P L D 1962 Supreme Court 242 (PLP)

B. Z. KAIKAUS, J.‑

Abul Hossain Sana, the appellant in this appeal by special leave, had been sent up for trial by the police under sections 379 and 465 of the Pakistan Penal Code, the allegation against him being that he had forcibly taken away some property belonging to one Mungilal Radha Krishan Agarwalla. The case was being tried by Mr. Meherullah, Magistrate 1st Class, Satkhira. On a number of dates fixed for hearing no evidence was produced at all by the prosecution. The complainant who had lodged the first information report was himself under detention in Khulna Jail and did not appear as a witness. As the pro secution failed to adduce any evidence In spite of the fact that several opportunities were allowed to it to do so the Magistrate discharged the accused on the 14th November 1959 under section 253 without recording any evidence holding in the words of section 253 that the charge was groundless. The complainant filed an application in revision before the Sessions Judge, Khulua with a prayer that the order of discharge be set aside and by his order dated the 10th of December 1959 the Sessions Judge called for the records. During the pendency of these proceedings before the Sessions Judge, that is, on the 17th of December, 1959, the Court Sub‑Inspector of Satkhira filed an application before Mr. Meherullah who had passed the order of discharge for a revival of the case in which the order of discharge had been passed. Mr. Meherullah by an order the same date granted the application without notice to the appellant and fixed a date for a de novo hearing. The application In revision pending before the Sessions Judge was dropped by the complainant in view of the order passed by Mr. Meherullah. Against the order of revival the appellant filed an application in revision before the Sessions Judge who refused to interfere and the appellant then moved the High Court. The learned Single Judge of the High Court who heard the application in revision was of the opinion that although no grounds for revival were stated in the order of Mr. Meherullah the petition on which the order was passed did show some grounds and therefore the order was justified in law. Apparently the learned Single Judge was of the opinion that if there was sufficient cause for non‑production of evidence in the proceedings which resulted in a discharge the proceedings could be revived. On behalf of the appellant It has been urged before us that even it a second prosecution be competent on a fresh complaint or fresh police report in respect of the same offence, there is no power in a Magistrate to revive the proceedings which have come to an end by the passing of an order of discharge. This conten tion we have found no difficulty in accepting. When a Magistrate passes an order of discharge he exhausts his jurisdiction so far as proceedings before him are concerned. Under the Criminal Procedure Code a Magistrate dealing with a warrant case has to act in accordance with sections 252 and

253. He has, in accordance with section 252, to bear the complainant and to take all such evidence as may be adduced on behalf of the prosecu tion. After he has recorded the evidence he has either to frame a charge or discharge the accused, or if he considers the charge to be groundless he can even before he has recorded the whole of the prosecution evidence pass an order of discharge. Bui once he discharges the accused the whole of the authority granted by the Criminal Procedure Code in respect of the proceedings before him is exhausted and he is not empowered to take any further proceedings. A final order having been passed the' proceedings are closed so far as he Is concerned, and he is henceforth functus officio. To hold otherwise would amount to granting him a power of review which power he does not possess under the Criminal Procedure Code. Once a final order is passed in any proceedings before a Magistrate those proceedings cannot be re‑opened except by the order of a superior Court acting in accordance with authority granted by law. It has begirt urged before us that there is, in the Criminal Procedure Code, no bar to the revival of proceedings. That is not a correct approach. An express bar to fresh proceedings was not essential when the law provides for the exercise of jurisdiction by a Court the jurisdiction will be exhausted if it is exercised once. The jurisdiction which the Code granted to the Magistrate by sections 252 and 253 having been exhausted It is for him who invokes a power of revival to establish such power. In the absence of a specific provision the power shall be presumed not to exist. If an order of discharge did not constitute any bar at all to a fresh complaint or a fresh police report it may be possible to argue that‑ the ground on which we are placing this case is a wholly technical one. It is proper therefore to consider the effect of an order of discharge. Under section 403 of the Criminal Procedure Code an acquittal operates as an absolute bar to a fresh prosecution but the section expressly provides that a dis charge is not an acquittal. This however does not mean that an order of discharge has no effect on the competence of further proceedings. The general principle that there has to be an end to litigation is applicable ex necessite re to proceedings of any kind in a Court. It would be impossible to contend that once an accused person has been discharged after the whole of the evidence produced by the prosecution has been recorded he can be proceeded against on a fresh complaint or report on the basis, of the very same evidence. If this were permissible there may be proceedings ad infinitum against an accused person. Also the power granted to a revisional Court to set aside discharge and order fresh enquiry would on this view become redundant. An order of discharge, which is passed on the merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal. In the presence of an order of acquittal fresh proceedings in respect of the same offence will be entirely without jurisdiction, while in the case of an order of k, discharge passed on the merits fresh proceedings will be improper and will not be permitted. In pre‑Partition India authority was not uniform on the question which we are deciding in this appeal. A number of cases were cited before us on behalf of the respondent in which it was held that the discharge of an accused or a dismissal of a complaint was no bar to further proceedings in respect of a same offence and in some of those cases, even a revival of the same proceedings was held to be legal. We propose to refer however only to two Full Bench judgments of the Calcutta High Court which contain the whole of the argument in favour of the absence of any bar to revival or fresh proceedings in respect of the same offence. In Mr. Ahwad Hossein v. Mahomed Askari (I L R 29 Cal. 726) a complaint had been filed under sections 426, 295 and 297 of the Penal Code and process had been issued against the accused. On the day fixed for hearing of the case the complainant put in an application saying that the accused had apologized and that he wanted to withdraw the case. At this, the Magistrate acquitted the accused of the charge under section 426, I. P. C., that being a summons case and discharged him in respect of offences under sections 295 and 297 of the Penal Code. On the same day the accused filed a petition saying that he had not apologized. At this the com plainant put in another petition praying that the case may be revived and the Magistrate made the following order:‑ "Summon the accused under sections 295 and 297 of the Indian Penal Code after the 15th August 1901." The accused approached the High Court in revision and the case was heard by a Bench consisting of Maclean, C. J., Prinsep, Ghose, Hill and Henderson JJ. Maclean C. J. simply stated that he had found no reasons for making any distinction between the case before him and the previous Full Bench case, i.e., Dwarka Nath Mondal v. Beni Madheb Banerjee (I L R 28 Cal. 652), wherein he had held that a Presidency Magistrate was not debarred from taking further proceedings in spite of an order of discharge. Prinsep, Hill and Henderson JJ. expressed an opinion to the same effect. Ghose, J. who was a party to the earlier Full Bench case and had recorded a dissenting judgment therein stuck to the opinion he had expressed and reiterated in brief the reasons on which he had relied. The facts in Dwarka Nath Mondal's case, were that in a case under section 406 of the Indian Penal Code in which cognizance had been taken on a complaint, the complainant was absent on a date of hearing and the Presidency Magistrate wrote the following order :‑ "Complainant is absent, defendant denies the charge. Dismissed. Defendant is discharged." Subsequently, the complainant applied that the case be revived and the Magistrate made the following order :‑ "Heard both parties at length. The complainant in this case was absent when his case was called by a few minutes. It is I think fair that the case be revived." The matter having come to the High Court on the revisional side was placed before a Full Bench. It was held that the revival was justified in law. Maclean, C. J. did not give any detailed reasons even in this case and referred to the judgment he had delivered in Queen Empress v. Dolegobind Dass (I L R 28 Cal. 211). It will be observed that both these Full Bench cases are cases of revival of the same proceedings. The judgments however do not male any distinction between a revival and a fresh prosecu tion with respect to the same offence and, in fact, the competence of a fresh proceeding is relied upon in the judgment of Prinsep J., as an argument in favour of the competence of a revival. The reasons contained in these cases for the proposition that a discharge or dismissal is no bar to fresh proceedings are the following :‑ (1) that section 403, Cr. P. C. while it creates an absolute bar in the case of an acquittal provides no bar in the case of a discharge or dismissal of a complaint and the Court cannot unless it intends to legislate introduce a bar not provided for by the legislature ; (2) an order of dismissal of a complaint of a discharge is not a judgment within the meaning of section 357, Cr. P. C. (3) sections 252 and 203, Cr. P. C., oblige the Magistrate to proceed as provided therein and he has no power in the absence of a legal bar to refuse to take cognizance of an offence. Two main arguments were put forward before the learned Judges on behalf of the accused. The first was that if a discharge created no bar, there may be successive proceedings against the same person in respect of the same offence. The second was that the revisional powers would on the view they were taking become redundant. As to the first argument their reply was that if there had been a discharge after hearing full evidence no Magistrate would again hear the same case and if he did the High Court would interfere on the revisional side. The reply of the learned Judges to the second argument will appear from the following observation of Prinsep J.:‑-- "The power to act under section 437 is only, as it were, on a mandamus to order proceedings to be taken, where a case had been dropped and not to restrict the power conferred by law." It will be observed that in both the cases a second prosecution was, in accordance with the view we have taken, permissible, for there was no decision on the merits after recording of evidence in either case. Had cognizance been taken in these cases on the basis of fresh complaints there could be no objection to the proceedings at all. The learned Judges did not see any difference between a fresh complaint and a revival of the same proceedings. It is true that the difference may appear to be a technical one but it is not a difference which can altogether be ignored. In a proper case an application for revival may amount to a fresh complaint but barring that we would not accept for the reasons already recorded that a revival is possible. The difference between the view we are taking and the view which was taken in the Full Bench cases is not so great as it may at first sight appear. It had been accepted in these cases that if there has been a discharge, after hearing of evidence, there should not be a second prosecution and that is substantially the basis of this judgment. We are in agreement with the learned Judges on the question as to whether a second prosecution will be with or without jurisdiction for we do not hold it will be entirely without jurisdiction. The main difference in the view we take and the view taken in the Full Bench cases with respect to the competence of fresh proceedings is that while we are laying down a general rule prohibiting Magistrates from entertaining fresh proceedings in respect of an offence after there has been an order of discharge, the learned Judges of the Calcutta High Court simply gave expression to their expectation that the Magistrate will not entertain such proceedings and stated further that if they did so the revisional Court would interfere. We will consider in brief the reasons advanced by the learned Judges in support of their view. As regards the first of these reasons which relates to section 403, Cr. P. C., it will be useful to refer to the parallel provision existing in the Civil Procedure Code, that is, section 11, which embodies a part of the principle of res judicara. In spite of the existence of section 11 the principle of res judicata has been applied to a number of circumstances which are not covered by this section. The argument that section 403 does not create a bar cannot be conclusive in the face of the well‑established principle that there is to be an end to litigation and that as a general rule a person is not to be vexed twice in respect to the same matter. As has already been observed if full effect was given to the argument that where a bar is not created by section 403, Cr. P. C., the bar does not exist at all, there will be no end to successive proceedings which on exactly the same evidence may be taken before a Magistrate against a particular accused person. It is not necessary for us to consider whether the order of discharge or dismissal of a complaint is a judgment. We do not see any reason for holding that it is only in the case of a judgment that a fresh exercise of the same jurisdiction is barred As long as there is no provision for a review, proceedings once taken on the merits cannot be re‑opened. Of course, the revisional Court has full powers in all cases where any sufficient reasons exist to direct fresh enquiry for the bar itself is based on a general principle and is not to be regulated by any technical considerations. So far as the third of the reasons is concerned, it appears to us, we say so with all respect, that there is an inconsistency in the judgments under consideration. On the one hand, it is stated that a Magistrate is bound by section 252 to take cognizance of the offence and to hear and record the evidence produced and pass an order either of discharge or of charging the accused. On the other hand, the learned Judges themselves say that if previously there has been a discharge on the merits the Magistrate should not proceed to hear the case. If the Magistrate is bound to proceed under section 252 it will not be possible for him to refuse to exercise jurisdiction on account of an earlier order of discharge. The learned Judges have, when they lay down that a Magistrate ought not to hear a case where there has been a previous order of discharge, accepted that a Magistrate has discretion to refuse to bear a case (although there is no legal bar to its hearing) in spite of section 252 of the Criminal Procedure Code. We are, at the same time, of the opinion that the arguments put forward on behalf of the accused before the learned Judges did not receive sufficient consideration. As regards the argument that if a Magistrate can entertain a fresh proceeding the power of revision will become redundant, we have already reproduced the reply of Prinsep J. The interpretation the learned Judges placed on section 437 (the present section 436) was that if a Magistrate refused to take fresh proceedings on account of the existence of an order of discharge the revisional Court can direct him to do so. If this was the intention of section 436 of the Criminal Procedure Code it would be differently worded, and the provision would be made that a party should first approach the Magistrate himself and if he refused to entertain a fresh complaint the revisional Court may be approached. The Legislature would in that case have stated the circumstances in which the Magistrate was to entertain fresh proceedings and the circum stances In which he was not to entertain such proceedings so as to provide the revisional Court with a proper criterion for interference. We hold that the revival of proceedings was illegal We accept the appeal and set aside the order of the Magistrate reviving the proceedings. K.B.A Appeal accepted,