1. I agree with the views expressed by the learned Chief Justice in Emperor v. Chinna Kaliyappa Gounden 29 M. 126; 16 M.L.J. 79; 3 Cr. L.J. 274; 1 M.L.T 31 and would answer the question referred to us in the affirmative.
2. The facts are clearly set forth in the letter of reference. The question whether an order of discharge is a judgment or not was fully considered in it. Cases cited by the Sessions Judge and the weight of authority supports the view that such an order is not a 'judgment'. Seeing that Section 253, Criminal Procedure Code, does not require a Magistrate to record any reason when discharging an accused unless he does so without taking all the evidence available for the prosecution it is difficult to see how any other decision could be arrived at. The ward 'judgment' is not defined in the Criminal Procedure Code, but it is sufficiently clear from Sections 366 and 367 that it is intended to indicate the final order in a trial terminating in either, the conviction or acquittal of the accused. The principle of autrefois acquit can have no application as there can be no trial when the accused is 'discharged'. A Code must be considered exhaustive on the subject with which it deals, and it is not permissible to add to its provisions. We can gather that the Legislature was not ignorant of the principle of autrefois acquit. It has indicated in the Code the extent to which it intended that that doctrine should be applied in this country. It is not open to us by interpretation to extend its application.
3. When Sections 253 and 437, Criminal Procedure Code, are read together, it is clear that the legislature never intended that a Magistrate discharging an accused should furnish him with a certificate of immunity from further molestation.
4. As observed above, Section 253 does not require the Magistrate to give reasons for his order in ordinary circumstances. Section 437, Criminal Procedure Code makes no reference to an 'order' of discharge and does not suggest the existence of any 'order' that requires to be set aside. On the contrary; it merely gives power to certain Courts to order farther enquiry, and that too, without even giving notice to the persons discharged.
5. A discharge not operating as an acquittal leaves the matter at large for all purposes of judicial enquiry.
6. It is no argument to say that the powers conferred by the Code are too wide, and that Magistrates may abuse them. The framers of the Code were presumably aware of the fact. The powers conferred on Courts of Appeal and Revision provide an adequate remedy for individual indiscretions. The remedy for repeated indiscretions on the part of Magistrates is the provision of better Magistrates by Government, and not the limitation of their powers by judicial interpretation.
7. The question referred to us must be answered in the affirmative, and I would add that, as in the present case the Sessions Judge, after a perusal of the record, has formed the opinion that the Sub-Magistrate's second order (cancelling his order of discharge) is right on the merits, there is no need for us to revise it.