Decided on November 30,1944



Horwill, J. - (1.) THE appellant brought a case under Sections 379 or 411 of the Indian Penal Code against the respondent and another. The prosecution case was closed on the 30th October, 1941; and on that date the magistrate wrote on the docket of his diary: The second accused is discharged under Section 253(1) of the Code of Criminal Procedure; a charge under Section 379 of the Indian Penal Code is framed against the first accused.... This was signed by the magistrate. He proceeded with the enquiry against "the first accused and eventually, on the 24th January, 1942, committed the first accused to Sessions. The present suit was filed on the 25th January, 1943, which would be the last day of limitation if the accused was discharged on the 24th January, 1942; but would be out of time if the accused was discharged on the 30th October, 1941. The trial Court held that he was discharged on the 30th October, 1941; because the note of the magistrate shows that he was; whereas the appellate Court considered that the matter was covered by' authority and so, purporting to follow Venkatarama Aiyar v. Swami Nayak, (1906) 17 M.L.J. 60 he allowed the appeal and remanded the suit for disposal.
(2.) THE decision in Venkatarama Aiyar v. Swami Nayak, (1906) 17 M.L.J. 60, clearly does not cover the case that is now before me for consideration. That was a case in which the plaintiff was not an accused at all. At the time of discharging some of the accused, the magistrate expressed an opinion that the plaintiff had not participated in the offence. The magistrate, however, gave no reasons until he wrote the judgment some days later. Article 23 of the Limitation Act gives the plaintiff one year from the date " when the plaintiff was acquitted or the prosecution was otherwise terminated." The prosecution could not have terminated on the date when the magistrate merely expressed the opinion that the plaintiff, who was not an accused at all, had not committed the offence. In fact, it is hard to see how Article 23 could be applied to any date in these proceedings. In the present case, however, the plaintiff was an accused; and he was definitely discharged on the 30th October, 1941, by an order signed by the magistrate. Section 253(i),does not require any reasons to be stated by the magistrate for the discharge; so a mere order discharging the accused is a final order, even though no reasons are given. Where the prosecution case is closed and an accused person discharged, he does not appear before the Court again; and in the subsequent proceedings against other accused he is no longer an accused. One would nevertheless expect to find in the introductory paragraphs of the final order 'dealing with' the other accused some mention of those who Jjad been discharged and of the reasons for discharging them. Such an incidental reference to the discharge of some accused is no indication that the discharge takes effect from the date of the final order. It may be pointed out that in the table at the head of the order only one accused person is mentioned, viz -, the first accused. Another case cited by the learned advocate for the respondent which approaches the facts of the present case rather more closely than in Venkatarama Aiyar v. Swami Nayak, (1906) 17 M.L.J. 60, is Shuppu Iyer v. Subramania Patter Kariakar, (1912) M.W.N. 951. It was there said that some days before the judgment was delivered, the magistrate had said that some of the accused would be discharged. There was no written order, however, and there was nothing to show that the accused did not continue to appear before the magistrate until the final order was delivered. The learned Judges said: The Subordinate Judpe has found that the 19th September was the day on which the accused were actually discharged. That is the date of the magistrate's order and the date on which in the table at the head of that order the trial is stated to have been closed. There is nothing in the record of the, enquiry to indicate that the accused were discharged on the 14th although it may be that the magistrate on that day expressed an opinion that the evidence for the prosecution was insufficient to warrant him in putting any of the accused on his trial.
(3.) IT is clear that both the cases relied on by the learned advocate for the respondent can be distinguished from the case before me.;

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