WASUDEO NARAYAN PHADNIS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The facts of this case are simple. A complaint was filed against the three applicants under Section 500, Penal Code, on 7th May 1948, in the Court of the City Magistrate, First Class, Jalgaon. After a few adjournments, the regular hearing of the case commenced on 23rd July 1948. On that date the complainant was examined, and the case was adjourned to 11th August 1948, and subsequently to 24th August 1948. On the latter date the case had been fixed for hearing at 2 p. m. When the case was called out, the complainant was absent. The learned Magistrate, therefore, passed an order discharging the applicants under Section 259, Criminal P. C. The complainant appeared before the Magistrate at 3 p. m. on the same day and requested that the order of discharge should be reviewed and that the complaint should be re-heard. In his application he stated that he was not able to attend the Court at 2 p. m. as he had to give evidence as a witness in a civil Court. The learned Magistrate granted this application made by the complainant, set aside the order of discharge, and directed that the complaint should be taken on file and re-heard. Fresh summonses were issued to the accused and the case was fixed for hearing on 30th August 1948. On that date the learned Magistrate examined the remaining witnesses for the prosecution and framed a charge against the applicants. No objection was taken by the applicants on that day that the order of discharge had been wrongly set aside. The case was thereafter fixed for. hearing on 13th September 1948. The applicants then made an application to the Sessions Judge, East Khandesh, and contended that the order passed by the Magistrate on 24th August 1948, taking back the complaint on his file was illegal, and that the Magistrate should have held a de novo trial after taking the complaint on his file. They, therefore, requested that a reference should be made to the High Court recommending that the order of the Magistrate reviving the complaint should be set aside. The learned Sessions Judge was of the opinion that the Magistrate was competent to re-hear the complaint, and that it was not necessary for him to begin the proceedings de novo. He, therefore, dismissed the application made to him by the three applicants. Against that order the three applicants have now come in revision.

(2.) Three points have been urged in this application. The first is that the learned Magistrate was not competent to review his own order, by which he had discharged the applicants on 24th August 1948. It has been argued that after passing that order, the Magistrate became functus officio, and that he could not Page 2 of 9 In Re: Wasudeo Narayan Phadnis and Ors. vs. (02.03.1949 - BOMHC) re-hear the complaint, unless his order had been set aside by a superior Court, under Section 436, Criminal P. C., which empowers a Sessions Judge or a District Magistrate to direct any subordinate Magistrate to make further enquiry into the case of any person accused of an offence, who has been discharged. Reliance is placed on Section 369, Criminal P. C., which provides that no Court shall alter or review a judgment after it has been signed, except to correct a clerical error. The word 'judgment' is not defined in the Code. In Damu Senapati v. Sridhar Rajwar, 21 Cal. 121 at p. 127, it was described by Trevelyan J. as "the expression of the opinion of the Judge or Magistrate arrived at after due consideration of the evidence and of the arguments."

(3.) This definition has been approved by a Pull Bench of this Court in Emperor v. Nandlal Chunilal, 48 Bom. L. R. 41 at p. 44 : (A. I. R. (33) 1946 Bom. 276 : 47 Cr. L. J. 700 F. B.). When a Magistrate discharges an accused person under Section 259 on account of the absence of the complainant, he does not apply his mind to the evidence in the case. The order is passed, not on a consideration of the merits of the case, but merely because the complainant was absent at the time fixed for the hearing of the case. Such an order of discharge cannot, therefore, be said to be a 'judgment' and consequently the Magistrate is not debarred from reviewing such an order. It is true that it is open to the complainant in such a case to move a superior Court to set aside the order of discharge and direct further enquiry into the case under Section 436, Criminal P. C. But as pointed out by Maclean C. J. in Mir Ahwad Hossein v. Mahomed Askari, 29 Cal. 726 at p. 731 : (6 C. W. N. 633 P.B.), this is an enabling section and does not take away the jurisdiction vested in a Magistrate to rehear the, complaint. The fact that the complainant has this remedy available to him would not therefore be a sufficient ground for holding that the Magistrate is not competent to review his own order passed under Section 259, Criminal P. C. It is open to the complainant to pursue still another course, viz., to file a fresh complaint. It is now well settled that a fresh complaint on the same facts can lie when the previous complaint has been dismissed under Section 203 or when the accused person has been discharged under Section 253, or Section 259, Criminal P. C. : see In re Mahadev Laxman, 27 Bom. L. R. 352 : (A. I. R. (12) 1925 Bom. 258 : 26 Cr. L. J. 991), Emperor v. Amanat Kadar, 31 Bom. L. R. 146 : (A. I. R. (16) 1929 Bom. 134 : 30 Cr. L. J. 594) and Alimahomed v. Kasturchand, 41 Bom. L. R. 90 : (A.I.R. (26) 1939 Bom. 89 : 40 Cr. L. J. 346). In Emperor v. Amanat Kadar, 31 Bom. L. R. 146 : (A. I. R. (16) 1929 Bom. 134 : 30 Cr. L. J. 594), Madgavkar J. stated (p. 147) :