- (1.) This is a reference by the learned Sessions Judge of Meerut under Section 438, Criminal P.C., and arises under the following circumstances: On 16th September 1932, one Sheri filed a complaint in the Court of a Sub-Divisional Magistrate of Meerut against Puran Mai and Batna Nand patwaris under Section 218, Penal Code. This complaint was transferred to the Court of Lt. Budh Prakash, Special Magistrate. The Special Magistrate dismissed the complaint and discharged the accused, About two weeks after the dismissal of the complaint and the discharge order, Sheri filed another complaint on the same facts in the Court of the Sub-Divisional Magistrate. This complaint was transferred to the Court of Meharban Ali, Special Magistrate, for trial. Rama Nand then filed an application in revision in the Court of the Sessions Judge challenging the competency of Section Meharban Ali to take cognizance of and to try the second complaint filed by Sheri, It was contended on behalf of Rama Nand in the Court of the Sessions Judge that as the previous complaint that was based on the very facts that formed the basis of the second complaint had been dismissed and he was discharged, the second complaint was not entertainable by another Magistrate. In support of this contention reliance was placed on behalf of Rama Nand on the decision of this Court in Nanda v. Emperor, . It was held in that case that when one Magistrate had discharged an accused person, another Magistrate of a different Court cannot entertain a fresh complaint on the same facts for the same offence. This decision, as observed by the learned Judge fully supports the contention advanced on behalf of Ramanand. On the other hand on behalf of the complainant reliance was placed on the decision in Puran v. Emperor , and there is no doubt that there is conflict between the two decisions noted above. In view of this conflict the learned Judge has reported the matter to this Court for orders.
(2.) There is no provision in the Code of Criminal Procedure attaching finality to an order of discharge analogous to the provisions of S, 403 of the Code which bars the trial of a person for the same offence of which he has been convicted or acquitted so long as the order of conviction or acquittal remains in force. It is clear therefore that an order of discharge cannot be a bar to the trial of the person discharged for the same offence of which he was discharged, but it is also equally clear that it would be highly inconvenient to allow successive trials of complaints based on same allegations by different Magistrates and different Courts, after a previous complaint on the same facts by the same complainant and against the same accused has been dismissed by a Magistrate of competent jurisdiction. A subsequent complaint can be filed either (1) before the same Court presided over by the same Magistrate who had dismissed the former complaint, or (2) before the same Court presided over by the succe3sor-in-offioe of the Magistrate who had dismissed the former complaint, or (3) before a Court other than the Court which had dismissed the former complaint.
(3.) It is well settled that there is no bar to the trial of a second complaint by the same Magistrate who had dismissed the first complaint and passed an order of discharge. To this effect are the decisions of this Court in Queen-Empress v. Puran (1886) 9 All. 85, Queen-Empress v. Omedan (1895) A.W.N. 86, Emror v. Mehrban Husain (1906) 29 All. 7 and Emperor v. W.C. Keymer A.I.R. 1914 All. 179.;