IMPORTANT POINT
Trial magistrate has 110 Jurisdiction to set aside his own order of discharge passed u/s 249 Cr. P.C.

ORDER

Arunachalam, J. - The petitioners are the accused in C.C. No. 224 of 1986 pending on the file of the 10th Metropolitan Magistrate, Egmore, Madras. The prosecution against them was initiated on a private complaint preferred by the respondent, who is the Drug Inspector, Park Town, I Range, Madras. The respondent has alleged in his complaint that the petitioners have contravened Section 18(c) of the Drugs and Cosmetics Act, 1940 which contravention was punishable under section 27(b)(ii) of the said Act.

2. The facts in detail need not be stated for in this petition filed under section 482, Cr. P.C. invoking the inherent powers of this Court only one contention, relating to the jurisdiction of the Court, has been raised.

3. Mr. S. Chandar, learned counsel representing the petitioners submitted, that the learned Magistrate had discharged the petitioners under section 249, Cr. P.C. on 28.12.1987 holding as hereunder:

"Complainant absent. No representation. A4 by proxy. Al company, A2 by proxy. Not taken to produce A3. Complaint is dismissed and accused is discharged under section 249 Cr. P.C."

It is, therefore, contended, that the revival of the prosecution on 24.3.1988 by the learned Magistrate, on a memo filed by the respondent, was without jurisdiction.

4. I have heard Mr. B. Sriramulu, the learned Public Prosecutor representing the respondent. He contended that the offence alleged against the petitioners was not compoundable and, therefore, the learned Magistrate had no jurisdiction to discharge the petitioners under section 249, Cr. P.C. He placed for my consideration the decision of a Division Bench of this Court in Mappillaisami v. Muthuswami1.

5. I have carefully considered the contentions of either counsel. There is no dispute that on 28.12.1987 the petitioners were discharged under section 249, Cr. P.C. and that the complaint was revived on a memo filed by the respondent. Though such a memo is not available in the case records forwarded to this court, the learned Public Prosecutor has placed before me a copy of the said petition which reads as hereunder:

"Petition filed for revival of case which was discharged under section 249 of Cr. P.C. on 28.12.1987.

It is prayed that this Honourable Court may be pleased to revive the above case which was discharged under section 249, Cr. P.C. for the reason that no representation and steps were taken to procure accused 3 was made by the complainant".

This petition was filed on 24.3.1988 nearly four months after the order of discharge. No specific reason has been given in the petition for revival of the case. The Division Bench (Mappillaisami v. Muthuswami) supra held as hereunder:

"It is undoubtedly true, as Burn, J. and King, J. said in Ponnammal v. Sadayi Ammal, 1933 M.W.N. Cr. 233 and Sogmal v. Simachalam, 1936 M.W.N. Cr. 148 respectively, that a Magistrate who has discharged the accused has no jurisdiction to set aside his order of discharge. The only course is to take fresh cognizance of the case on a proper complaint. That does not, however, in our opinion, mean that the same complaint upon which the Magistrate originally took cognizance cannot be extracted from the old file and used as a foundation for the new trial. To requires complainant to make a copy of the old complaint or draft a new one, so that it can be said that an independent complaint has been filed seems to us quite unnecessary".

But the Division Bench was dealing with a case where soon after the order of discharge was made, the complainant appeared before Court and said that he had been inadvertently delayed and asked the Magistrate to again enquire into the matter. The Magistrate then examined the complainant and found that he had good cause for his absence and passed the order: "Take the case on file under section 355, Penal Code, against accused 1 and under section 352, Penal Code, against accused 2 and accused 3. The Magistrate also gave the case a fresh number. The trial proceeded till its termination