EMPEROR Vs. VARJIVANDAS ALIAS KALIDAS BHAIDAS

JUDGEMENT

(1.) This was a rule granted to the Public Prosecutor calling on Yarjivandas alias Kalidas Bhaidas to show cause why the order passed by Mr. Binning, Acting Chief Presidency Magistrate, discharging him under Section 209 of the Criminal Procedure Code (Act V of 1898), should not be set aside and why he should not be committed to the Court of Sessions for trial on charges under Secs.471 and 109 of the Indian Penal Code.

(2.) Mr. Branson, who has appeared to show cause against the rule, has contended that it is not competent to this Court to set aside the order and direct the commitment of the accused either under the provisions of the Criminal P. C. or under tine Charter or the Charter Act, and that the prosecution is not prejudiced in any way because it is open to them to make a fresh application, the order of discharge not amounting to in acquittal. The learned Counsel drew our attention to several Calcutta cases in which, he argued, there was considerable divergence of opinion, and submitted that there was no authority in any ruling of the Bombay High Court for the construction which had been placed on Section 15 of the Charter Act and Section 28 of the Charter by the Calcutta High Court.

(3.) The first case to which our attention was drawn is that of Charoobala V/s. Barendra Nath (1899) 27 Cal. 126 in which the Court, consisting of Prinsep and Hill, JJ., differing from Ghosh and Wilkins, JJ., in Colville V/s. Kristo Kishore (1899) 26 Cal. 746 held that the High Court has powers of revision in respects an order of discharge passed by a Presidency Magistrate, by reason, not of Section 28 of the Letters Patent, 1865, but of Section 15 of the Charter Act (24 and 25 Vic, c. 104). Their Lordships added that the 1 High Court had no power under the Code of Criminal Procedure to interfere in revision with an order of dismissal or discharge passed by a Presidency Magistrate. In Colville V/s. Kristo Kishore (1899) 26 Cal. 746 the Court had held that under Secs.435 and 439, read with Section 423 of the Criminal Procedure Code, it had power to revise the proceedings of a Presidency Magistrate and order a further enquiry to be made, and that it had the same power under Clause 26 of the Letters Patent of 1865.