LALLAIN Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by an accused person praying that the proceedings pending against him in the Court of the Sub-Divisional Magistrate of Konch be quashed. It appears that on 22 August, 1932 the complainant tiled a complaint under Section 379, Indian Penal Code, against the accused in the Court of the predecessor of the present officer on the allegation that the complainant owed some money to the accused and the latter took away two of his she-buffaloes and one calf-buffalo in his absence without his consent and that later when he came to know of this and went to the accused and demanded a receipt from the accused in discharge of the debt, they refused to give the receipt or to return the promissory note. The Magistrate examined the complainant and summarily dismissed the complaint under Section 203, Criminal P.C. holding that the matter was of a civil nature and there was no use in dragging the accused to the criminal Court. Thereafter, the complainant made a report to the police of the cognizable offence aforementioned, on which the police made enquiries and challaned the accused. The case came up after some delay before the successor of the previous Magistrate who took cognizance of the offence on police report and is enquiring into it and so the case is now pending in his Court.

(2.) The accused went up in revision before the Sessions Judge who came to the conclusion that the Magistrate was not precluded from trying the case on the police report and dismissed the application. The rice-used have now come up to this Court in revision and pray that the proceedings be quashed. The learned Counsel for the applicants has to admit that there is no express provision in the Criminal P. C. under which a fresh enquiry like this is legally barred. Section 403 which prevents a retrial is confined to cases where an accused person has either been convicted or acquitted. The explanation added to the section makes it clear that the dismissal of the complaint or discharge of the accused, is not an acquittal for the purposes of that section. This explanation therefore clearly implies that the retrial will not be barred if the complaint has been summarily dismissed or the accused has been discharged. The mere fact that there is a special procedure under which the District Magistrate or the Sessions Judge or the High Court can order further enquiry does not necessarily mean that a fresh complaint is legally barred and cannot be entertained. There is a plenty of authority in this Court in support of this view that an enquiry even on a second complaint whether after the accused has been discharged or the complaint has been summarily dismissed is not absolutely barred. In the first place, there is an observation made in the Pull Bench case of Queen Empress V/s. Chotu (1886) 9 All. 52 (at p. 558) suggesting that the Magistrate, who passes the order of discharge, might, at the instance of the complainant, himself exercise (the discretion of further inquiring into the matter) without direction from any superior authority.

(3.) In the same volume there is the case of Queen Empress V/s. Puran (1886) 9 All. 85 decided by a Single Judge in which it was clearly held that a Magistrate, in ordering a further enquiry, on receiving the complainant's second petition, did not act contrary to any provision of the law, although a previous complaint had been summarily dismissed under Section 203, Criminal P.C. In Queen Empress v. Umedan (1895) A.W.N. 86 a Division Bench of this Court held that: a Magistrate who has passed an order dismissing a complaint may at the instance of the complainant and without direction from any superior authority take cognizance of the same offence or of any other offence constituted by the same facts upon a second proper complaint being laid before him.