LAWS(PVC)-1929-3-90

DEBIDAS KARMAKAR Vs. EMPEROR

Decided On March 27, 1929
DEBIDAS KARMAKAR Appellant
V/S
EMPEROR Respondents

JUDGEMENT

(1.) This rule was issued calling upon the District Magistrate of Burdwan to show cause why an order of the Sessions Judge of Burdwan directing that the petitioners should be committed for trial to the Court of Sessions on a charge of murder should not be set aside. The main ground upon which the order has been assailed is that inasmuch as the learned Sessions Judge had already at a previous stage rejected an application for setting aside an order dicharging the petitioners under Section 409, Criminal P.C. he had exhausted his revisional power, and could not make the order now complained of under Section 437, Criminal P.C. the contention being that that order is, practically speaking, a review of his previous order, and therefore not sustainable in law. In my opinion there, is no substance in this contention. The facts are shortly these:

(2.) The two petitioners and a woman named Tarubala were sent up for inquiry before Mr. A. Hossain, Deputy Magistrate of Burdwan under Secs.307 and 326, I.P.C. The petitioners were discharged under Section 209, Criminal P.C., the Magistrate being of opinion that the evidence against them was so meagre and wretched that no jury could possibly convict upon it. Before the commencement of the trial an application was made before the Sessions Judge by the father of the woman Tarubala praying that the order of discharge should be set aside and that the present petitioners should be ordered to be committed for trial also. That application was summarily rejected on 10 July 1925 apparently upon a perusal of the commitment order. At a later stage with all the evidence before him the learned Sessions Judge came to the conclusion that the present petitioners had been improperly discharged and recorded the order which forms the subject matter of this rule.

(3.) The question is whether he had jurisdiction to make the order. In my judgment the contention that he bad no such jurisdiction, because he had made the previous order rejecting a similar application, is without substance. Jurisdiction to make an order of this description, is a continuing jurisdiction, and is not barred merely because an application may have been previously refused upon different materials. An order of this nature is not a final order but is open to reconsideration upon proper materials. The case is analogous to the case of an order of dismissal or discharge. Such orders do not take away the jurisdiction of the Magistrate. A Court is competent to take cognizance of a complaint which it has already dismissed under Section 203, Criminal P.C., without any order for further inquiry by a superior tribunal Emperor V/s. Chinna [1903] 26 Mad. 126 following Divarknath V/s. Benimadhab [1901] 28 Cal. 652. The position is the same as regards an order of discharge, though there may be some doubt where such an order has been passed upon a consideration of the full materials. Section 369, Criminal P.C., which was apparently relied upon by the petitioners before the Sessions Judge certainly has no application, since an order of this nature is not a judgment. It is also in my opinion, a material fact in the present case that the subsequent order directing commitment was made upon fresh materials when the entire evidence was before the Judge, whereas his first order was a summary one based merely on a perusal of the commitment order, which was all that was before him at that stage. If the Judge with these fresh materials before him was of opinion that there had been an improper discharge, it seems to me that it was his duty to make the order, and that if he failed to do so, a miscarriage of justice might result.