( 1 ) THIS is an application in revision by four persons, namely, Gurcharan, Bhagwan, Jagarnath and Balram, who have been convicted under Section 379, I. P. C. , by a first class Magistrate of ghazipur. Gurcharan and Balram were sentenced to 9 months rigorous imprisonment and bhagwan and Jagarnath to 6 months rigorous imprisonment. Their conviction and sentences have been upheld in appeal by the learned Sessions Judge.

( 2 ) IT appears that on the 13th October, 1953 a complaint was filed by Smt. Biranjia, widow of mahadeo Koeri, against the applicants that they had cut her crop in plot No. 909 on the 23rd august 1953 at about 2 p. m. and had thereby committed theft. The applicants denied that they had cut the crop. It may be mentioned here that prior to this complaint Smt. Biranjia had filed a report under Section 145/506, I. P. C. , against the applicants at the police station. Subsequent to this report Smt. Biranjia filed a complaint before the District Magistrate, Ghazipur, in respect of the same occurrence. The District Magistrate called for a report from the police and after a perusal of the report was not satisfied that the prosecution case was correct. He, therefore, dismissed the complaint. It was after dismissal of this complaint that the complaint which gave rise to this case was filed in respect of the same cause of action before another Magistrate. That Magistrate was of the opinion that the case had not been properly dealt with by the District Magistrate and injustice had been done to the complainant. He, therefore, after a consideration of the evidence which was produced by the complainant, found that the charge under Section 379, I. P. C. had been established and convicted the applicants.

( 3 ) IT has been contended on behalf of the applicants that no fresh complaint could be filed in respect of the same cause of action against them before another Magistrate when an earlier complaint in respect of the same cause of action had been dismissed by the District Magistrate. In support of this contention learned counsel for the applicants has relied on the following cases. The first case is reported in Chandi Ram Verbamal v. Emperor, 23 Cri LJ 737: (AIR 1922 Sind 23) (A ). It was held by the Judicial Commissioners Court, Sind, that when a case was withdrawn under section 494 of the Criminal Procedure Code and the accused had been discharged on the ground that the evidence disclosed no case against him, it was not competent for another Magistrate to proceed against the accused on the ground that there was a prima facie case against him except in accordance with the provisions of Section 437 of the Criminal Procedure Code. It was further held that it was contrary to sound principles that one Magistrate of co-ordinate Jurisdiction should, in effect and in substance, deal with a complaint which had already been dismissed by a competent Tribunal of co-ordinate authority,

( 4 ) THE next case is of Rama Nand v. Sheri, AIR 1934 All 87 (B ). It was held in this case that an order of discharge could not be a bar to the trial of the person discharged for the same offence of which he was discharged, but it would be highly inconvenient to allow successive trials of complaints based on same allegations of different Magistrates and different Courts, after a previous complaint on the same facts by the same complainant against the same accused had been dismissed by a Magistrate of competent jurisdiction. It was further held that the trial of such a complaint by a different Magistrate was barred.

( 5 ) THE last case is of Nanda v. Emperor, 28 Cri LJ 536: (AIR 1927 All 815) (C ). It was held in this case that where a competent Magistrate had discharged an accused person another tribunal with exactly the same powers could not re-open the matter on a fresh complaint made to it on the same facts.

( 6 ) IT appears from an examination of the above cases that where an accused person has been improperly discharged by a Magistrate the