QUEEN-EMPBESS Vs. DOLEGOBIND DASS
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Maclean, C J -
(1.) This in an application by the accused to have the order of commitment of the Chief Presidency Magistrate, Mr. Pearson, discharged, on the ground that he had no jurisdiction to make the commitment, as a previous order of discharge had not been set aside by any competent authority. The facts are as follows On the 23 of July last the accused was arrested on the charge of having stolen a registered letter from the Post Office, and on the 25 July was brought up before a Bench of Presidency Magitrates, charged with offences under Section 381 of the Indian Penal Code and Section 52 of the Indian Post Office Act, 1898. He was discharged on the same day, the Bench considering that the evidence was insufficient to warrant "a conviction," by which I presume they meant a commitment. On the 6th September the accused was re-arrested on substantially the same charge, and on the 17th October he was committed for trial upon further and fresh evidence --a very salient feature in the case--to the present sessions. The point for determination is, whether the commitment is valid, and I shall confine my remarks to the case immediately before me, viz., the case of a commitment by a Presidency Magistrate.
(2.) It is clear that the discharge of the 25 July could in no sense operate as an acquittal of the accused, the case being a warrant-case. This has not been disputed. Consequently, when the case was brought before Mr. Pearson, he was bound to hear it under Section 252 of the Code, unless it can be shown that he had no jurisdiction to hear it until, as is contended, the order of the 25 July had been set aside by the High Court. "There is no express provision in the Code to the effect that the dismissal of a complaint shall be a bar to a fresh complaint being entertained so long as the order of dismissal remains unreversed" see per Banerjee, J., in Nihatan Sen V/s. Jogesh Chundra Bhuttaeharjee (1896) I.L.R. 23 Cal. 988. I agree in that. If, then, there be no express provision in the Code, what is there to warrant us is implying or in effect introducing into the Code a provision of such serious import, a provision which, in certain cases, would render Section 252 of the Code almost nugatory. In the absence of any other provision in the Code to justify such an implication--and my attention has not been directed to any such provision except Secs.436 and 437, which do not apply to Presidency Magistrates--I can appreciate no sound ground for the Court so acting; were it to do so it would go perilously near to legislating, instead of confining itself to construing the Acts of the Legislature.
(3.) Moreover, it seems contradictory to say that, whilst the order of discharge in a case such as the present does not amount to an acquittal, it is yet necessary to have it discharged by the High Court before either the same or another Magistrate of co-ordinate jurisdiction can hear the complaint under Section 252. Neither necessity nor convenience warrants such a conclusion; there is nothing in the Code which compels it: and the balance of the decided cases appears to be against it. The cases of Hari Singh V/s. Dansih Mahomed (1878) 20 W.R.C.R. 46. [decided so far back as 1873], the clear dictum of Markby, J., concurred in by Prinsep, J., in Empress V/s. Donnelly (1877) I.L.R. 2 Cal. p. 411; Queen-Empress V/s. Puran (1886) I.L.R. 9 All. 85 and Virankutti V/s. Chiyamu (1884) I.L.R. 7 Mad. 557 support the view of the Crown. These were not cases relating to Presidency Magistrates, but in the ease of. Opoorba Kumar Sett V/s. Probod Kumary Dassi (1893) 1 C.W.N. 49 the precise point now under discussion was decided by Prinsep and Trevlyan, JJ., and decided against the contention of the present accused.;
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