Muttusami Ayyar, J.
1. This reference arises out of Calendar Case No. 133 of 1890 on the file of the Second-class Magistrate of Cuddalore taluk in the district of South Arcot. There is a place of worship called Muniyanar Kovil in the midst of a jungle in the village of Perumathoor in that taluk. One Aruna-chela Gounden, who was its pujari, died about 19 months ago, and upon his death, a dispute arose between his widow and the second accused as to the right of succession to the office of pujari. There is no temple at the place of worship, but the property of the shrine was secured in a building adjacent to the house of the late pujari's widow, the first witness for the prosecution. Her complaint was that the building was in her possession, and that on the 14th April last, the ten accused assembled together in order to take forcible possession of the property, committed a riot, broke into the building, and breaking open a box containing jewels carried them off. Several witnesses gave evidence in support of her complaint, and the first and second accused produced the property alleged to have been carried away by them and Ors. The Police charged the accused with offences punishable under Sections 454, 380 and 147, Indian Penal Code. After recording the evidence for the prosecution, the Magistrate discharged the accused on the ground that the evidence was, in his opinion, worthless. The Sessions Judge after examining the record under Section 385, Criminal Procedure Code, came to the conclusion that though very possibly there was no dishonest intention, and if so, there was no theft, yet there was a large body of evidence given by seven witnesses for the prosecution which was materially corroborated by facts not denied, and was in accordance with the probabilities of the case, and that the Subordinate Magistrate had not properly shifted the evidence. The Magistrate having, however, recorded the whole of the evidence available for the prosecution, the Sessions Judge has referred for the decision of this Court the question whether under Section 437, Criminal Procedure Code, it is competent to a District Magistrate or a Sessions Court or the High Court to order further enquiry or a re-trial when additional evidence is not forthcoming.
2. On this question,there is, as observed by the Judge, a conflict of decisions. In Queen-Empress v. Amir Khan I.L.R. 8 Mad. 336 a Divisional Bench of this Court held that Section 437 authorized further enquiry only in those cases in which other evidence was available or the evidence already taken had not been properly taken. In more recent decisions, however, the High Courts at Bombay and Allahabad and the majority of Judges at Calcutta have held that such enquiry may be ordered though no fresh evidence is forthcoming--Queen-Empress v. Dorabji Hormasji I.L.R. 10 Bom. 131, Queen-Empress v. Chotu I.L.R. 9 All. 52, Hari Dass Sanyal v. Saritulla I.L.R. 15 Cal. 608. I do not think that the decision in Queen-Empress v. Amir Khan can be supported. The term ' enquiry ' is not in its ordinary acceptation restricted to the mere taking of evidence, but it includes also a consideration of its effect in relation to the complaint forming the subject of the enquiry. This being so, it is not clear why the expression ' further enquiry ' should not signify as well a fresh consideration of the effect of the evidence already recorded as a supplemental enquiry upon fresh evidence.
3. Again, Section 437 premises a possible miscarriage of the previous enquiry resulting in the discharge of the accused and creates a revisional power to set right what has miscarried. Such being the intention, there is no reason where a perverse finding or a finding which is in all probability wrong or manifestly at variance with the recorded evidence, should not be liable to revision on considerations overlooked by the Subordinate Magistrate and indicated by the revising tribunal. It is also to be observed that the order which is the subject of the revision under Section 437 is an order of discharge and not of acquittal and that there has been no final adjudication on the guilt or innocence of the accused.
4. This view receives support from Section 435 which mentions the correctness of any finding' as one of the matters to be considered whilst examining the record of the Subordinate Court.
5. It may further be noted that a revisional power is conferred by Section 437 in the case of an order of discharge in the same terms upon the High Court, the Court of Session, and the District Magistrate, while Section 439, which relates exclusively to the High Court, declares ha revisional powers to be the same as the powers of an Appellate Court, which include a power to set aside a finding on a question of fact.
6. Furthermore, it is clear from Sections 378 and 380 that there may be further enquiry without additional evidence. It is true that Section 436, which refers to cases triable exclusively by the Court of Session, empowers that Court or the District Magistrate to order the accused to be committed for trial instead of directing a ' fresh enquiry.' In this class of cases, three contingencies may possibly arise; either the evidence already recorded by the Magistrate may warrant a commitment upon the matter in respect of which the accused has been discharged, or some further evidence may be available, or the evidence may prove some other offence if not the offence as to which the accused has been discharged. In the first case the order of discharge has to he set aside and a commitment ordered; in the second case a supplemental enquiry has to be made, and in the third case, enquiry has to be directed in regard to a new offence. The words 'fresh enquiry' were perhaps considered appropriate as words of reference to the second and third contingencies contemplated by the section. However this may be, there is a clear indication of an intention not to give finality to an order of discharge which has prima facie miscarried, and I am therefore inclined to adopt the view of Mr. Justice Wilson that no substantial distinction is intended to be denoted by the words 'fresh enquiry' and 'further enquiry.'
7. It is no doubt true that Section 437 of the present Code goes beyond Section 298 of the Code of 1872 under which it was often held that neither the Court of Session nor the District Magistrate was competent to order further enquiry except upon fresh evidence in cases in which the accused has been improperly discharged. On comparing, however, Section 435 of the present Code which formulates the grounds of revisional jurisdiction with the corresponding Section 295 of the Code of 1872, it will be observed that the present Code gives a power to the Sessions Court and the District Magistrate to examine into the correctness of a finding on a question of fact, whilst the Code of 1872 conferred upon them no such power.
8. The intention seems to be to give a revisional jurisdiction to the Sessions Court and the District Magistrate in cases of improper discharge concurrently with that of the High Court and to include an incorrect finding among the matters liable to revision, and thereby to obviate the expense and inconvenience which the necessity to resort to the High Court might in such cases entail. Though the power thus conferred is wide, yet it must be remembered that it is a discretionary power confided only to the two principal tribunals in each district and that the discretion is a judicial discretion to be exercised subject to the supervision and control of the High Court.
9. Again, the general scheme of revision embodied in Sections 435 to 439 includes within its scope a reconsideration of the evidence already recorded in cases in which the accused is improperly discharged. An incorrect finding is specified by Section 435 as one of the matters to be examined into on revision. It is again contemplated by Section 436 as the basis of an order for commitment in cases triable exclusively by the Court of Session. The power to order further enquiry in cases in which the accused is improperly discharged is conferred by Section 437 upon the Court of Session and the District Magistrate in common with the High Court, while Section 439 gives to the High Court as a Court of Revision all the powers of an Appellate Court. Section 438 gives to the Court of Session and the District Magistrate power to recommend to the High Court that a sentence improperly passed be reversed. The true construction appears to me to consist first in reading Sections 435 and 439 together as indicating the grounds of revisional jurisdiction and the tribunal competent to interfere in all cases, and in reading Section 438 as subsidiary to them, secondly in reading Sections 436 and 437 as contemplating two classes of cases in which a concurrent jurisdiction is given by way of special exceptions on the ground that when an enquiry resulting in the improper discharge of the accused has miscarried, the Court of Session and the District Magistrate should be enabled to correct the error.
10. I would, therefore, answer the question referred to us in the affirmative and intimate to the Sessions Judge that it is competent to him to order further enquiry under Section 437 in the case reported for orders.
11. I concur.
12. I concur.
13. The section mentioned in the question referred to the Full Bench is one of the four which prescribe what action may be taken on an examination of the record under the provisions of Section 435. The first of the four sections, Section 436 deals with cases exclusively triable by a Court of Session. It gives the Court of Session or District Magistrate power, in cases an accused person having been improperly discharged, to order him to be committed for trial. Section 437 is not restricted to any particular class of offences. It refers to the case of a complaint dismissed under Section 203 or an accused discharged under Section 209 or Section 253 and authorizes the High Court or Court of Session to direct a further enquiry. The last of the four sections gives to the High Court exclusively far wider powers in dealing with cases including those in which there has been conviction or acquittal called up by itself or reported for orders under the preceding section. As in examining the record the Court is to have regard as well to the correctness as to the legality of the finding under consideration, it seems clear that in the absence of limiting words in the four succeeding sections, action may be taken under any one of those four sections, on its appearing that the finding on the evidence is erroneous in point of fact. Thus on its appearing that a Magistrate has owing to a misappreciation of the evidence wrongly discharged a person accused of an offence triable by the Court of Session only, the District Magistrate may take action under Section 436, He may order the committal of the accused ' instead of directing a fresh enquiry.' In a similar case it is clear from the terms of this section he may take the alternative course of directing a fresh enquiry. Except for cases mentioned in Clause (6) of Section 436 there is no provision for this fresh enquiry other than that which is found in the next section, There is the change of expression ' further ' being substituted for ' fresh' but otherwise there is no apparent reason why the enquiry, which may be thought requisite for a case coming under Section 436, should differ in its nature from that which may be directed under Section 437 in the case of offences triable by a Magistrate. If it is expedient that the Sessions Judge should have power to re-open the enquiry respecting an offence triable by himself only, it is equally expedient that he should have that power with regard to an offence which may or may not be tried by him. In neither of the cases supposed has there been any final judgment which can be pleaded in bar to fresh proceedings and therefore it is not necessary to set aside the order of discharge.
14. The only argument in favour of a distinction between the enquiry provided for in Section 437 and that mentioned in Section 436 is derived from the change of expression, the epithet ' further' being substituted for 'fresh.' It is said that a further enquiry presupposes additional evidence, whereas a fresh enquiry may mean nothing more than a reconsideration of the original evidence. This construction of Section 437 would practically go far to limit the application of it to cases in which the officer or Court calling for, and examining, the record was set in motion by some party interested in the proceeding and did not act motu suo, for usually the record itself would not disclose the possibility of further evidence being adduced. In all other cases, however gross might be the misappreciation of the evidence although the inferior Magistrate might have failed to draw obvious inferences of fact, the revising officer could do nothing but report the case for orders to the High Court.
15. In my opinion the two epithets may be used indifferently to denote the same sort of enquiry, and it is reasonable to suppose that some more distinctive expression would have been used if it had been intended to limit the scope of Section 437 in the way suggested. We cannot lose sight of the fact that the Legislature, in disregard of the rule which enjoins adherence to the same word unless a change in the sense is intended, frequently change the expression without any intention of changing the meaning, their object as observed by a learned Judge being as would seem ' to improve the graces of style and to avoid using the same words over and over again.' With regard to the authorities on the question, the only one adverse to the view above taken that needs to be considered is Amir Khan's case I.L.R. 8 Mad. 336. In that case Turner, C.J., draws a distinction between the expressions ' further enquiry ' and ' fresh enquiry' and justifies his conclusion by reference to the cases cited by Prinsep under Section 253 of the Criminal Procedure Code, cases decided with reference to the Code of 1872.
16. There is, however, a noticeable difference in the language of the present Code as compared with that of 1872. In Sections 294 and 295 of the latter, there is not, as there is in Section 435 of the present Code, any mention of the correctness of the finding in Section 296, which in a measure corresponds to Section 436 and Section 438 of the present Code, it is only when the judgment or order is contrary to law or the punishment too severe or inadequate that a case may be reported for orders of the High Court. It was only in the case of dismissals of complaints under Section 147 (corresponding to the present Section 203) that power to direct an enquiry or a further enquiry as it is called in the section as amended was given. It was held upon this Code that in cases not coming within Section 296, i.e., cases exclusively triable by a Sessions Court the District Magistrate could not order a fresh enquiry except in cases in which further evidence was forthcoming.
17. Considering the altered language of the present Code, I think that the inference rather is that it was intended to alter the law and give more latitude to the Sessions Court and District Magistrate in dealing with cases of improper discharge of accused persons. I agree that the term 'further enquiry' means 'an enquiry in addition to that which has already been held,' but I do not understand why it should necessarily involve the taking of additional evidence; for an enquiry means more than the taking of evidence. It means also the consideration of the evidence taken. I would adopt what Wilson, J., says with regard to the expression in Hari Dass Sanyal v. Saritulla I.L.R. 15 Cal. 608. As is pointed out in the judgment in Queen-Empress v. Dorabji Hormasji I.L.R. 10 Bom. 131 the Code itself shows that there might be a further enquiry without additional evidence (see Sections 375 and 380).
18. For these reasons I would answer the question referred in the affirmative.