Debabrata Mookerjee, J.
1. This is a Rule calling upon the District Magistrate of Midnapur and the opposite party to show cause why certain proceedings pending against the petitioners under Sections 147 & 379 of the Indian Penal Code' should not be quashed or why such other or further orders should not be made as, to this Court might seem fit and proper.
2. A petition of complaint was filed on the 16th December, 1954, in respect of an occurrence which had taken place on the 13th of that month, in the Court of the Sub-Divisional Magistrate of Midnapur. On receipt of the complaint, the learned Magistrate did not take cognisance of the offence disclosed, but directed the police to do so under the provisions of Section 156(3) of the Code of Criminal Procedure. The police thereafter took cognisance and held an investigation which resulted in a final report. Directly after the submission of the final report, the complainant submitted a Naraji petition, and the learned Magistrate, without examining the complainant on the Naraji, directed a judicial enquiry to be held into the complaint. Some evidence was taken at that enquiry, and eventually the present petitioners, who were the persons complained against, were summoned and placed on trial. The trying Magistrate discovered that there had been a defect in the proceedings which resulted in the summons on the petitioners and 'discharged' them under Section 253 (2) of the Code of Criminal Procedure. This order of discharge was made on the 9th August, 1956.
3. The learned Magistrate who made the order of discharge made it clear that the judicial enquiry had been directed into the complainant's Naraji without previously examining the complainant on the Naraji. In this view, he held that the proceedings had no foundation in law, and without referring to the merits of the matter, he made the order of discharge.
4. It appears that on the 28th August, 1956, a fresh complaint was filed before the Sub-Divisional Magistrate, and the subject-matter of the complaint was identical with that of the previous one and it related to the identical incident. This time the learned Magistrate examined the complainant on oath in accordance with law, and thereafter he directed the issue of process for the appearance of the petitioners. In obedience to the process issued the petitioners appeared in the Court of the Magistrate and thereafter applied to this Court and obtained the present Rule.
5. The main ground of contention before me is that the present proceedings are unsustainable in view of the fact that the identical complaint had been disposed of by the order of discharge made by the previous Magistrate on the 9th August, 1956. It is argued that this order of discharge was not set aside in accordance with the procedure prescribed by law and the present complaint is described as a subterfuge by means of which the previous complaint is sought to be revived. I do not think this contention can prevail.
6. Strictly speaking the order was not an order of discharge under Section 253 of the Code. In a warrant case discharge is provided for by Section 253 of the Code. Sub-section (1) of that section says that if, after taking all the evidence referred to in Section 252 and making such examination of the accused as the Magistrate thinks necessary to make, it is found that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate in such case shall discharge the accused. Sub-section (2) provides that nothing in this section will be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if for reasons to be recorded by him, he considers the charge to he groundless. An order under Section 253 appears to involve consideration of the merits of the case, and the Magistrate is given the power to discharge an accused person, if after hearing some evidence, it appears that the charge brought against the accused is groundless. In a case where an order of discharge has been made under Section 253, -- in other words, where an order of discharge is based on a consideration of the merits of the matter,--it would indeed be right and proper not to allow that order to be disturbed, except in the way recognised by the Code of Criminal Procedure.
7. Section 435 of the Code of Criminal Procedure distinctly provides for the superior Court ordering a further enquiry into a complaint which has been dismissed under Section 203 or into the case of any person accused of an offence who has been discharged. It must be said that in a case of discharge properly so-called under Section 253, the complainant; cannot be allowed, to re-agitate the matter before the Magistrate who made the order of discharge. That order of discharge must be held to be final as far as the Magistrate is concerned and can be set aside only in accordance with the provisions of Section 436 of the Code of Criminal Procedure.
8. In the present case, however, there was no order of discharge on the merits. As soon as the Magistrate (discovered that the proceedings had no foundation in ]aw he made the order 'discharging' the petitioners from the proceedings on the ground that they had no legal basis. This order did not in any way involve consideration of the merits of the case. When the Nara, ji petition was filed, it was clearly the duty of the Magistrate to treat it as a complaint, and to proceed straightway to the examination of the complainant under Section 200 of the Code of Criminal Procedure. Instead of doing that, the learned Magistrate directed a judicial enquiry to be held. At this enquiry some evidence was taken, and a report followed on receipt of which the Magistrate directed the issue of process against the petitioners. Clearly this involved infringement of the mandatory provisions of the law inasmuch as the Magistrate had failed to examine the complainant on oath in accordance with the provisions of Section 200 of the Code of Criminal Procedure. This position was realised by the previous Magistrate who dealt with this matter and he accordingly 'discharged' the accused from the proceedings obviously on the ground that they had no 'legal origin. I do not think that the Magistrate acted improperly in making the order of discharge in this case, although technically it could not be said to be an order under Section 253 of the Code of Criminal Procedure.
9. It is next argued that the new complaint is nothing but the old one, & the projected trial is barred by reason of the order of discharge made by the Magistrate. I cannot at all agree with this contention. There was no trial on the merits, and no circumstances exist which would preclude the filing of a fresh complaint. The provisions which bar a trial are to be found in Section 403 of the Code of Criminal Procedure which is a complete Code on the subject. That section provides that when a person has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence he shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence. The section presupposes a trial to a close by a Court of competent jurisdiction. It also presupposes a conviction or acquittal which remains in force. Applying these tests, it cannot be said that there has been a previous trial for the same offence, and there is no question of there having been a previous conviction or a previous acquittal. In these circumstances, I do not think there is any reason why the present trial of the petitioners should be held to be barred under the law.
10. In the result, this Rule is discharged.The trying Magistrate is directed to deal with theproceedings as expeditiously as possible.