DEBABRATA MOOKERJEE, J.

( 1 ) THIS is a Rule calling upon the District Magistrate of Midnapur and the opposite party to show cause why certain proceedings pending against the petitioners under Sections 147 and 379 of the Indian Penal Code' should not be quashed or why such other or further orders should not be made as, to this Court might seem fit and proper.

( 2 ) A petition of complaint was filed on the 16th December, 1954, in respect of an occurrence which had taken place on the 13th of that month, in the Court of the Sub-Divisional Magistrate of Midnapur. On receipt of the complaint, the learned Magistrate did not take cognisance of the offence disclosed, but directed the police to do so under the provisions of Section 156 (3) of the Code of Criminal Procedure. The police thereafter took cognisance and held an investigation which resulted in a final report. Directly after the submission of the final report, the complainant submitted a Naraji petition, and the learned Magistrate, without examining the complainant on the Naraji, directed a judicial enquiry to be held into the complaint. Some evidence was taken at that enquiry, and eventually the present petitioners, who were the persons complained against, were summoned and placed on trial. The trying Magistrate discovered that there had been a defect in the proceedings which resulted in the summons on the petitioners and 'discharged' them under Section 253 (2) of the Code of Criminal Procedure. This order of discharge was made on the 9th August, 1956.

( 3 ) THE learned Magistrate who made the order of discharge made it clear that the judicial enquiry had been directed into the complainant's Naraji without previously examining the complainant on the Naraji. In this view, he held that the proceedings had no foundation in law, and without referring to the merits of the matter, he made the order of discharge.

( 4 ) IT appears that on the 28th August, 1956, a fresh complaint was filed before the Sub-Divisional Magistrate, and the subject-matter of the complaint was identical with that of the previous one and it related to the identical incident. This time the learned Magistrate examined the complainant on oath in accordance with law, and thereafter he directed the issue of process for the appearance of the petitioners. In obedience to the process issued the petitioners appeared in the Court of the Magistrate and thereafter applied to this Court and obtained the present Rule.

( 5 ) THE main ground of contention before me is that the present proceedings are unsustainable in view of the fact that the identical complaint had been disposed of by the order of discharge made by the previous Magistrate on the 9th August, 1956. It is argued that this order of discharge was not set aside in accordance with the procedure prescribed by law and the present complaint is described as a subterfuge by means of which the previous complaint is sought to be revived. I do not think this contention can prevail.

( 6 ) STRICTLY speaking the order was not an order of discharge under Section 253 of the Code. In a warrant case discharge is provided for by Section 253 of the Code. Sub-section (1) of that section says that if, after taking all the evidence referred to in Section 252 and making such examination of the accused as the Magistrate thinks necessary to make, it is found that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate in such case shall discharge the accused. Sub-section (2) provides that nothing in this section will be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if for reasons to be recorded by him, he considers the charge to he groundless. An order under Section 253 appears to involve consideration of the merits of the case, and the Magistrate is given the power to discharge an accused person, if after hearing some evidence, it appears that the charge brought against the

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