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1. The general question argued before us in this case was whether it was open to a Magistrate to hear a complaint which has been dismissed by an order under Section 203 of the Criminal Procedure Code, the order of dismissal not having been set aside by a higher Court.

2. In support of the view that the Magistrate had no such power, it was urged that a power to rehear or revise, like a right of appeal, was the creature of statute and that, in the absence of express statutory provisions conferring such power, the power did not exist. I am not prepared to accept this proposition. It seems to me that the question whether there is a power to rehear must be determined with reference to the enactments which create and regulate the jurisdiction of the Magistrate. The Code confers upon a Magistrate jurisdiction to enquire into an alleged offence. Prime facie, therefore, such jurisdiction exists in the case of an alleged offence. It must be held to exist unless it appears that something has been done, or some event has occurred, which has the legal effect of depriving the Magistrate of this jurisdiction.

Davies, J.

24. I must express my entire concurrence with the judgment of Mr. Justice Subrahmania Ayyar to which I have nothing to add.

Benson, J.

25. In this case the Head Assistant Magistrate dismissed a complaint under Section 203, Criminal Procedure Code, on the ground that no offence was disclosed.

26. This opinion was wrong, and on the complainant explaining this to the Magistrate the same day, the Magistrate proceeded to rehear the complaint and deal with it on the merits.

27. The Sessions Judge thought he had no power to do so, unless and until the order of dismissal had been set aside by a superior Court under Section 437, Criminal Procedure Code. In support of this view he relied on the case in Mahomed Abdul Mennan v. Panduranga Row I.L.R. 28 Mad. 255 which follows the case in Weir, pp. 874, Queen-Empress v. Adam Khan I.L.R. 22 All. 106 and Nilratan Sen v. Jogesh Chandra Bhuttacharjee I.L.R. 23 Calc. 983 and requested that the commitment might be quashed.

28. The conclusion arrived at by the learned Chief Justice is in accordance with the view which I expressed when proposing a reference to the Full Bench, and having now had the advantage of hearing the question fully argued I think that that view is correct.

29. I then pointed out that in all the cases relied on by the Sessions Judge it was a different Magistrate of co-ordinate jurisdiction who entertained the second complaint, and that in the Allahabad case the Judges expressly guarded against its being supposed that they ruled that the same Magistrate might not re-entertain a complaint on sufficient ground being shown, and expressly I refrained from dissenting from a decision of their Court in that sense in Queen-Empress v. Puran I.L.R. 9 All. 85. The question was examined at great length by the Pull Bench of the Calcutta High Court in the case in Dwarka Nath Mondul v. Beni Madhab Banerjee I.L.R. 28 Cal. 652 (seven Judges) as regards Presidency Magistrates and in the case in Mir Ahwad Hossein v. Mahomed Askari I.L.R. 29 Calc. 726 (five Judges) as regards Presidency Magistrates, and in these it was decided (only one Judge in each case dissenting) that dismissal by a Magistrate under Section 203, Criminal Procedure Code, was no bar to a rehearing by the same Magistrate. They did not decide whether it would bar a rehearing by a different Magistrate.

39. I concur in the judgment of the learned Chief Justice and would direct the Sessions Judge to proceed with the trial.

Moore, J.

40. On the 21st July 1905 one Chinnaya Gounden presented a complaint to a Sub-Divisional Magistrate (Head Assistant Magistrate, Coimbatore). On the same day, the Magistrate examined the complainant under Section 200, Criminal Procedure Code, and then and there dismissed the complaint under Section 203, Criminal Procedure Code, on the ground that no offence had been committed. Later on the same day Chinnaya presented a petition to the same Magistrate in which he represented that his complaint was that the accused persons had committed forgery and prayed that that complaint might be taken on the file and enquired into. The Magistrate accordingly on the same day a second time examined the complainant under Section 200, Criminal Procedure Code, and having, as a result of that examination, ascertained that he had made a mistake in dismissing the complaint under Section 203, Criminal Procedure Code, on the 24th July made the following order : "The offence complained of falls under Section 467 of the Indian Penal Code besides the minor Sections 419 and 468, Indian Tonal Code. Forwarded to the Stationary Sub-Magistrate of Pollachi for enquiry and commitment to the Court of Session if a prime facie case is made out." The Sessions Judge has referred the case to this Court on the ground that the Magistrate had "no jurisdiction to revive the proceedings, and his order of 24th July referring the case to the Stationary Sub-Magistrate for enquiry was made without jurisdiction and did not give jurisdiction to the Sub-Magistrate." I have no hesitation in holding that the procedure adopted by the Magistrate was perfectly legal. I follow the decision in Dwarka Nath Mondul v. Beni Madhab Banerjee I.L.R. 28 Calc. 652 and in Mir Ahwad Hossein v. Mahomed Askari I.L.R. 29 Calc. 726 and dissent from that in Mahomed Abdul Mennan v. Pandurrnga Row I.L.R. 28 Mad. 275. I do not consider it necessary to give any reasons for arriving at this conclusion at any length as they are fully set out in the judgment just delivered by the learned Chief Justice with which I, in the main, concur. I wish, however, to state clearly in order to avoid all possibility of misunderstanding that the opinion that I have arrived at is with reference to the dismissal of a complaint under Section 203, Criminal Procedure Code, and that I avoid giving any opinion as to cases in which accused persons are discharged under Section 253 or 259, Criminal Procedure. I will now touch briefly on one or two of the arguments put forward in support of the proposition that the action of the Magistrate was contrary to law. It is pleaded that his procedure offends against the maxim nemo lis vexari, etc. This may be a good argument where an accused person has been discharged under Section 253, Criminal Procedure Code, or 259, Criminal Procedure Code; but it is clear that it has no application to a case where a complaint is dismissed under Section 203, Criminal Procedure Code. The persons against whom Chinnaya Gounden complained were in no way vexed in consequence of the complaint which the Head Assistant Magistrate dismissed under that section on the 21st July. Allusion has also been made to Section 250, Criminal Procedure Code. On referring to the wording of that section it will be found that the persons against whom Chinnaya Gounden complained could not have obtained compensation in respect to the complaint dismissed under Section 203 as they were not either discharged or acquitted. Another argument that has been advanced is that if it is declared that the action of the Head Assistant Magistrate in the present case was legal there will be nothing to prevent a Magistrate from dismissing a complaint every day for, say, a month under Section 203, Criminal Procedure Code, and at the end of that time committing the case to the Court of Sessions. It might be urged with equal force that there is nothing to prevent a third-class Magistrate in this Presidency from committing every petty case of assault or nuisance that comes before him to the Court of Sessions. To advance arguments such as this is to ignore the main principle on which the Criminal Procedure Code is based, namely, that it is the duty of a District Magistrate to see that all the Magistrates in the district exercise the powers conferred on them not only in accordance with law but also in an equitable and rational manner.