Caspersz and Sharfuddin, JJ.
1. When this Rule was heard on the 16th June last, we delivered judgment discharging the same, but on the same day, the case of Mir Ahwad Hossein v. Mahomed Askari (1902) I.L.R. 29 Calc. 726 was brought to our notice, and it subsequently appeared that we were under a misapprehension on the facts of the case. As we had not signed our judgment, we thought it proper to hear both the learned vakils again to-day.
2. It has been contended by the learned vakil for the opposite party that we cannot, having once delivered our judgment, review the same. We entertain no doubt that it is competent to us to do so. The terms of Section 369 of the Criminal Procedure Code are general, and we have not signed our judgment. The,, same view may reasonably be inferred from the case of In the matter of the petition of Gibbons (1886) I.L.R. 14 Calc. 42 and a very extreme case is that of Queen-Empress v. Lalit Tiwari (1899) I.L.R. 21 All. 177, where it was held that a judgment or order of the High Court is not complete until it is sealed in accordance with the Rules of the Court, and up to that time may be altered by the Judge or Judges concerned therewith without any formal procedure by way of review of judgment being taken.
3. Our attention was called to a case of the Bombay High Court, Queen-Empress v. Fox (1885) I.L.R. 10 Bom. 176. If that case is an authority for the proposition advanced, we must respectfully decline to follow it. We, therefore, proceed to consider this, Rule on the merits.
4. We are invited in this Rule to set aside an order of the Deputy Magistrate discharging the accused, under Section 253 of the Criminal Procedure Code, on the 10th January, 1911. The petitioner charged the accused with an offence under Section 417 of the Indian Penal Code, but the accused was discharged on the 22nd August, 1910, by the Deputy Magistrate. The petitioner, however, obtained an order reviving her case from that Magistrate, and it was sent for disposal by the Bench of Honorary Magistrates at Baraset. The Magistrates thereupon examined three witnesses. On the 9th January, 1911, the Deputy Magistrate withdrew the case to his own file, and, next day, passed the following order: 'The complainant present. No evidence is produced. Accused discharged under Section 253 of the Criminal Procedure Code under Section 417 of the Indian Penal Code.'
5. It is this second order of discharge that we are asked to set aside on the ground that the Deputy Magistrate ought to have considered ,the evidence already on the record and to have held that the same established a prima facie case against the accused.
6. It is clear on the authority of the Full Bench in Mir Ahwad Hossein v. Mahoined Askari (1902) I.L.R. 29 Calc. 726, that it was competent to the Deputy Magistrate to revive the case on application made to him. The case was regularly inquired into by the Baraset Bench. The only defect in the procedure is that the Deputy Magistrate has not said a single word in his order of the 10th January last to show that he had considered the evidence in any way. What the petitioner now seeks is that the evidence should be considered.
7. We do not desire to fetter the discretion of the Deputy Magistrate in any way, but we suggest that he do fix a date and call upon both parties to appear on that day. Then, arguments should be heard with reference to the evidence already on the record. If, in the opinion of the Deputy Magistrate, the case should not be gone into any further, it will be competent to him to pass an order of discharge under Section 253 of the Criminal Procedure Code, which, in that event, will be a perfectly legal order to pass. The Rule is made absolute.