The judgment emphasizes the inherent powers of the court to do the right and undo a wrong in the administration of justice, as well as the right of the police to reopen the investigation if fresh facts come to light.

MOIDU, J.

The question that arises for determination in these criminal references is whether the trial Magistrate has the right to dispense with the presence of a person and remove him from party array if it is conclusively established that he is not an accused person charged with any offence in the case under enquiry or trial.

2. These references came before us on account of an order of a learned single judge of this court under Section 3 of the Kerala High Court Act, 1958. The District Magistrate (Judl). Tellicherry referred these cases under Section 438 Criminal P.C. to this Court to pass an order in accordance with law setting aside the order of the Sub Magistrate, Cannanore passed on 30-11-1971 in C.C. 984/1971 and C.C. 985/1971.

3. On the strength of a First Information statement of one Assanand Kundan two separate crimes were registered at the police station. Pavangadi on 25-5-1970. There were 7 accused persons in the first crime and 5 in the other in each of which the offences alleged to have been committed were under Sections 143, 147 and 323 read with Section 149 of the Penal Code. After investigation, a report under Section 170 Criminal P.C. and final report under Section 173 Criminal P.C. had been filed before the Sub Magistrate by the Sub Inspector Pavangadi in each of these cases when the Magistrate took these cases to file in C.C. 984/71 and C.C. 985/71 and took cognizance of the offences on sending summons to the accused persons in each of these cases. When they appeared before the Magistrate on 30-10-1971 they had been supplied with all the documents which the prosecution wanted to reply upon in the prosecution of the case against them. From 30-10-1071 to 30-11-1971 these cases underwent few adjournments during which time the Magistrate the accused persons the counsel who appeared for them and even the Sub Inspector who laid the charge against the accused persons realised that the 5th accused described as Narayanan, son of Raman Peruvannan was not the real accused and that his name was wrongly entered in the police charge.

The real 5th accused according to them was no Narayanan, son of Nanivil Raman. The Sub Inspector had also filed a report before the Magistrate on 24-11-1971 that summons was wrongly issued to Narayanan, son of Raman Peruvannan instead of Narayanan son of Nanivil Raman and therefore he submitted that fresh summons had to be issued to the latter person. He had also expressed his regret for entering a wrong name in the charge-sheet which he laid before the Court. On receipt of this report and on correct understanding of the identity of the accused person, the learned Sub-Magistrate passed the following order on 30-11-1971 in each of these cases:-

"All the accused present. The name of A5 is one Narayanan, son of Nanivil Raman. So A5 before the Court is not the wanted accused as per the report of Sub Inspector. There is no charge against A5 and he has wrongly come before Court. So he is discharged from this case. Issue summons to the real A5 in the address. Correct the name of the accused in the charge-sheet."

On the strength of this order the presence of Narayanan, son of Raman Peruvannan was dispensed with and summons was issued afresh to Narayanan, Son of Nanivil Raman. In response to that summons Narayanan son of Nanivil Raman also appeared before the Magistrate as the real 5th accused in both the cases.

4. The District Magistrate, Tellicherry on the basis of news-paper reports that a wrong person had been summoned to the court and that the police took such a long time to realise the mistake as to the identity of the accused in question called for the records in these cases from the Sub-Magistrate the examined them under Section 435 (1) Criminal P.C. The District Magistrate was of the opinion that Narayanan son of Raman Peruvannan should not have been sent away merely under an order "Discharged" after charge was laid against him and that the Magistrate acting under Section 251-A (