An order of discharge under Section 259 of the Code of Criminal Procedure is not a judgment and the Magistrate has jurisdiction to revive the complaint and re-summon the accused after setting aside the order of discharge.

( 1 ) THE short question to be decided in this case is has the Magistrate Jurisdiction to revive the complaint which has been dismissed for default of appearance of the complainant and re-summon the accused who has been discharged under section 259 of the Code of Criminal Procedure ?

( 2 ) V. P. Dewan complainant had filed a complaint under section 500, Indian Penal Code, against Banarsi Dass Sethi and Raj Kumar Sethi and the Magistrate issued process against the acoussed. On February 13, 1967, which was one of the dates of hearing before the Magistrate, the complainant was about with the result that the Magistrate dismissed the complaint and discharged the accused under section 259 of the Code of Criminal Procedure and passed the following short order :-

"accused with counsel present. Complainant has not appeared despite reapeated calls. It is now 2. 15 P. M. The case is under section 500, Indian Penal Code, which is compoundable and noncognizable. The case is dismissed under section 259, Criminal Procedure Code. Accused are discharged. "shortly after the order had been passed the complainant appeared and made an application for restoration of the case, which was accepted and the following ex parte order was passed :

"the case is revived. Let the accused be summoned for 3rd March, 1967. "the accused filed a revision petition against the order reviving the complaint to the court of Session. The learned Additional Sessiors Judge made a recommendation to this court that the said ex parte order reviving the complaint and summoning the accused be set aside.

( 3 ) WHEN this matter came up before one of us it was found that there was a conflict of opinion on this question between various High Courts and it was desirable that pronouncement by a larger Bench of this question. It is in these circumstances that the matter has come up before us.

( 4 ) THE contention of the learned counsel for the petitioners is that the Magistrate, after he had pronounced his judgment dismissing the complaint and discharging the accused had no jurisdiction to review the same and revive the complaint. According to the learned counsel, the Magistrate had become functus officio alter pronouncing the judgment and could not review the same and could correct clerical errors only. It is thus contended that the only remedy open to the complainant was to make a fresh complaint and request the Magistrate for fresh proceedings under section 200 onwards of the Code of Criminal Procedure.

( 5 ) THE learned counsel for the State contends that the order of the Megistrate dismissing the complaint and discharging the accused, under section 250 of the Code of Criminal Procedure was not a judgment and thus the Court had jurisdiction to revive the complaint and resummon the accused. Chapter XXVI of the Code of Criminal Procedure deals with "judgment". Section 366 of the Code deals with the mode of delivering judgment by a Criminal Court. Section 367 of the Code deals with the language of the judgment and contents of the same. It lays down the unless otherwise expressly provided by this Cod", the judgment will contain the point or points for determination, the decision thereon and the reasons for the decision and shall also be signed and dated by the Presiding Officer in open court at the time of pronouncing it. Section 368 of the Code deals with the sentence of death. Section 369 of the Code lays down that no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error. The rest of the sections in this Chapter are not relevant for our purposes.

( 6 ) THE Code of Criminal Procedure does not anywhere define what judgment is. However, section 367 of the Code lays down as to ^ what shall be the contents of a judgment. According to this section, the judgment should contain the point or points for determination in the case before the Court and the decision on those points The Court is also required to give reasons why it