1. In my opinion this case is virtually governed by the Full Bench decision to which reference has been make, viz., the case of Dwarka Nath Mondal v. Beni Madhab Banerjee (1901) I. L. R. 28 Calc. 652. The only distinction between that case and the present is whether, as the case before us deals with that of a Mofussil and not of a Presidency Magistrate, Section 437 of the Code makes any difference. That section, it will be remembered, does not touch Presidency Magistrates. I expressed in my judgment in the above Full Bench case a doubt as to whether there is any such difference, and after having had the advantage of Clearing the case argued by the learned vakils, who have appeared, I do not think that Section 437, which is an enabling section, by implication, takes, away the jurisdiction which, I think, is vested in the Magistrate in a case of this class to hear the complaint again. That to my mind disposes of the point referred.
2. But there is one point to which I should like to make a brief reference. It will be noticed that in my judgment in the Full Bench case, I confined myself to adopting what I had previously said in the casein the Sessions Court here--Queen-Empress v. Bole-gobind Dass (1900) I. L. R. 28 Calc, 211. In that case it was not argued before me that the decision of the Magistrate amounted to a 'judgment' within the meaning of the Code, and I consequently, in that case, said nothing upon that point. In the above Full Bench case it was contended that it is a 'judgment' within the meaning of Section 369. I only desire to add, with all respect to those who cake a contrary view, that I do not think it is. That point has not been suggested in the case now before us: in fact the learned vakil, who obtained the Rule and appeared in support of it, did not contend that in this case the order of discharge constituted a judgment within the meaning of the Code. I, therefore, think that the question submitted to us should be answered in the affirmative, namely, that the Magistrate in a warrant case having passed an order of discharge is competent to take fresh proceedings and issue process against the accused in respect of the same offence without an order for further inquiry under Section 437 of the Code of Criminal Procedure.
3. I am of the same opinion. I have already expressed myself fully on the point raised before us now in respect of the proceedings before a Magistrate outside of Calcutta in the case heard by the Full Bench which related to the proceedings before a Presidency Magistrate. I can see no distinction between these two different classes of Magistrates in respect of the nature of the order passed and their jurisdiction in acting on '. further complaint.
4. On the other point I need say no more, as I have already expressed my opinion that an order of discharge is not a judgment within the meaning of that expression in Chapter XXVI of the Code of Criminal Procedure.
5. So far as the question referred to the Full Bench is concerned, I should answer it in the negative; and in doing so I need only refer to my observations in the case of Dwarka Nath Mondul v. Beni Madhab Banerjee (1901) I. L. R. 28 Calc. 652. Though, no doubt, the order of discharge made in that case was by a Presidency Magistrate, yet in dealing with the question then raised, I had to consider the various sections of the Code, including Section 437, which relate to a similar order made by a Provincial Magistrate; and I do not think I can usefully add anything to what I then said, upon the present occasion. I would, however, refer to the observations of Mr. Justice Banerjee in the case referred to in the referring order as very pertinent upon the questions now before us. He says: 'When the Code therefore distinctly lays down a procedure for having an order dismissing a complaint under Section 203, or discharging an accused person set aside and a further inquiry directed, it seems to me reasonable to conclude that the Legislature intends that an order of dismissal of a complaint or discharge of an accused person should be interfered with only in the manner provided.' Mr. Justice Banerjee had in view the provisions of Section 437 of the Code, and I think that the existence of that section in the present Code sufficiently indicates what the Legislature had in view in this connection. Section 403 of the Code in the explanation attached to it says: 'The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused, or any entry made upon a charge under Section 273 is not an acquittal of the purposes of this section.' No doubt read by itself it might be, his it has been said, that an order of discharge is no bar to a fresh inquiry or trial by a Magistrate either upon the same facts or upon additional facts; but if we compare the language of this explanation with the provisions of Section 215, explanation 2 of the old Code, Act X of 1872, it will be seen hat, while the Legislature had laid down in the old Code that 'a discharge is not equivalent to an acquittal and does not bar the revival of a prosecution for the same offence,' they have omitted in the new Code' the last few words of the said explanation 2, viz., 'dose not bar the revival of a prosecution for the same offence.' This fact, coupled with the provisions of Sections 435 to 439 of the Code, indicates to my mind that they intended that an order of discharge, when once made by a Magistrate, can only be altered, and the prosecution revived, by an order of a Superior Court. As I have already said, I discussed the matter fully in my judgment in the case of Dwarka Nath Mondul v. Beni Madhab Banerjee (1901) I. L. R. 28 Calc. 652, and it is not necessary that I should go over the same grounds again. I feel, however, bound to say, at the same time, that the order of discharge made by the Magistrate in the present case does not amount to a judgment within the meaning of Section 369 or 367 of the Code of Criminal Procedure. There was no judicial investigation by the Magistrate of the merits of the complaint, and therefore, as explained in my judgment in the case of Dwarka Nath Mondulv. Beni Madhab Banerjee (1), the order of discharge would be no bar to the revival of the sama complaint.
Hill J. I agree in the answer to this reference proposed by my Lord, and for the reasons generally which he has mentioned. But I wish to add that I feel some difficulty as to the materiality of the question whether an order of discharge is or is not a judgment in the sense of Section 369 of the Code, for even assuming it to be a judgment in that sense, it could not, I think, be set up as a bar to a rehearing under the provisions of Section 403.
Henderson J. In the case of Dwarka Nath Mondul v. Beni Madhab Banerjee (1901) I. L. R. 28 Calc. 652, a Full Bench of this Court has held that a Presidency Magistrate is competent to rehear a warrant case, in which the accused has been discharged. In the case now before us the question is wider. It is whether any Magistrate, whether Presidency or Provincial, in a warrant case, having J passed an order of discharge, is competent to take fresh proceedings and issue process against the accused in respect of the same offence unless an order for further inquiry shall have been passed und Section 437 of the Code of Criminal Procedure.
Upon principle I am unable to distinguish between the case of a Provincial Magistrate and that of a Presidency Magistrate. There is no provision in the Code which specifically makes any difference between the position of these two classes of Magistrates in this connection. If, therefore, we must take it on the strength of the Full Bench case to which I have referred, that a Presidency Magistrate is competent to rehear a warrant case in which an order discharging the accused still subsists, it seems to me to follow that a Provincial Magistrate must have the same power. The only possible difference in the law relating to matters of discharge in the Code of Criminal Procedure is that made by Section 437. That section, which has no application to Presidency Magistrates, enables the High Court to direct the District Magistrate by himself or by any Magistrate subordinate to him to make a further inquiry into the case of any accused person, who has been discharged by a Provincial Magistrate, and in effect to set aside the order of discharge. I am unable, however, to see how the insertion of this Section, 437, in the Code should take away any powers which a Provincial Magistrate might have had if that section had not been inserted. In this view I would answer the question in the affirmative.