Das, J.:— This is a reference by the Second Additional Sessions Judge of Patna in respect of an order passed by the learned Subdivisional Magistrate of Dinapur, dated the 4th March, 1948, in two criminal cases, one bearing no. 158C, and the other 159C of 1947. The facts leading up to the order under reference are shortly stated below. The petitioner before the learned Sessions Judge was Ram Narayan Choubey, an employee of one Haroon Taj Mohammad. For the sake of convenience I shall refer to him as the petitioner. The opposite party, Mr. P.C Jain, is a Factory Manager of the Jagdishpur Zamindari Company, Ltd. The South Bihar Sugar Mills, Ltd., Bihta, leased out the sugar section of their mill to the Jagdishpur Zamindari Company, Ltd., but the old stock of molasess was leased to Harooh Taj Mohammad. On the 7th of May, 1947, the opposite/party gave a first information to the Officer In-charge of Bihta police-station alleging that the petitioner and another person called Ram Chander were seen running away when some men deputed by the Jagdishpur Zamindari Company were watching the tanks from which some 9,000 mds of molasses had been previously stolen. Before the local police could submit a report as a result of the investigation into the allegations made in the first information, the, opposite party filed two petitions of complaint on the 16th of May, 1947. In one of the petitions of complaint the allegations were the same as in the first information. In the other petition of complaint it was alleged that the petitioner and two other persons had committed theft of molasses worth Rs. 4,500. In the first petition of complaint in which the allegations were the same as in the first information, a prayer was made for taking action against the accused persons for offences under sections 426 and 457 Indian Penal Code. In the second petition of complaint a prayer was made for taking action against the accused persons for offences under sections 379 and 411 Indian Penal Code. The first petition of complaint gave rise to case no. 158C and the second petition gave rise to case no. 159C of 1947. The learned Subdivisional Magistrate, after examining the complainant in both the cases, directed the Sub-Inspector of Police, Bihta, to investigate into the allegations made and submit a report thereon. On the 18th of May, 1947, the local police submitted a final report stating that the allegations were maliciously false and making a prayer that the complainant should be prosecuted for making a false complaint. This final report came up for consideration by the learned Subdivisional Magistrate in case no. 158C on the 21st of June, 1947. Before that date the complainant had filed a protest petition on 18th June, 1947. On the 21st of June, 1947, the learned Subdivisional Magistrate, accepted the final report submitted by the police and dismissed, the complaint in case no. 158C under the provisions of section 203 of the Code of Criminal Procedure. Apparently, no order was passed on the protest petition filed by the complainant on the 16th of June, 1947. In case no. 159C the final report of the Police was put up on a much later date, and on the 27th of August, 1947, the learned Subdivisional Magistrate passed the following order—

“Final report maliciously false received under section 379/411 I.P.C, Complainant will show cause for his prosecution under section 211 I.P.C on 18th September, 1947, as a report for prosecution under section 211 I.P.C has also been received”.

In case no. 159C also the complainant had filed certain petitions from time to time for taking necessary action in respect of the sample of molasses. The order dated the 27th August, 1947, passed in case no. 159C, to which I have already made a reference, was passed by Mr. A.J Khan. Mr. Khan was transferred and was succeeded by Mr. Huda, who was also transferred. The matter was then put up before Mr. Ghosh, the present Subdivisional Magistrate of Dinapur. On the 1st of November, 1947, the petitioner filed a petition praying for an enquiry under section 476 Cr. P.C and making a complaint against the opposite party for an offence under section 211 Indian Penal Code. The present Subdivisional Magistrate dealt with both the cases together and on the 4th of March, 1948, he passed the following order—

“It will appear from the records that the complaint filed on 16th May, 1947, was dismissed, after considering the final report (the case having been sent to the police on 21st June 1947). But the complainant had filed a protest petition on 16th June, 1947 which has not yet been disposed of. Therefore, the question of revival and the necessary law points do not arise. I have gone through the police reports and also heard lawyers. I consider that a regular trial in court is the only means of finding out in this case whether the complainant made a maliciously false complaint and if that be the finding in court, he should, of course, be prosecuted under section 211 I.P.C Cognizance is therefore taken. Summon the accused to 21st March 1948. This disposes of the points arising from case no. 158C of 1947 As regards case no. 159C of 1947, no action was taken either under section 203 or under section 204, Cr. P.C On perusal of the Order sheet of Case no. 159C it appears that before the complaint was dismissed a show cause notice was issued to the complainant. Complainant had already filed protest petition in case no. 158C. As I have noted above, after considering the police reports and hearing the lawyers of the parties, I deem it necessary to get the points thrashed out in court and it is only then it will appear whether the complaint in case no. 159C of 1947 was maliciously false and if that be the finding, the complainant, of course, will be prosecuted under section 211, I.P.C Cognizance is therefore taken. Summon the accused.”

It is against the aforesaid order of the learned Subdivisional Magistrate that the present reference has been made. We have heard learned Counsel for the petitioner as well as for the opposite party. Two main questions arise for consideration. The first question is if the learned Subdivisional Magistrate had jurisdiction to revive the two complaints and take cognizance thereon, when his predecessor in office had already dismissed one of the complaints by an express order and the other complaint by implication. The second question is not one of jurisdiction but of propriety. Assuming that the learned Subdivisional Magistrate had jurisdiction to revive the old complaints and take cognizance thereon, was it proper for him to do so in the circumstance of the present case? Learned Counsel for the parties have addressed us on both these questions.

Mr. S.N Sahay appearing for the petitioner has put his argument on the first question in a restricted form. His contention is that the Magistrate can take cognizance on a fresh complaint, even though an earlier, complaint on the same facts has been dismissed; but in the absence of a fresh complaint, the Magistrate has no jurisdiction to revive an old complaint and take cognizance thereon. He has argued with some vehemence that a Magistrate cannot go on changing his mind, dismissing the complaint once and reviving it again at his own sweet will. According to his view, the first complaint is finished and disposed of by the order of dismissal, and any further action, if required to be taken, must be on a fresh complaint. The question has been the subject of several decisions, including a decision of this court. The question was considered at great length by a Full Bench of the Madras High Court in Emperor v. Chinna Kalippa Qounden. It was pointed out there that an order under section 203 of the Code of, Criminal Procedure was not a judgment to which the provisions of section 369 would apply; nor will the principle of autrefois acquit apply as there is no trial when the complaint is dismissed under section 203 of the Code of Criminal Procedure. The leading judgment was given by Sir Araold White, C.J, who specifically dealt with the question, of a fresh complaint and said as follows— “I do not think that; in substance, with reference to the question of jurisdiction, any distinction can be drawn between entertaining a fresh complaint and rehearing the original complaint. The argument that the Magistrate having made the order of dismissal, is functus officio applies equally to both cases, and the formality of putting in a fresh complaint cannot be said to, create a jurisdiction, which, without such formality, a Magistrate would not have possessed.” If I may say so with respect the view expressed above is correct. In Jyotindra Nath Daw v. Hem Chandra Daw it was observed as follows—“There is no doubt that the Deputy Magistrate who had dismissed the complaint under section 203 of the Criminal Procedure Code could legally revive it after dismissal under section 203 Criminal Procedure Code.” In that case the Complainant had filed a petition before the Magistrate who had dismissed the complaint praying for revival of the case. But the decision of their Lordships was not based on the fact that a petition had been filed praying for revival of the case. The observation of their Lordships, which I have quoted above, shows that they took the view that the Magistrate who had dismissed the complaint under section 203 of the Criminal Procedure Code could legally revive it after dismissal under section 203. This decision was approved in Janakdhari Singh…Accused; v. Emperor…Opposite Party., a decision of this Court. Though the facts of that case were different, their Lordships approved of the principle laid down in Jyotindra Nath Daw v. Hern Chandra Daw. They stated that the subordinate court had jurisdiction, even apart from the revisional order of the Sessions Judge, to revive a complaint which had been dismissed under section 203 Indian Penal Code. The same view has been expressed in other decisions as well, which I need not examine in detail. I do not think that the jurisdiction of the Magistrate necessarily depends on the filing of a fresh complaint; and the Magistrate has jurisdiction to revive the old complaint dismissed under section 203 Criminal Procedure Code. In the case before us the question of jurisdiction depending on a fresh complaint is of academic interest only. As a matter of fact, there was a protest petition which could be treated as a fresh complaint and the Magistrate could take cognizance on it, I do not, therefore, think that there was any absence of jurisdiction in the present case, and the Order of the learned Subdivisional Magistrate cannot be attacked on that ground.

On the second question, I think, the petitioner is on surer ground. It is now well settled that although, a previous order dismissing the complaint is no bar to, the institution of a fresh case against the same accused, still a new complaint in respect of the same offence should not be entertained, Unless there, are exceptional circumstances, e.g, where new facts which could not, with reasonable diligence, have been brought forward in the previous proceedings are adduced, or there was some manifest error in the previous proceedings, or the previous Order was passed on an incomplete record, or a misunderstanding of the nature of the complaint, etc. I have not desire to give an exhaustive list of the circumstances in which a new complaint may be entertained, or the old complaint revived despite an order, of dismissal under section 203; but there are many decisions which have laid down that a fresh complaint should be entertained only in exceptional circumstances, Learned Counsel for the petitioner has drawn our attention to some of these decisions; Allah Ditta v. Karam Bakhsh; and Mohammad Din v. Mehtab Din. In a decision of this Court in Biso Ram v. Emperor, the following observation was made— “True it is that an order of discharge under section 494(a) or under section 253 in a warrant-case does not necessarily prevent the Magistrate from taking cognizance of a complaint on the same facts, but an order of discharge cannot be set aside and prosecution started afresh, unless there are new materials before the Magistrate which were not before him formerly and upon those materials there is a possibility of a conviction of the accused persons.” These observations show a reference to only one of the circumstances on the existence of which a fresh complaint may be entertained; but the principle that a fresh complaint or a revival of the old complaint should be allowed in exceptional circumstances only is implicit in those observations. In the case before us, the learned Subdivisional Magistrate has not referred to any exceptional circumstances. His order gives one the impression that the only reason why he revived the Old complaints was that he did not wish to hold an enquiry under section 476 of the Code of Criminal Procedure, but wanted the petitioner to be put on trial so as to determine if the allegations of the opposite party were maliciously false or not. In my opinion, this was an entirely wrong view of the matter. Whether a particular person should be put on trial on the basis of a complaint made against him depends on if a prima facie case of the commission of an offence has been made out or not a person is not put on trial for the purpose of finding out if the complainant should be prosecuted for an offence under section 211 or not. The Magistrate who had earlier dealt with these two complaints, had all the materials before him. He had the two petitions of complaint; he had the final reports submitted by the local police and he had also the protest petition filed by the opposite party. On a consideration of all these materials he dismissed one of the complaints by an express order under section 203 and with regard to the other complaint, he passed an order, asking the opposite party to show cause why he should not he prosecuted for an offence under section 211 Indian Penal. Code. No new materials were placed before the Subdivisional Magistrate who had to deal with the petition filed by the petitioner for an enquiry under section 476. I do not think that the learned Subdivisional Magistrate properly exercised his discretion in directing the revival of the old complaints, his purpose being merely to avoid an enquiry under section 476 Criminal Procedure Code. The learned Subdivisional Magistrate does not say that any new materials have been placed before him or that any manifest error had been made by his predecessor; nor does he say that the previous order was passed on an incomplete record or that there was any misapprehension or misunderstanding on the part of his predecessor in office. In these circumstances the order passed by the learned Subdivisional Magistrate on the 4th March, 1948, was, in my opinion, an improper order, and a wrong exercise of the Magistrate's jurisdiction.

Learned Counsel for the parties have intimated to us in course of the hearing that the differences between the parties have now been amicably settled and the parties do not desire any further action to be taken, either in the matter of the two complaints filed by the opposite party or in the matter of the application filed by the petitioner for an enquiry under section 476 Criminal Procedure Code. The learned Magistrate may well have regard for this circumstance and drop all further proceedings between the parties.

For the reasons given above, I would aceept the reference and set aside the order of the learned Subdivisional Magistrate, dated the 4th of March, 1948.

Narayan, J.:— I agree.

K.D

Reference accepted.