Velu Tayi Ammal and Others vs B. Chidambara Pillai

The only cases, so far as I know, in which a Magistrate is authorised by the Criminal Procedure Code to discharge a person whose conduct is

under inquiry before him are those provided for in Sections 209, 253, 259, 119 and 484 of the Code.

I am not concerned with Section 484, but it might be difficult, I think, to hold that Section 437 is applicable to the case of a person discharged

under that section.

The discharge under Sections 202, 253 and 259 is made before the accused is called on to establish his defence before a Court which is

competent to try and determine the case and in cases in which a charge must be drawn up before any order can be made against the accused or

penalty imposed upon him. Section 437 undoubtedly applies to disposals under Sections 253 and 259, and may be applicable to a disposal u/s

209 also. The discharge u/s 119 is a different matter. It may be made after the defence has been fully heard; no charge need be drawn up before

the case is disposed of u/s 118; and if the accused (as I call him for convenience) is in custody there is no discharge but an order of release.

The question is:-Does Section 437 apply to this case ? I think not. For the reasons which I am about to give, I think I shall give effect to the real

intention of the Legislature if I read the word '' discharged '' in Section 437 as equivalent to '' discharged within the meaning of Sections 209, 253

and 259 of the Code.'' It is clear to me that the Legislature would not have made a distinction between an order of release and a discharge if they

had not intended that the two should be regarded as different things. They have not made any such distinction in Sections 209, 253 and 259. If

then these two things are different, it is impossible, I think, to apply Section 437 to the ''discharge'' The Code does not authorise its application to a

release which is not a discharge, and it would be absurd to make the jurisdiction u/s 437 depend upon the question whether or not the accused (I

use the expression again for convenience only) was in custody at the time of the disposal of the case by the Magistrate. I am not prepared to

attribute such an absurdity to the framers of the Code, especially when, as here, it is easy by giving a non-technical sense to the word '' discharge ''

to bring the procedure in regard to inquiries under Chapter VIII into harmony with the provisions of the Coda in analogous cases.

There is no difficulty in holding that the ''discharge'' u/s 119 is merely a ''permission to depart.'' The word ''charge'' as applied to offences is used

in two senses in the Code. In Chapter XIX and in Sections 210 and 254 it is the formal statement of the case which the accused has to meet; in

Section 253 it is used in the popular sense of '' accusation.''

Similary '' discharge '' may have two meanings, and Section 119 indicates that its meaning in that section is non-technical. The record is

completed by the entry required by the section; the Magistrate then permits "" the person in respect of whom the inquiry is made"" to depart if he is

not in custody, and, if he is in custody, directs the custodian to give the necessary permission.

Now this may be done after the Magistrate has been satisfied, after hearing evidence for the defence, that the execution of a bond is

unnecessary, and it seems to me that it would be wrong in principle to permit a "" further inquiry "" in such a case. The inquiry is into conduct and so

is analogous to an inquiry into an offence; and it is to be made in the manner prescribed for conducting the trial of an offence [S. 117(2)].

When a person accused of an offence has, by evidence adduced on his behalf, satisfied a Magistrate competent to try him and punish him if he is

guilty, that he ought not to be convicted, the Code does not contemplate a ''further inquiry '' by order of a superior Magistrate. The High Court

alone can interfere in that case.

I am unable to see any reason why a difference should be made in the analogous case of an inquiry under Chapter VIII. When, after hearing the

defence evidence, the Magistrate is satisfied that the execution of a bond is unnecessary, a further inquiry into the case is, to my mind, an

inappropriate remedy if the Magistrate is thought to be wrong.

It may be that the law does not prohibit the taking of new proceedings under the chapter on the same materials, but this is a different matter on

which I need not express an opinion.

I am thus fortified in the conclusion at which I had arrived by the process of reductio ad absurdum, by a consideration of the matter on the

general principles of the Code, and I have no doubt that the Legislature did not intend and that I ought not to hold, that the jurisdiction given by

Section 437 should be applied to cases under Chapter VIII, at any rate where, before making an order u/s 119, the Magistrate has called on the

person, into whose conduct the inquiry is made, to establish his defence. It might, perhaps, be possible by analogy to apply Section 437 to

disposal u/s 119, made in circumstances resembling those in which a discharge is made u/s 253, but the case before me is not such a case. The

defence has been heard, and the Magistrate is satisfied that a bond is unnecessary.

I must, therefore, set aside the order of the District Magistrate as made without jurisdiction.

I am asked on behalf of the original complainant (so to style him) to interfere u/s 439, but the Public Prosecutor does not support this request,

and I agree with him that it is unnecessary to order a de novo inquiry. There is clearly nothing to prevent the taking of fresh action under Chapter

VIII if the conduct of the petitioners, perhaps, is such as to render that course necessary or desirable.