1. The petitioner seeks to revise the order of the District Judge, Salem, complaining against him under Section 476, Criminal Procedure Code, for offences under Sections 467 and 471, Indian Penal Code.
2. On 15th November 1929, a private party applied to the District Munsif, Salem, praying that he would lodge a complaint under Section 476. This was dismissed on 27th February, 1930 and there has been no appeal.
3. Then on the same day 27th February, 1930, another petition was put in, and ultimately dismissed. On appeal from that dismissal the District Judge, Salem, has complained under Section 476.
4. The question is whether the petition of 27th February and the consequent appeal were competent after the petition, of November was dismissed.
5. This opens up a field which is occupied by two schools of thought. There are those who hold that apart from his statutory powers and limitations a Magistrate is circumscribed by the maxim 'nemo bis vexari' and he cannot expose an accused person to jeopardy twice : and those who hold that if not expressly forbidden a Magistrate can act within the powers given by Statute, as often as he likes irrespective of his previous action. The two views are fully expressed in Emperor v. Chinna Kaliappa Goundan 29 M.126 : 16 M.L.J.79 : (F. B.), when the latter view prevailed by a bare majority of 3 to 2. Since then it has always been the law in this presidency at least that a Magistrate can dismiss a complaint under Section 203, and re-hear it on the following day. It would seem to follow that he is equally competent to dismiss fan application to complain and to re-entertain it.
6. As the Chief Justice points out on page 133 of Emperor v. Chinna Kaliappa Goundan 29 M. 126 : 16 M.L.J.79 : (F. B.), if a discharge does not operate so as to prevent a revival, a fortiori the dismissal of a complaint will not. Subramania Aiyar, J., argues that it is unjust that a discharged man should be again put upon his trial, which may be unexceptionable as an abstract principle of law (page 137*), but the Code allows it, and a Bench of this Court in Emperor v. Maheswara Kondaya 31 M. 543., clearly lays down that a Magistrate may himself re-open a prosecution although he has discharged the accused. It is argued that when the Code expressly provides an appeal, it cannot be assumed that the Magistrate can proceed in contravention of his previous order. The same argument is not inapplicable to discharges on complaints. Why should Section 436, provide special machinery by way of revision, if the Magistrate can himself override his order? The answer would seem to be that the Magistrate is left free to change his mind, and at the same time the party, if the Magistrate will not change his mind, may have recourse to superior authority.
7. Limitation will run from the order on the second application : and it cannot be said that the appeal to the District Judge was time-barred. There is no need, therefore, to discuss the applicability of Section 5 of the Indian limitation Act as though the appeal were against the first order of dismissal.
8. That applications under Section 476 can be re-heard in spite of previous dismissal has been held in Harekrishna Parida v. Emperor. 120 Ind. Cas. 629 : 8 Pat. 736 : A. I. R. 1929 Pat. 242 : Ind. Rul. (1930) Pat. 53 : 31 Cr.L.J.143 : 11 P.L.T.75.
9. The petition is accordingly dismissed as regards 1st petitioner. As regards the abettor, 2nd petitioner, the petition is allowed. Vide judgment in Sengowda Goundan v. Vayyapuri Goundan 136Ind. Cas.48 : 61 M.L.J.684 : (1931) M.W.N.1047 : A.I.R.1932 Mad.129 : 33 Cr.L.J.318 (1) : Ind. Rul. (1932) Mad 256...(1932) Mad 256.(1)(2)