EMPEROR Vs. CHINNA KALIAPPA GOUNDEN

JUDGEMENT

(1.) The general question argued before us in this case was whether it was open to a Magistrate to hear a complaint which has 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 rehear or revise, like a right 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 rehear 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. Prime 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 au 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. 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 rehearing 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.