CHINNA KALIAPPA GOUNDEN Vs. EMPEROR

JUDGEMENT

(1.) The general question argued before us in this cause was whether it was open to a magistrate to re-hear a complaint which was been dismissed by an order under section 203 of the Criminal Procedure Code, the order of dismissal not having been set aside by a higher court.

(2.) In support of the view that the magistrate had no such power, it was urged that a power to re-hear or revise, like aright of appeal, was the creature of statute, and that in the absence of express statutory provisions conferring such power, the power did not exist. I am not prepared to accept this proposition. It seems to me that the question whether there is a power to re-hear must be determined with reference to the enactments which create and regulate the jurisdiction of the magistrate. The Code confers upon a magistrate jurisdiction to enquire into an alleged offence. Prima facie, therefore, such jurisdiction exists in the case of an alleged offence. It must be held to exist unless it appears that something has been done, or some event has occurred, which has the legal effect of depriving the magistrate of this jurisdiction.

(3.) The question therefore is whether the fact of the dismissal of the complaint by an order made under Section 203 operates so as to deprive the magistrate of jurisdiction to enquire into the offence alleged in the complaint. The first matter to be considered is - is there any provision of the Code which lays this down in express terms. There is no such provision. In his Judgment in Nilratan Sen V/s. Jogesh Chundra Bhuttacharjee (1896) I.L.R. 23 C. 983, Banerjee, J., observes (p. 988): "There is no express provision in the Code to the effect that the dismissal of a complaint shall be a bar to a fresh complaint being entertained so long as the order of dismissal remains unreversed." I do not think that, in substance, with reference to the question of jurisdiction, any distinction can be drawn between entertaining a fresh complaint and re-hearing the original complaint. The argument that the magistrate, having made the order of dismissal, is functus officio applies equally to both cases, and the formality of putting in a fresh complaint cannot be said to create a jurisdiction, which, without such formality, a magistrate would not have possessed.