RAGHUBANS PRASAD Vs. STATE PRABHU DAYAL MISSIR

JUDGEMENT

(1.) This is a reference by the Sessions Judge, Muzaffarpur, under Section 438 of the Code of Criminal Procedure recommending the setting aside of the order of the Magistrate dated 2nd July, 1958, by which he recalled his previous order of discharge dated 11th June, 1958, and. summoned the accused persons afresh.

(2.) The facts are these : On 5th November, 1957, Prabhu Dayal Missir, the complainant, instituted a case before the Town police at Muzaffarpur for Prosecution of Raghubans Prasad, Sahdeo Singh, Baleshwar Prasad and Raghunath Pandey for the offence of theft and cheating under Ss. 379 and 420 of the Penal Code. Eventually, the police submitted charge-sheet against them, and the Sub-divisional Officer, Muzaffarpur, took cognizance of the case on 4th March, 1958, and transferred it to Mr. B. N. Missir, Judicial Magistrate, 1st class, for disposal. After some adjournments, the case was taken by Mr. Missir On llth June, 1958. Upon a consideration of the documents before him and after hearing the parties, the Magistrate formed an opinion that the facts did not disclose commission of offences under Ss. 379 and 420. Accordingly, he discharged the accused persons under Section 251A(2). On 13th June, 1958, an application was made on behalf of the prosecution for revival of the Proceeding on the ground that certain matters had not been considered. He issued notice to the accused persons to show cause why the previous proceedings should not be revived. Cause was not shown by the accused, and on 2nd July, 1958, on fresh consideration of the record and the case diary the Magistrate was satisfied that the discharge of the accused under Section 251-A(2) was not justified and that there were sufficient materials to establish prima facie the offences under Sections 379 and 420. He observed that the Previous order of discharge was based upon documents which did not form part of the case diary and which had since been withdrawn by the parties filing them, suggesting thereby that on the strength of those documents the accused should not have been discharged. Accordingly, he recalled the order of discharge passed by him on 11th June, 1958, and summoned the accused Persons. It is this order whose reversal the learned Sessions Judge has recommended.

(3.) In support of this reference Mr. Kanhaiyaji contended that the learned Magistrate was not competent to revive his own order, by which he discharged the accused on llth June, 1958. It has been urged that when the Magistrate passed the order of discharge, he became functus officio, and therefore he was unable to rehear the case. He referred to Section 369 of the Code of Criminal Procedure which provides that no court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error, and contended that the order of discharge is a judgment, and, therefore, the Magistrate could not revive the proceedings of his own accord, because it would be tantamount to reviewing his own order which is prohibited by Section 369. I am unable to accede to this unqualified and broad proposition of law. It is against the weight of authorities. The Code of Criminal Procedure does not define what a judgment is. Section 367, however, lays down the contents of a judgment and states what must be in a judgment. It states that it shall contain the point or points for determination, the decision thereon and the reasons for the decision. This section, however, applies to the Provincial Criminal courts. Section 370 is applicable to judgments of Presidency Magistrates. It only provides for certain particulars being mentioned in the judgment. But in all cases in which the Presidency Magistrate inflicts imprisonment or fine exceeding Rs. 200 or both, a brief statement of the reasons for the conviction has to be recorded. An examination of the various Provisions of the Code will show that every order passed by the Magistrate under the Code is not a judgment within the meaning of Section 369. In order to constitute judgment there must be an investigation of the merits of the case on evidence and after hearing the arguments. Where, however, the order is passed summarily without consideration of the entire evidence as in the case of the order of discharge, it will not obviously amount, to a judgment. Tevelyan, J. has described judg-ment in Damu Senapati v. Sridhar Rajwar, ILR 21 Cal 121 as "the expression of the opinion of the Judge-or Magistrate arrived at after due consideration of the evidence and of the arguments." The same view has been expressed by a Full Bench of the Calcutta High Court in Dwarka Nath Mondul v. Beni Madhab, ILR 28 Cal 652. Referring to the order of discharge PrinseP, J., has observed as follows: