W. Comer Petheram, C.J.
1. Section 435 of the Code of Criminal Procedure gives power of revision, and is in these terms:
The High Court, or any Court of Session, or District Magistrate, or any Sub-divisional Magistrate empowered by the Local Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of such inferior Court.
If any Sub-divisional Magistrate acting under this section considers that any such finding, sentence or order is illegal or improper, or that any such proceedings are irregular, he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate.
Orders made under Sections 143 and 144 and proceedings under Section 176 are not proceedings within the meaning of this section.
2. Section 436 gives power to Courts of Sessions or District Magistrates to order committal where a case is triable exclusively by the Court of Session.
When, on examining the record of any case under Section 435 or otherwise, the Court of Session or District Magistrate considers that such case is triable exclusively by the Court of Session, and that an accused person has been, improperly discharged by the inferior Court, the Court of Session or District Magistrate may cause him to be arrested, and may thereupon, instead, of directing a fresh inquiry, order him to be committed for trial upon the matter of which he has been, in the opinion of the Court of Session or District Magistrate, improperly discharged.
Provided as follows--
(a) that the accused has had an opportunity of showing cause to such Court or Magistrate why the commitment should not be made.
(b) that, if such Court or Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Court or Magistrate may direct the inferior Court to enquire into such offence.
3. Section 437 gives power to order further enquiry when a complaint has been dismissed or discharged:
On examining any record, under Section 435 or otherwise, the High Court or Court of Session may direct the District Magistrate by himself or toy any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any subordinate Magistrate to make, turther enquiry into any complaint which has been dismissed under Section 203, or into the case of any accused person who has been discharged.
4. The section which relates to dismissals is Section 203. This section is in the chapter headed 'Complaints to Magistrates' Under this chapter the Magistrate is to examine the complainant on oath, and, if he thinks fit, to direct an investigation ; and (Section 203) he may, if not satisfied with the statement of the complainant and the result of the investigation, if any, dismiss the complaint without issuing any process.
5. The sections which relate to discharges are Sections 209 and 253. The first is in the chapter headed 'Enquiry into eases triable by the Court of Session or High Court.'
6. Section 208 provides that the Magistrate shall, when the accused is brought before him, hear the complainant and the evidence on both sides, and (Section 209) if he is not satisfied that there are sufficient grounds for committing the accused, discharge him.
7. Section 253 is in the chapter headed 'Trial of Warrant-cases by Magistrates.'
8. Section 252 provides that when the accused is brought before him. the Magistrate shall hear the complainant, and shall hear the evidence for the prosecution and summon witnesses for the prosecution, if necessary, and (Section 253) shall, if he finds that no case has been made out which unrebutted would warrant a conviction, discharge the accused.
9. In cases under Sections 200-203 it would appear that if the Magistrate does not believe the complainant, and thereupon, without taking any further step, dismisses the complaint, the revising officer may, under Section 437, direct that, by way of further enquiry, he shall cause an investigation to be made, or, if one has been made which he considers insufficient or unsatisfactory, or if he considers that the complainant has not been sufficiently examined, may order that the complainant be recalled and his examination be continued. But it is difficult to see how a further enquiry can be ordered in any but one of these three cases, as it is clear that the enquiry is preliminary to the issue of process, and next step to take, if the enquiry as far as the collection of materials complete, is the issue of process In such a case the only Court which could deal with the matter must be the High Court, under Section 439, embodying Sub-section (c) of Section 423.
10. In cases under Sections 206-209 the Magistrate is, in the presence of the accused, to hoar the evidence of the complainant or otherwise produced before him, and must, unless for some good reason he does not think it necessary, issue process and compel the attendance of other witnesses or the production of documents, and if he is not satisfied that there are grounds for putting the accused on his trial, may discharge him at any time. Here if in the opinion of the revising officer the Magistrate has not sufficiently examined the witnesses, or has not summoned witnesses who should have been summoned, or has not compelled the production of documents which were material for the prosecution, no doubt the revising officer may direct a further enquiry either by recalling witnesses who have been examined, or by compelling the attendance of others, or the production of documents, so as to complete the enquiry which must be made before the charge is framed. But if the revising officer is satisfied that all the materials have been collected, I do not see how the revising officer can direct a further enquiry, because he does not agree with the conclusion at which his subordinate has arrived upon those materials. To do so is in effect to direct the Subordinate (Magistrate, against his own view of the case, to frame a charge--a power which is given to the High Court alone under the section above cited.
11. The only other cases are those which arise under Chap. XXI, Sections 251-253. These are cases in which the accused is brought before a Magistrate on a warrant. In these cases the Magistrate is to take all such evidence as is produced before him ; to ascertain if there are other witnesses likely to be acquainted with the facts of the case and able, to give evidence for the prosecution, and to summon such of them as he thinks necessary ; and if, upon hearing the witnesses produced, and, if he thinks it necessary to compel the production of other evidence, after hearing such other evidence, the Magistrate finds that; no case has been made out against the accused which, if unrebutted, would warrant bis-conviction, the Magistrate shall discharge him.
12. Here also it is manifest that the revising officer may, if he thinks fit, direct the subordinate officer to compel the production of further witnesses, and also, as it seems to me, direct him to recall and further examine any witness who has been already examined. But if and when the revising officer is satisfied that all the materials which can be collected have been collected, I do not see how he can direct the Subordinate Magistrate to make further enquiry, the next step being to frame a charge, which is a proceeding subsequent to the completion of the enquiry, the taking of which, as it seems to me, can only be compelled by the High Court.
13. On the whole, then, in nay opinion, the power given by Section 437 to order a further enquiry is confined to cases in which the revising officer is satisfied, for one of the reasons mentioned in Section 435, that the subordinate officer has proceeded on insufficient materials, and that, with a more exhaustive enquiry, further material would be forthcoming.
14. I think notice is not required by the law, but that, except in cases of dismissal under Section 203, notice should be given,
15. The main question which we have to answer on this reference seems to wa to involve three distinct enquiries, which should, I think, be considered separately. And as to each of those three enquiries, the language of the present Code of Criminal Procedure is so entirely different from that used in the earlier Code that the decisions upon that earlier Code afford us no practical assistance. The three questions I propose to consider are:
I. On what grounds is an order of discharge made under Section 209 or Section 253 liable to be sat aside by a Court of Revision ?
II. What Courts have jurisdiction to set it aside ?
III. What orders are proper to be made if an order of discharge is to be set aside ?
16. The series of Sections 435 to 439 must, as more than one learned Judge has pointed out, be read together. Of these, Section 435 is the principal section dealing with the grounds upon which revisional jurisdiction may ordinarily be exercised. It says that--
The High Court, or any Court of Sessions, or District Magistrate, or any Sub-divisional Magistrate empowered by the Local Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its jurisdiction, for the purpose of satisfying itself or himself as to the corret ness, legality, or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court.
17. This I read as an express enactment that every finding, sentence, or order is liable to review, not only on the ground of illegality or irregularity, but also on the ground of incorrectness, that is to say, on the ground that it is wrong on the merits. And an order of discharge is no exception to the general rule. I do not mean to say that an order of discharge may not, under the subsequent sections, be set aside on other grounds, such as the discovery of fresh evidence, but only that it is liable to be so dealt with on any of the grounds here mentioned.
18. The second point for enquiry is, what tribunals have jurisdiction to set aside an order of discharge? This Court has power under Section 439 to deal as a Court of Revision with any finding, sentence, or order which comes under its notice. Sessions Judges and District Magistrates in most cases have not this power ; their course ordinarily is to refer the matter to this Court if they think there is ground for doing so. But in particular instances they themselves exercise revisional powers. And with regard to orders of discharge it is expressly enacted that they may do so, though to what extent and in what form is of course another question. Section 436 says that--
When on examining the record of any case under Section 435 or otherwise, the Court of Session or District Magistrate considers that; such case is triable exclusively by the Court of Session, and that an accused person has been improperly discharged by the inferior Court, the Courts of Session or District Magistrate may cause him to be arrested and may thereupon, instead of directing a fresh enquiry, order him to be committed for trial.
19. The words here used 'instead of directing a fresh epquiry' must, I think, refer to the power given by the next section of ordering a 'further enquiry,' for, except in a single case spoken of in proviso (b), there is no other section giving power to order any enquiry at all. 'The next section, Section 437, says:
On examining any record under Section 435 or otherwise the High Court or Court; of Session may direct the District Magistrate by himself or by any of the Magistrates subordinate to him, to make, and the District Magistrate may himself make, or direct any Subordinate Magistrate to make, further enquiry into any complaint which has been dismissed under Section 203, or into the case of any accused person who has been discharged.
20. With regard to these sections, I think it clear, first, from the express, reference to Section 435, that the Courts mentioned have power to interfere with an order of discharge on any of the grounds mentioned in Section 435, on the ground that it is incorrect, that is, wrong on the merits, no less than 011 the ground of illegality or irregularity. I think it clear, secondly, that the words 'fresh enquiry' in Section 436 and 'further enquiry' in Section 437 are used as meaning the same thing. Thirdly, though I am inclined to agree with the contention urged before us that the mention of the High Court in Section 437 was not strictly necessary, and that, if it had not been mentioned, it would have had, under Sections 435 and 439, the same powers which are here expressly given to it, still I think the mention of the three tribunals together, the High Court, the Court of Session, and the District Magistrate, tends to show that the Legislature intended them to have the same power with regard to the matter dealt with is the section.
21. The examination of the sections so far satisfies my mind that the High Court, the Court of Session, and the District Magistrate all have power, as Courts of Revision, to deal with an order of discharge, and to deal with it on the merits as well as on other grounds.
22. The third question is, what orders these Courts can make when the necessity arises for setting aside an order of discharge. The High Court, under Section 423, embodied in Section 439, can set aside the order of discharge, and direct a charge to be framed and tried by the proper Court. It can, under Section 437 and probably also under Section 439, order a further enquiry instead of a committal. The Court of Session and the District Magistrate have, in cases triable exclusively by the Court of Sessions, the same alternative open to them under Sections 436 and 437. In other cases they can set aside the discharge and order a further enquiry under Section 437, or refer the matter to this Court.
23. The meaning of 'further enquiry' has still to be considered. The word 'enquiry' is one of frequent occurrence in the Code. The definition in the interpretation Clause is very wide, and in some sections of the Act it certainly includes trial. If that meaning were adopted here, it might he that Section 437 would authorise a Sessions Judge or District Magistrate, not only to order further enquiry preliminary to trial, but also to order a charge to be framed and the trial of that charge to proceed. The word is often, however, used in a more specific sense, to denote the enquiry before a Magistrate preliminary to trial, which regularly results in a charge or a discharge. I am not prepared to adopt any but the narrower sense in the present section. My reasons are that, the order to be set aside being an order of discharge, the further enquiry would naturally be one of the same kind as that which has miscarried, an enquiry leading up to a charge or discharge. And upon the other view, Section 436, relating to. committal in cases triable only by the Sessions Court, would seem to ho superfluous. For if 'further enauiry' would cover a charge and a trial in the one case, it would equally do so in a case of the other class. But in Section 436 committal and further enquiry are spoken of as distinct alternatives. Taking, however, this narrower sense, I think the enquiry includes not merely the taking of evidence, but the consideration of that evidence and the conclusion to charge or discharge the accused.
24. I think unnecessary to consider what 'further' enquiry would mean if the words were not explained by the context. Those words might mean an additional enquiry supplemental to the first, they might cover not only this, hut also, a new enquiry superseding the first. Here I think they are used in the wider sense, first, be cause the further enquiry may be ordered on the ground that the first finding was incorrect ; secondly, because it may be by a different Magistrate from the first; thirdly, because the words 'further enquiry' and 'fresh enquiry' are used as meaning the same thing.
25. The result is that in my opinion this Court or the Court of Sessions or the District Magistrate has jurisdiction on any sufficient ground to set aside an order of discharge, . and direct either an additional investigation of the facts, or a reconsideration of the evidence, by the Magistrate whose order is set aside, or a new enquiry before another Magistrate and among such sufficient grounds are the omission to take evidence which ought to have been taken, the discovery of fresh evidence, mistakes of law, illegality or irregularity in the proceedings, and the in-correctness of the first finding. I agree with the view taken in the Bombay High Court in Queen-Empress v. Dorabji Hormasji 10 B. 131, and to a great extent with that taken by the Full Bench of the Allahabad Court in Queen-Empress v. Chotu 9 A. 52.
26. But Although the jurisdiction of this Court and of the Court of Session and of the District Magistrate is upon this view a very wide one, the discretion thus conferred is a judicial discretion. No Court can properly set aside an order of discharge without having and assigning solid and sufficient reasons for doing so. And if there is reason to set aside an order of discharge, it is the duty of the Court which has to deal with the matter in each case to make such order as is appropriate to the facts of the case. In a case triable only by the Sessions Court, to which Section 436 applies, if the Sessions Judge or the District Magistrate is satisfied that on the evidence taken there is a clear case for a committal, and there is no reason for desiring a further consideration by a Magistrate, I think it would ordinarily be his duty to direct a committal under Section 436, and not to order a further enquiry under Section 437. In the same way, in a case not triable only by the Court of Sessions, if the Sessions Judge or the District Magistrate is satisfied that on the evidence taken there is a clear case for charging and trying the accused, and there is no reason for desiring further magisterial examination, I think it is ordinarily his duty to refer the case to this Court, which can make a suitable order, and not to direct a further enquiry by a Magistrate.
27. Any order, moreover, of a Sessions Judge or District Magistrate setting aside an order of discharge is of course liable to be reviewed, in its turn, by this Court as a Court of Revision. And in my opinion, it in any case this Court were to find that the lower Court had set aside an order of discharge on insufficient grounds, or that, while there was good ground for setting it aside, the lower Court had made an order inappriate to the facts of the case, it would be right in reversing the order.
28. The result is that I should answer the first question referred to us in the affirmative.
29. As to the second question, I should say that, if it is to be understood as a mere question of law going to jurisdiction, it must be answered in the affirmative; but that if the question is whether in each ease there are good grounds on which the order of the Court below can be supported, we have not sufficient materials in the order of reference to enable us to answer the question.
30. As to the third question, I agree with Prinsbp, J.
31. The cases must, therefore, in my opinion, go back to the referring bench to be dealt with on the whole of the materials before.
32. I have had the advantage of seeing the judgments which the Chief Justice and Mr. Justice Wilson propose to deliver. So far as it goes, I agree with the opinion expressed by Wilson, J., as to the enlarged interpretation which is put on Section 437 ; but after very careful consideration, I am of opinion that the terms of that section should bear a still larger interpretation, and that it is competent to the High Court. Court of Session, or District Magistrate to set aside an order of discharge passed against the weight of evidence, and to order a further enquiry, within which I would include the framing of a charge, and thus to enable the accused to cross-examine the witnesses for the prosecution.
33. The term 'enquiry' as defined in Section 4(c) includes every enquiry conducted under the Code by a Magistrate or Court. The term is evidently used in contradistinction to 'investigation,' which it follows, and which may be described as including all proceedings conducted by the Police or any other person not a Magistrate, but authorized by Magistrate in that behalf.
34. In my view an enquiry is not concluded by proceedings taken by a Magistrate up to the time that either a charge must be drawn or the accused should be discharged. If the offence be one exclusively triable by a Court of Session, the drawing up of a charge does not necessarily amount to a commitment, for Sections 211-213 show that other proceedings may intervene. If the offence be a warrant easa in which the Magistrate has jurisdiction, but which he may nevertheless commit, the drawing up of a charge in the latter case has the result just mentioned, and in the former enables the Magistrate to complete the evidence by requiring the accused to rebut the prima facie case made out by cross-examining the witnesses for the prosecution or otherwise. An enquiry, as defined, seems to me to include a trial. It is not limited, as under the former Code, to the drawing up of a charge which, it was then expressly declared, was the commencement of a trial. I would also refer to Section 436 and esoecially to proviso (b). That section enables the Court of Session and District Magistrate to order a person improperly discharged of an offence exclusively triable by such Court to be arrested and forthwith to be committed for trial ; but proviso (b) also provides that if the Court of Session or District Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Court or Magistrate may direct the inferior Court to enquire into such offence. .What would be the nature of such enquiry Prima facie a particular offence has been established. The enquiry would therefore be to ascortain how a charge of such an offence could be rebutted, to use the terms of Sections 209, 253, The rebuttal would, be by requiring the accused to make his defence or displace the primi facie case by cross-examination of the witnesses after a charge, drawing his attention to the particular offence, has been framed.
35. So far, therefore, I regret to be obliged to disagree from my learned colleagues in the definition of 'fresh enquiry,' or 'further enquiry' as used in Sections 436 and 437, though I agree with Wilsom, J., that these terms are synonymous
36. I am doubtful whether the power to order a further enquiry otherwise than under Section 437 is given to the High Court under Section 439.
37. I would further observe that it seems contrary to the system prescribed by the Code that in every warrant case, e g., a case of petty theft, tried by a inexperienced Magistrate (it may be the first case he has ever (sic)) should, of necessity, be referred for the orders of the High Court that justice may be done, because a perverse or ignorant finding on the evidence has been come to. Such a Magistrate cannot pass any sentence which is not subject to appeal to the District Magistrate ; every Magistrate in the district is subordinate to the District Magistrate ; and yet it is sought to make such an order of discharge of the same force as an order of acquittal: to declare that it can be set aside only by the High Court. It is needless to point out that in many cases this must operate as a denial of justice, for complainants will, very rarely, consent to the delay and expense of setting the High Court in motion to obtain redress. It is difficult to understand for what reason the Legislature should have conferred power in respect to cases exclusively triable by the Court of Session on certain local Courts, and yet have refused them similar powers in respect of cases of a less important character.
38. With respect to the third question submitted to us, I am of opinion that, under the law, no notice to the accused is necessary before an order under Section 437 may be passed. A notice certainly would not be necessary before an order to set aside an order of dismissal under Section 203 could be passed, since that order was not passed with a notice to the accused person or in his presence, and therefore is probably unknown to him. An order of discharge, which is coupled in this section with an order of dismissal, no doubt rests on a different footing, but still it is dealt with in the same terms. It may also be remarked that the new Section 436 expressly provides for notice to an accused before an order for his commitment can be made for an offence triable exclusively by a Court of Session, and it would be difficult to assign any reason for any distinction between such a case and an order of discharge in a less heinous case in which the same order was passed. But it may also be noted that, as in the section preceding Section 437, so in a section following it (Section 439), provision is made for a notice before any order prejudicial to an accused person may be passed by the High Court as a Court of Revision. We have therefore the law expressly requiring notice to be given in two matters coming up in revision, while in another and cognate matter the law is silent. It is, no doubt, an ordinary rule of our Courts that no order shall be passed to anan's prejudice without due notice to him, and as a principle the necessity is obvious. Still I find myself unable to say that, as the law stands, the fact that a man has not been served with a notice necessarily effects the legality of an order under Section 437. Section 440 makes it optional with any Court when exercising its powers of revision, (e.g., under Section 437) to hear any party either personally or by pleader, and this again seems to favour the view that the Legislature did not intend that a notice should be indispensable. At the name time, I am of opinion that no Court would be exercising a proper discretion in such a matter if, before proceeding under Section 437 to order a further enquiry in a case in which the accused person may have been discharged, it did not first give him an opportunity, by service of a notice, to show cause against such an order being made. If such a matter were to come before me as a Court of Revision, I would certainly feel bound either to direct the lower Court to reconsider the matter or to hear the accused myself.
39. I agree generally with the judgment that has been delivered by the Chief Justice. I desire, however, to make one or two observations upon the principal question before us, vis., what is the meaning of the words 'further enquiry' as used in Section 437 of the Criminal Procedure Code
40. It is said that these words mean the same thing as the expression 'fresh enquiry,' which occurs in Section 436. But it seems to me somewhat improbable that, if the Legislature intended to convey the game sense, they should have used two different expressions in two sections which immediately follow each other.
41. It appears to me that in a case which is triable exclusively by the Sessions Court, and where the Sessions Judge is of opinion that the accused has been improperly discharged by an inferior Court, he may, under Section 436, either direct a 'fresh enquiry,' or order that the man be committed for trial. In the former case, the inferior Court will be bound to hold a fresh preliminary enquiry, and it is in this sense. I am inclined to think that the words 'fresh enquiry' have teen used ; while in the other case no such enquiry would be necessary.
42. In cases not covered by Section 436 the High Court, or the Sessions Judge, or the District Magistrate, may direct 'further enquiry,' into any complaint which has been improperly dismissed, or where an accused has been improperly discharged.
43. I think that in using the expression 'further enquiry,' the Legislature meant it in the sense of an enquiry which has not already taken place, that is to say, an additional enquiry. The learned Chief Justice has pointed out instances where such a 'further enquiry' may be directed. Those instances, I believe are not exhaustive, but illustrative; for there may be, I think, other cases where 'further enquiry' may well be directed. For instance, in a case where a Magistrate, after recording the whole of the evidence, considers that the facts, even if true, do not constitute an offence, the Revisional Court may direct, if it be of opinion that the Magistrate is wrong in law, 'further enquiry,' that is to say, a consideration of the evidence with a view to determine whether an offence has been established or not.
44. But where the inferior Court has taken the whole of the evidence and pronounced a judicial opinion upon it--that is to say, where a full enquiry has been made--I fail to see what the 'further enquiry' would be, unless it be simply a reconsideration of the evidence which has already been considered. This I do not think was ever the intention of the Legislature.
45. In cases where the Sessions Judge or Magistrate thinks that there has bean a miscarriage of justice, but where no 'further enquiry,' can properly be directed, the only course, I think, is to refer the matter to the High Court under Section 438 of the Code ; and the High Court may upon such reference make the right order in the case.