Kalastri Mudali and Another vs Rex

Jackson, J.—The petitioner seeks to revise the order of the District Judge, Salem, complaining against him u/s 476, Criminal Procedure

Code, for offences under Sections 467 and 471, Indian Penal Code.

On 15th November, 1929, a private party applieed to the District Munsif, Salem, praying that he would lodge a complaint u/s 476. This was

dismissed on 27th February, 1930 and there has been no appeal.

Then on the same day 27th February, 1930, another petition was put in, and ultimately dismissed. On appeal from that dismissal the District

Judge, Salem, has complained u/s 476.

The question is whether the petition of 27th February and the consequent appeal were competent after the petition of November was dismissed.

This opens up a field which is occupied by two schools of thought. There are those who hold that apart from his statutory powers and limitations

a Magistrate is circumscribed by the maxim ""nemo bis vexari"" and he cannot expose an accused person to jeopardy twice; and those who hold

that if not expressly forbidden a Magistrate can act within the powers given by statute, as often as he likes irrespective of his previous action. The

two views are fully expressed in Emperor v. Chinna Kaliappa Goundan 1 when the latter view prevailed by a bare majority of 3 to 2. Since then it

has always been the law in this presidency at least that a Magistrate can dismiss a complaint u/s 203, and re-hear it on the following day. It would

seem to follow that he is equally competent to dismiss; an application to complain and to re-entertain it.

As the Chief justice points out on page 133 of Emperor v. Chinna Kaliappa Goundan ILR (1905) 29 M. 126 : 16 M.L.J. 79, if a discharge

does not operate so as to prevent a revival, a fortiori the dismissal of a complaint will not. Subramania Aiyar, J., argues that it is unjust that a

discharged man should be again put upon his trial, which may be unexceptionable as an abstract principle of law (page 137), but the Code allows

it, and a Bench of this Court in Emperor v. Maheswara Kondaya ILR (1908) 31 M. 543 clearly lays down that a Magistrate may himself re-open

a prosecution although he has discharged the accused. It is argued that when the Code expressly provides an appeal, it cannot be assumed that the

Magistrate can proceed in contravention of his previous order. The same argument is not inapplicable to discharges on complaints. Why should

Section 436 provide special machinery by way of Revision, if the Magistrate can himself override his order? The answer would seem to be that the

Magistrate is left free to change his mind, and at the same time the party, if the Magistrate will not change his mind, may have recourse to superior

authority.

Limitation will run from the order on the second application; and it cannot be said that the appeal to the District Judge was time barred. There is

no need therefore to discuss the applicability of Section 5 of the Indian Limitation Act as though the appeal were against the first order of dismissal.

That applications u/s 476 can be re-heard in spite of a previous dismissal has been held in Harekrishna Parida v. King-Emperor ILR (1929) 8

Pat. 736.

The petition is accordingly dismissed as regards 1st petitioner. As regards the abettor, 2nd petitioner, the petition is allowed. Vide judgment in

C.R.P. No. Sengoda Goundan and Another Vs. Vayyapuri Goundan, .