EMPEROR Vs. SRIPAL AND ORS

JUDGEMENT

(1.) This is a reference by the learned Additional Sessions Judge of Gorakhpur at Basti recommending that the order of the District Magistrate of Basti dated 16th April 1933, directing further enquiry into a criminal case, in which the accused were released by the Trial Magistrate under Section 249, Criminal P.C. be quashed. Certain persons were sent up for trial by the police under Section 13, Gambling Act. The Magistrate inspected the place, where the gambling was alleged to have taken place, and come to the conclusion that it was not a public thoroughfare. He, accordingly, re-fused to take further evidence and passed an order on 1st March 1933, releasing the accused under Section 249, Criminal P.C. The case was again put before the Magistrate on 10th March and, on that date, a report made by the Prosecuting Inspector was perused. The case was again taken up by the Magistrate on 17th March and, on that date, he adjourned the case to enable the Prosecuting Inspector to enable the case, after the Prosacuting Inspector and the Superintendent of Police had inspected the alleged place of gambling. On 8th April the Prosecuting Inspector produced a map, and stated that be and the Superintendent of Police had inspected the spot, and that a pagdandi (footpath) runs at a distance of three or four hundred yards from the place where the gambling had taken place, and that that place was visible from the footpath. The learned Magistrate then dictated the following order on the order sheet:

(2.) A petition was then filed by the Prosecuting Inspector on the same date, viz., on 8th April, in the Court of the Districts Magistrate. It was styled as an application

(3.) The District Magistrate held that the order of the trial Magistrate under Section 249, Criminal P.C. does not bar further proceedings according to law, and, accordingly, we directed that further proceedings against the accused be taken, and made over the case to the Sub-Divisional Magistrate for disposal. This order, as appears from the explanation submitted by the learned District Magistrate, was passed by him under Section 436, Criminal P.C. On an application in revision being filed by the accused, the learned Additional Sessions Judge was of the opinion that the learned District Magistrate had no jurisdiction to set aside the order passed by the Trial Magistrate under Section 249, Criminal P.C. in the exercise of the revisional powers vested in him by Section 436 of the Code and, accordingly, has made the present reference. The learned District Magistrate has submitted an explanation and, in the course of that explanation, he maintains that his order directing further enquiry into the case was perfectly legal. He has pointed out that, as an order under Section 249, Criminal P.C. neither amounts to an acquittal nor to a discharge, the Magistrate, who passed the order and who stayed proceedings under that section, is not barred from starting proceedings afresh against the accused. He therefore maintains that, if the trial Magistrate could start proceedings afresh there is no reason why the District Magistrate, to whom the trial Magistrate is subordinate should not be empowered to order further enquiry into a case, the proceedings in which were stayed by a Subordinate Magistrate under Section 249, Criminal P.C.