THOMAS NONGTDU Vs. STATE OF MEGHALAYA

JUDGEMENT

(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 :

(2.) SOME fourteen days later, the same magistrate passed another order, which is impugned herein, and the same reads thus:

(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.