Judge then directed the Magistrate to try the accused for such offence as might be established by the evidence. The District Magistrate, however, considered that the power to order further inquiry did not include a power to direct both inquiry and trial. The Judge refers the question whether a Sub-Magistrate, who is directed to inquire into a case under Section 437, is not at liberty to try the accused for an offence cognizable by him, if in the course of the inquiry such offence should be proved to have been committed.
13. Section 437 gives to the Sessions Court the power (which was exercised solely by the High Court under the former Code of Criminal Procedure) of reviving a prosecution once dealt with by the Magistrate. It is not limited to offences triable by the Court of Session only. In the absence of a special provision, a prosecution lawfully revived must be dealt with in accordance with law in the same way in which a prosecution originally instituted is dealt with, and I am, therefore, of opinion that the Magistrate is competent to try the accused for the offence of assault.