- (1.) THE short but interesting question which falls for consideration in this criminal petition presented under Section 482, Code of Criminal Procedure, 1973 (Cr. P. C.) is whether the petitioner, who has been discharged by Magistrate on the report purportedly filed by the police under Section 169, Cr. P. C. can be subjected to further investigation by the police. The petitioner, who is implicated in connection with Shillong sadar P. S. Case No. 86 (5)09 u/s. 120-B/ 224/333, IPC, was discharged by the learned Chief Judicial Magistrate, Shillong in her order dated 5-6-2009, which is as follows : "date 5-6-2009. C. R. put up today. Seen and perused discharged report from liabilities of the instant case against accused person, Shri Thomas nongtdu from S. I. K. R. Marak, I. O. of the case dated 5-6-2009. S. I. Marak, vide report above, submits that the accused named above, who was arrested and forwarded before this Court on 4-6-2009 was thoroughly interrogated and during interrogation it transpires that : -1. The accused is having good background and is presently holding the post as mdc of JHADC. 2. That the accused is in the habit of helping people who came to him for donation in need for the expenditure due to suffering/illness and Social cause. 3. That the lady who came to him told him about her mother who is suffering from chronic disease as she came to learn that the accused used to help the needy people. 4. That the accused is having no past criminal records. That under the above circumstances and further that during investigation, no prima facie case about the involvement of the accused could not be established nor any evidence is forthcoming to establish his involvement. Hence I. O. prays for discharging the accused person Shri Thomas Nongtdu from liabilities of the instant case. In view of the fact stated above and that the I. O. is finding that the accused Shri thomas Nangtdu is not involving in this case. This Court deem it fit and proper to accept the prayer of the I. O. and accordingly the accused person Thomas Nangtdu is discharged from liabilities of the case and the case against him is disposed of. Sd/-Smt. m: B. Challam, chief Judicial Magistrate, shillong Court. "
(2.) SOME fourteen days later, the same magistrate passed another order, which is impugned herein, and the same reads thus: "date 19-6-2009. Seen copy of the order of S. P. , East Khasi hills, Shillong, Memo No. S/c/15/2008-09/ 321-A dated Shillong the 17th June 2009 that Inspector K. Prasad Officer-in-Charge, sadar P. S. is directed to investigate the case in place of Sub-Inspector K. R. Marak of shillong P. S. Keep the copy of the above order in the file. Later, seen prayer of the I. O. Insp. K. Prasad dated 19th June 2009 for reasons stating therein, pray for adding Section 225, IPC r/w Sec. 25 (I-B)/27 Arms Act which is allowed. Later, seen and perused prayer of the I. O. Insp. K. Prasad, Shillong Sadar P. S. for the reasons stating therein, for re-opening of the case against Shri Thomas Nongtdu which is allowed. Also stating therein that for ready reference in connection with this instant case enclosed the Newspaper clipping. Place the same accordingly in the file. And in the light of the above, the case against Shri Thomas Nongtdu is allowed to re-open. Sd/-Smti. M. B. Challam, chief Judicial Magistrate, shillong Court. "
(3.) CONSIDERING the nature of controversy and the contentions advanced by the learned counsel on behalf of the rival parties, it is not necessary to refer to the facts of the case. Mr. J. M. Choudhury, the learned senior counsel for the petitioner, vehemently attacks the decision of the learned Magistrate in re-opening the case when she has already discharged the petitioner from the case. According to the learned senior counsel, the order dated 5-6-2009 discharging the petitioner from the case is a judgment or, at any rate, a final order within the meaning of Section 362, Cr. P. C. and the learned Magistrate is thus barred from reopening the case inasmuch as such exercise is tantamount to review of her order. The learned magistrate, so submits the learned senior counsel, has completely overlooked the glaring fact that by discharging the petitioner from the case, a vested right has accrued to the latter thereby practically granting him immunity from further investigation. The learned senior Counsel maintains that the petitioner is innocent, and has been unnecessarily implicated in the case and that even if the FIR or the report of the I. O. , are taken at their face value also, the allegations made therein do not make out a prima facie case. Therefore, he strenuously urged this Court to quash the impugned order and proceedings against the petitioner. On the other hand, Mr. N. D. Chullai, the learned Public prosecutor, supports the impugned order and submits that an order of discharge is merely an interlocutory order and cannot be equated with an order of acquittal precluding further investigation or fresh trial. It is his contention that the impugned order cannot by any stretch of imagination be construed as a judgment or final order so as to attract the embargo of Section 362, Cr. P. C. Contending that the criminal petition is premature and is otherwise without any merit, he prays for dismissal of the criminal petition.;