K.N. SINGH Vs. STATE OF WEST BENGAL

JUDGEMENT

(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:

(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: