CHANDI CHARAN PAUL Vs. STATE
HIGH COURT OF CALCUTTA
Chandi Charan Paul
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Ramendra Nath Dutt, J. -
(1.) The Petitioner is the accused in a case instituted by the opposite party before a Magistrate at Hooghly. He has obtained this Rule for quashing the proceeding against him in the said Court.
(2.) The opposite party filed a complaint against the Petitioner on April 11. 1962, and the Petitioner was summoned under Sec. 409 of the Indian Penal Code. The case dragged on and ultimately it came to Sri S. Bakshi, Magistrate, First Class. He fixed June 5, 1969, for evidence, but on that date the complainant opposite party was absent and the learned Magistrate discharged the Petitioner under Sec. 253(2) of the Code of Criminal Procedure. Subsequently, the opposite party filed a petition before the learned Magistrate for revival of the case, and the learned Magistrate after hearing both sides revived the case and fixed August 27, 1969, for appearance of the Petitioner for trial. The Petitioner thereafter appeared before the learned Magistrate, but subsequently obtained this Rule for quashing.
(3.) Mr. Palit submits that the learned Magistrate was no more in season of the matter having discharged the Petitioner under Sec. 253(2) of the Code and so he was not competent to revive the case. Mr. Roy, who appears for the complainant opposite party, however, submits that since there was no consideration on merits, the learned Magistrate was within his rights to revive the case. The position in law in respect of this matter is now well -settled. If a Magistrate discharges an accused after consideration of the matter on merits, he is no more competent to revive the case and to re -hear the same. But if he has made the order of discharge without consideration of the merits of the matter, he is competent to revive the case and rehear the same. It follows, therefore, that if a Magistrate discharges under Sec. 253(1) of the Code, he cannot revive and, if he discharges under Sec. 253(2) of the Code, he can revive only when the order of discharge is made without consideration on merits either in respect of the facts alleged or in respect of the law involved in the matter. We find that in this case there was an order of discharge without consideration of the merits of the matter either in respect of facts or in respect of law and so the learned Magistrate was competent to revive and re -hear the case.;
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