Ghose and Gordon, JJ.
1. the facts, out of which the questions before us have arisen, are shortly these:
A complaint was instituted before the Presidency Magistrate of the Northern Division of the Town of Calcutta against the petitioner for cheating under Section 417 of the Penal Code. The case was transferred for trial to an Honorary Presidency Magistrate, Mr. Farr. After several postponements, the case was taken up on the 19th December last. The complainant, who was then present in Court, stated that his attorney was not there, and that he was not in a position to proceed with the case, and applied for a postponement. The Magistrate adjourned the case for half an hour to enable the complainant to bring his attorney or instruct somebody else. When the case was afterwards called on, an attorney appeared for the complainant, and applied for the transfer of the case to the Northern  Division Magistrate on the ground that the complainant had been informed that the accused was a client of, and personally known to, the Magistrate (Mr. Farr). The Magistrate, for reasons given by him, declined to accede to this request. Thereupon, the attorney again applied for postponement of the case upon the ground that the attorney, who had been duly instructed in the case, could not attend, and that the complainant's witnesses had left Court upon an assurance given by a person, who was managing the case of the accused, that he would agree to the case standing over. This application was opposed by the Counsel for the accused, who represented (and the representation was found to be true) that there were at least two witnesses for the prosecution present in Court. The Magistrate then ordered the case to be proceeded with. The attorney of the complainant stated that he was not acquainted with the facts of the case, and, no evidence being offered for the prosecution, the Magistrate dismissed the summons and discharged the accused.
2. Subsequently, on the 5th January last, the complainant, through another attorney verbally applied to the Magistrate of the Northern Division, apparently upon the same facts and materials that were before Mr. Farr, for the issue of a fresh summons in the same case, putting in simply what is described as a 'charge' under Section 420 in place of Section 417 of the Penal Code. The Magistrate granted this application. Upon a summons being then served on the accused, he appeared and contended that the Magistrate had no authority in law to issue fresh process in the case, he having been once discharged by another competent Magistrate. The Magistrate, however, on the 19th January last, was of a contrary opinion, but he allowed the matter to stand over for a time to enable the accused to move this Court against his order. The accused accordingly applied to us and obtained a rule upon the complainant to shew cause why the said order of the Magistrate granting process against him should not be set aside, upon the ground that he had no jurisdiction to do so.
3. The order of discharge made by Mr. Farr does not, certainly, operate as an acquittal, the case being a warrant case. And it may well be gathered from the terms of Section 403 of the Code of Criminal Procedure that it is no bar to the retrial of any person  so discharged. But then the question is whether the stipendiary Magistrate of the Northern Division had the authority to sit, as it were, on appeal from the order of the Honorary Magistrate, and direct the issue of a process, not with standing that upon consideration of the same materials Mr. Farr, a Magistrate of co---ordinate jurisdiction, held that the summons should be dismissed and the accused discharged.
4. We cannot discover anything in the Code giving a stipendiary Presidency Magistrate or any other magistrate of co---ordinate jurisdiction such an authority. Under Section 439 (read with Section 423), and possibly also under the charter of this Court, it is open to this Court to set aside the order of Mr. Farr and direct a retrial or further inquiry. And that apparently is the only mode indicated in the Code by which in a case like this an order of discharge may be interfered with.
5. A some what similar question arose in a case of dismissal of a complaint under Section 203 before another Divisional Bench of this Court in the case of Nilratan Sen v. Jogesh Chundra Bhuttacharjee I.L.R. 23 Cal. 983; and it was held, among other matters, that the practice of the Courts has always been to debar such fresh proceedings, and Banerjee, J., observed 'that it would be anomalous if, not with standing the dismissal of a complaint, and the discharge of an accused person, after an elaborate inquiry, by one magistrate, another magistrate may, merely upon a fresh complaint being filed, take proceedings against the accused again for the same offence, and on the same evidence, though he has no authority as a Court of Appeal or Revision to examine the correctness of the previous order made in the case.' These remarks well fit in here, though the present case is a warrant case, in which the accused was discharged under Section 253.
6. The view that we have just expressed may at first sight seem some what opposed to that adopted by the Madras High Court in the case of Virankutti v. Chiyamu I.L.R. 7 Mad. 557; but upon examination of the facts of that case, and the true ground upon which the judgment proceeded, it will be found that our view does not at all clash with the decision in that case.
7.  As to the case of Opoorba Kumar Sett v. Probod Koomary Dass 1 Cal. W. N. 49 to which our attention has been drawn, it will be observed that the application to revive the proceedings was presented to, and the order for issue of fresh process made by, the same Magistrate who had discharged the accused.
8. We are not called upon here to determine whether the order of discharge made by Mr. Farr was a proper one. All that we are at present concerned with is, whether the Magistrate of the Northern Division was competent to order the revival of proceedings and issue a fresh process against the accused after the order of discharge by another magistrate of co---ordinate jurisdiction in precisely the same case, as we understand this to be. We are of opinion that he was not so competent.
9. Upon this ground we set aside the order complained against and direc that the rule be made absolute.