IMPORTANT POINT
Refusing to proceed further after issue of process is discharge. It may be total or partial. Total discharge can be dealt neither under Section 216 nor under Section 319 of Cr. P.C. But case of partial discharge can be dealt with under Section 216. Cr. P.C.

JUDGMENT

K.N. Saikia, J. - Special leave granted.

2. These two criminal appeals are from the common judgment of the High Court of Rajasthan dated 23-3-1989 in S.B. Criminal Revision No. 426 of 1982 filed by the appellants Nos. 1, 2 and 3 and S.B. Criminal Revision No. 325 of 1982 filed by the appellants Nos. 4 and 5 herein.

3. On 21-4-1980 one Shanti Lallodged a report at Bikaner Police Station stating therein that the appellants and two others namely Uttam Chand and Hanuman Chand at about 2 P.M. that day were pelting stones at the informant's house causing damage to it and that Durgabai, Tara and Sunita who at the relevant time were sitting at the chowk of the house were injured. After recording F.I.R. No. 22 dated 21-4-1980 and on 'completion of investigation police framed charges under Sections 147,323,325,336 and 427, I.P.C. and the charge sheet was f or warded to the Judicial Magistrate No.2 Bikaner under Section 173, Cr. P.C. After taking cognizance and after hearing the arguments, the Judicial Magistrate, Bikaner by his order dated 3-10-1980 in Criminal Case No. 165 of 1980 had been pleased to discharge the appellants Nos. 4 and 5, namely, Bijya Bai and Jiya Bai of all the charges levelled against them. Appellants Nos. 1,2 and 3, namely, Sohan Lal, Padam Chand and Vishnu were ordered to be charged only under Section 427, I.P.C. on the basis of site inspection and injury report.

4. On 25-2-1982 the Assistant Public Prosecutor submitted an application to the Magistrate under Section 216, Cr. P.C. signed by Durga Bai stating:

"The accused have been charged under Section 427, I.P.C., whereas from the entire evidence and the medical evidence prima facie case under various Sections i.e. 147,325 and 336, I.P.C. is made out. Hence it is prayed that accused be charged in accordance with the evidence and the charge be amended in the light of the evidence."

5. After recording the pica of the accused persons, prosecution led evidence and examined P.W. 1 Shanti Lal, P.W. 2 Sampat Lal, P.W. 3 Chagan Lal on 12-5-1982 and P.W. 4 Durga Bai on 8-7-1982.

6. The learned Magistrate on 8-9-1982 after referring to the aforesaid application submitted by A.P.P. dated 25-2-1982 and hearing the AP.P. and the learned advocate for the accused and discussing the evidence and observing that if any accused was discharged of any charge under any section then there would be no bar for- taking fresh cognizance and reconsideration against him according to Section 216, Cr. P.C. and that the provision of Section 319, Cr. P.C. was also clear in that connection, recorded the following order:

"Hence cognizance for offences under Sections 147,427,336,323, 325,I.P.C. is taken against accused Sohan Lal, Padam Chand, Smt. Vijya Bai, liya Bai, Vishnu, Hanuman Chand and Uttam Chand. Orders for framing the charges against accused Sohan Lal, Padam Chand, Vishnu under the aforesaid Sections are passed and accused Smt. Jiya Bai, Vijya Bai, Uttam Chand and Hanuman Chand be summoned through bailable-warrants in the sum of Rs. 500/- each. File to come on 20-10-1982 for framing the amended charge against the accused present. Exemption from appearance of accused Vishnu Chand and Padam Chand is cancelled until further order. The advocate for the accused shall present the said accused in the Court in future."

7. The above order was challenged in the aforesaid two criminal revision petitions in the High Court of Rajasthan and the same were dismissed by the order under appeal. According to the learned Single Judge the question that arose for consideration in those revision petitions was whether a Magistrate was competent to take cognizance of the offence after recording some evidence against the accused persons who had been earlier discharged of those offences. It was urged by the revision petitioners that having once discharged them it was not open to the Magistrate to proceed against them and the only remedy was to go in revision and the Magistrate could not review his, own