T.P. Mukherjee, J. - (1.) This Rule calls upon the Chief Presidency Magistrate, Calcutta, to show cause why the order passed by a Presidency Magistrate on July 4, 1965, whereby he revived a case in which earlier that day the accused had been discharged under Sec. 259, Criminal Procedure Code, should not be set aside on the ground that the learned Magistrate had no power under the Code to revive that case. The Petitioner was prosecuted before the Magistrate for offences under Ss. 448/504/352, I.P.C. July 14 and 15, 1965, were fixed for prosecution witnesses. On July 14 the Magistrate passed the following order: Accused present. Complainant is absent on repeated calls. No petition filed for the complainant who is absent. It is now 12 noon! Accused is discharged under Section, 259, Cri.P.C. The complainant subsequently appeared and a petition for revival of the case having been filed the following order was made: Later, complainant appears later and prays for revival of the case by a petition. The case is revived. Issue fresh summons under Sec. 355/448/504, I.P.C. To 28.7.65 for appearance of the accused. The accused appeared on the date fixed and was let out on executing a P.R. Bond. Thereafter, he moved this Court and obtained the present Rule challenging the competence of the learned Magistrate to revive the case.
(2.) Mr. N. C. Banerjee, appearing in support of the Rule, contended that the Magistrate had no power after an accused is discharged to revive the case on the petition of the complainant. The second order of the learned Magistrate quoted above is further taken exception to on the ground that a summons can only issue under Sec. 204 of the Code after cognizance is taken of the offence and the Magistrate taking cognizance is satisfied that there is sufficient ground for proceeding with the complaint. As, according to him, this is the only procedure for issue of a summons, taking of cognizance and satisfaction about sufficiency of the ground for proceeding with the complaint are conditions precedent thereto and these conditions not being present after an order for discharge is made, the order for issue of the process is liable to be struck down. The remedy of the complainant, according to Mr. Banerjee, further was either by way of a revisional application against the order of discharge under Sec. 436 of the Code or a fresh complaint of which cognizance could be taken under Sec. 200.
(3.) On behalf of the opposite party reference is made to the Full Bench decision in Dwarka Nath Mondal v/s. Beni Madhab Banerjee, (F.B.). C.W.N. 457 There the accused was summoned by a Presidency Magistrate under Sec. 406, I.P.C., and on the case coming on for hearing the Magistrate recorded the following order: The complainant is absent. Defendant denies the charge. Dismissed. Defendant is discharged. As the order could not be legally passed under Sec. 259 of the Code, the offence of criminal breach of trust not being legally compound -able, the complainant applied for revival of the case and the Magistrate passed the following order a month after the above order of discharge: Heard both the parties at length. The complainant in this case was absent when his name was called by few minutes. It is I think fair that this case should be revived.... I, therefore, revive the case and order the re -issue of summons. Against this order the accused moved this Court and the matter ultimately came up before a Full Bench. The decision of the Full Bench was that the Presidency Magistrate is competent to rehear a warrant case triable under Chap. 21 of the Code of Criminal Procedure in which he has discharged the accused persons. The decision of the Full Bench rested on the consideration that an order of discharge such as was made in the case was not a judgment under Sec. 370 of the Code and that so long as a judgment is not passed in the case nothing stands in the way of review of an order that is made by the Magistrate. 3.1 The above Full Bench decision was approved in another Full Bench decision in Mir Ahwad Hossain v/s. Mohamed Askari, (1902) LJL.R. 29 Cal. 726. The accused in the case was discharged under Sec. 253 of the Code of Criminal Procedure in respect of offence under Ss. 295, 297, I.P.C., on the complainant putting in a petition stating that he was willing to withdraw the case as the accused had apologized. That was on July 27, 1901. The accused subsequently on the same date filed a petition stating that he had not apologized. On July 31, the complainant applied to the Magistrate praying for revival of the case and the Magistrate passed the following order: Summon the accused under Ss. 295/297, I.P.C., for the 15th August 1901. It may be noted in this connection that Dwarka Nath Mondal's case ( Supra) arose out of an order passed by a Presidency Magistrate while the present case arose out of an order made by a mofussil Magistrate. The Full Bench approved of the earlier Full Bench decision and held that the Magistrate in a warrant case having passed an order of discharge is competent to take fresh proceedings and issue process against the accused in respect of the same offence without an order for further enquiry under the present Sec. 436 of the Code of Criminal Procedure. In this case also the learned Judge held that the order of discharge was not a judgment within the meaning of that expression in Sec. 367 of the Code and that, as such, it was capable of review by the Magistrate.;