T SRIRAMULU AND THREE ORS Vs. KVEERASALINGAM

JUDGEMENT

(1.) We are asked to revise an order of the District Magistrate of Godavari which directs, under Section 437 of the Criminal Procedure Code further enquiry into a case of defamation in which the joint Magistrate of Rajahmundry, Mr. Stewart, had passed what purports to be an order of discharge under Section 253 of the Criminal Procedure Code. Mr. Rosario on behalf of petitioners argues that Mr. Stewart s order was, in effect, an order of acquittal under Section 258 of the Criminal Procedure Code. If this is so, the District Magistrate undoubtedly had no power to order further enquiry under Section 437 and his order must be set aside as ultra vires.

(2.) The facts are these. The case against petitioners was first heard by Mr. Bardswell, Mr, Stewart s predecessor in office. He heard the prosecution witnesses and framed a charge under Section 254 of the Criminal Procedure Code, to which petitioners pleaded not guilty. He was then transferred. Mr. Stewart recommenced the enquiry under Section 350 of the Criminal Procedure Code, examined the complainant as prosecution witness No. 1, and then passed an order of discharge under Section 253(2).

(3.) Mr. Rosario contends that a charge having once been framed, it is not cancelled by reason of the recommencement of enquiry and the only course open to Mr. Stewart was either to record an order of acquittal or to convict (vide Section 258 of the Criminal Procedure Code).