MIR AHWAD HOSSEIN Vs. MAHOMED ASKARI

JUDGEMENT

(1.) In my opinion this case is virtually governed by the Full Bench decision to which reference has been make, viz., the case of Dwarka Nath Mondal V/s. Beni Madhab Banerjee (1901) I. L. R. 28 Calc. 652. The only distinction between that case and the present is whether, as the case before us deals with that of a Mofussil and not of a Presidency Magistrate, Section 437 of the Code makes any difference. That section, it will be remembered, does not touch Presidency Magistrates. I expressed in my judgment in the above Full Bench case a doubt as to whether there is any such difference, and after having had the advantage of Clearing the case argued by the learned vakils, who have appeared, I do not think that Section 437, which is an enabling section, by implication, takes, away the jurisdiction which, I think, is vested in the Magistrate in a case of this class to hear the complaint again. That to my mind disposes of the point referred.

(2.) But there is one point to which I should like to make a brief reference. It will be noticed that in my judgment in the Full Bench case, I confined myself to adopting what I had previously said in the casein the Sessions Court here--Queen-Empress V/s. Bole-gobind Dass (1900) I. L. R. 28 Calc, 211. In that case it was not argued before me that the decision of the Magistrate amounted to a "judgment" within the meaning of the Code, and I consequently, in that case, said nothing upon that point. In the above Full Bench case it was contended that it is a "judgment" within the meaning of Section 369. I only desire to add, with all respect to those who cake a contrary view, that I do not think it is. That point has not been suggested in the case now before us: in fact the learned vakil, who obtained the Rule and appeared in support of it, did not contend that in this case the order of discharge constituted a judgment within the meaning of the Code. I, therefore, think that the question submitted to us should be answered in the affirmative, namely, that the Magistrate in a warrant case having passed an order of discharge is competent to take fresh proceedings and issue process against the accused in respect of the same offence without an order for further inquiry under Section 437 of the Criminal P. C.. Prinsep, J.

(3.) I am of the same opinion. I have already expressed myself fully on the point raised before us now in respect of the proceedings before a Magistrate outside of Calcutta in the case heard by the Full Bench which related to the proceedings before a Presidency Magistrate. I can see no distinction between these two different classes of Magistrates in respect of the nature of the order passed and their jurisdiction in acting on . further complaint.