ORDER :- The learned Sessions Judge has made this reference to quash the order of the First Class Magistrate, Manipur, Sri B. Ahmad, reviving the Criminal Case No. 17 of 1959 after its dismissal under S. 259 Cr. P.C.

2. The short facts are as follows :

On 17-1-1959, the respondent filed a complaint under S. 430 I.P.C. against the petitioners and after Police Report and after summoning the petitioners the case was posted to 10-8-1959. On that date the complainant was absent and the Magistrate passed the order that the accused be discharged under S. 259 Cr. P.C. Shortly thereafter, the respondent appeared in Court and filed a petition stating that he was present in the Court compound, but that be did not hear the case being called out and that he heard only just then that the case had been struck off because of his absence. He, therefore, requested that the complaint may be restored. Thereupon the Magistrate passed another order on the same date that the explanation given by the complainant for his non-appearance appeared quite possible and was accepted and that the dismissal order was therefore set aside and the case restored to file and he ordered issue of summons to the parties.

3. When the petitioners received the summons they filed a revision petition on 23-12-1959 before the Sessions Judge stating that the learned Magistrate acted wrongly in restoring the complaint and in setting aside the order of dismissal and that he had no power to do so under the Code of Criminal Procedure. The learned Sessions Judge agreed with the petitioners and has made this reference stating that there was no provision in the Code of Criminal Procedure allowing a Court to set aside the order of dismissal and discharge of the accused under S. 259 Cr. P.C. and that the remedy for the complainant was only by filing a fresh complaint. He relied on the decision Bhagavan Sahai v. Moti Lal, AIR 1953 All 402. He refused to rely on the ruling in re Wasudeo Narain Phadnis, AIR 1950 Bom 10 and he has made this reference.

4. It may be mentioned here that it was a warrant case, that no charges had yet been framed and even the preliminary enquiry had not commenced and the dismissal of the complaint and the discharge of the accused by the Magistrate was not on the merits of the case, but merely on the ground of the absence of the complainant. The order of the Magistrate is not therefore a judgment within the meaning of S. 366 Cr. P.C. and therefore S. 369 Cr. P.C. providing that the Court was not to alter its judgment will not apply to this case. The question for decision is whether a Magistrate was competent to revive a warrant case triable under Chapter XXI Cr. P.C. in which he had discharged the accused persons under S. 259 Cr. P.C.

5. This matter has been considered exhaustively by a Full Bench of seven Judges of the Calcutta High Court in the case Dwarka Nath Mandul v. Benimadhab Banerjee, ILR 28 Cal 652 and the question was answered in the affirmative. In the decision Emperor v. Chinna Kakappa Gounden, ILR 29 Mad 126, a Full Bench of the Madras High Gourd approved of the Calcutta decision and held that the dismissal of a complaint under S. 203 Cr. P.C. will not operate as a bar to the rehearing of the complaint by the same Magistrate even when such an order of discharge has not been set aside by a competent authority. To the same effect is another Full Bench decision of the Calcutta High Court in Mir Ahwad Hossein v. Mahomed Askari, ILR 29 Cal 726.

6. The learned Sessions Judge has referred to a decision AIR 1953 All 402. But the facts in that case were a little different. There, the accused were discharged for the default of appearance of the complainant on a certain day after the trial had proceeded to some extent and the complainant on the same day filed a fresh complaint and the Magistrate after issue of notice to the accused persons had posted the fresh complaint to another day for recording evidence.

On the latter day, an application, was filed stating tha

Click Here to Read the rest of this document