We think that the question raised in this case should be decided by a Full Bench. It is this—whether, a complaint having been dismissed by a Sub-Divisional Magistrate under Sect. 203, Criminal Procedure Code, a Sub-Magistrate has jurisdiction to entertain a charge-sheet founded on a subsequent complaint, the order of dismissal not having been set aside: The ruling in Emperor v. Chinna Kaliappa Gounden (1) is limited expressly to the case of the same Magistrate re-entertaining a complaint. Mahomed Abdul Merman v. Panduranga Row is a case of different Magistrates, though the head-note states the decision in wider terms: see also Grish Chunder Roy v. Dwarka Dass Agarwallah and Queen-Empress v. Adam Khan . But the decisions are not uniform—Vide In re Mahadev Laxman (5). It is desirable, though a case of this kind must be of very rare occurrence—that the question should be authoritatively settled. We therefore refer the above question for decision by a Full Bench.
This petition coming on for hearing in pursuance of the above order, the Court expressed the following.
OPINION.
The petitioners are two out of five persons who have been charge-sheeted by the Police before the Sub-Magistrate of Perundurai for offences under Sects. 419 and 467, Indian Penal Code and 82 of the Registration Act. A sale-deed had been presented for registration to the Sub-Registrar of Kunnathur on 12th January this year. It purported to have been executed by one Kanni Moopan and by his mother on behalf of his minor brother and was registered the next day. On 28th January Kanni Moopan complained to the Sub-Registrar that he had not executed the deed and that there had been false personation. The Sub-Registrar forwarded his complaint to the District Registrar, who on 2nd February directed the Sub-Registrar to advise Kanni Moopan to complain to a Magistrate. The next day, somewhat inconsistently, he sent a copy of the Sub-Registrar's letter and of the complaint to the Police Inspector at Erode, who on 4th or 5th ordered the case to be registered for investigation. In the meantime, Kanni Moopan, in compliance with the advice given him on 2nd, had lodged a complaint before the Sub-Divisional Magistrate, Erode, who proceeded to dismiss it summarily, mainly on the surprising ground that the complainant knew nothing about the contents of the sale-deed in question. As his complaint was that he had not signed the deed and that some one had personated him before the Sub-Registrar, his ignorance of its contents was nothing more than was to be expected. On 22nd, the Police put in their charge-sheet, which was taken on file by the Sub-Magistrate of Perundurai. In May the case was adjourned at the request of the petitioners on the allegation that they were going to move the High Court for a transfer. On 15th May they informed the Court that they had so moved. That was untrue. What they had done was to move the High Court to quash the proceedings on the ground that the Sub-Magistrate had no jurisdiction to entertain the charge-sheet, the Sub-Divisional Magistrate's order dismissing Kanni Moopan's complaint not having been set aside. Jackson, J., referred the application to a Bench, which, in its turn, referred it to a Full Bench for decision of the following question:
Whether, a complaint having been dismissed by a Sub-Divisional Magistrate under Sect. 203, Criminal Procedure Code, a Sub-Magistrate has jurisdiction to entertain a charge-sheet founded on a subsequent complaint, the order of dismissal not having been set aside.
The leading case on the point, as far as this Court is concerned, is Emperor v. Chinna Kaliappa Gounden . That was of course a case in which a dismissed complaint was re-entertained by the same Magistrate as had dismissed it and the majority of the Full Bench held that he had jurisdiction to do so. It had previously been decided in Mahomed Abdul Merman v. Panduranga Row that a Magistrate had no power to entertain a complaint that had already been dismissed by another Magistrate of co-ordinate jurisdiction. In the case we are now considering the prior dismissal was by a Magistrate of superior jurisdiction, but that, in our opinion, makes no difference in principle—apart from the fact that, as far as the subject-matter of the particular complaint was concerned, their jurisdiction was co-ordinate. A very considerable number of rulings has been cited before us, to most of which we consider it unnecessary to refer. What in effect, Mr. Jayarama Ayyar has pressed us to say is that Emperor v. Chinna Kaliappa Gounden was wrongly decided. We see no reason to do anything of the sort. It is curious, no doubt, that the Code, while empowering superior Courts to direct further enquiry into complaints that have bean dismissed under Sect. 203—which would seem to supply a complete and adequate remedy against improper dismissal—should, at the same time, allow a complainant and a Magistrate to dispense with that formality and permit the one to present and the other to entertain a complaint on the the same facts as a complaint that has already been presented and dismissed. But that is not our concern. We have to interpret the Code as it stands and not in the light of any anomaly to which its wording may give rise. Something has been sought to be made out of the difference between Sect. 147 of the Code of 1872 and Sect. 403 of the present Code. As to that, we are of opinion that the difference is one merely of language and not of substance. Sect. 147 of the old Code provided that “The dismissal of complaint shall not prevent subsequent proceedings.” There is no similar provision in the present case and it is argued that the absence of such a provision leads to the inference that the dismissal of a complaint is now a bar to further proceedings until it is set aside. That is not, in our opinion, the proper inference from the language of Sect. 403. The Section begins by laying down that a man who has been tried for an offence and convicted or acquitted of it shall not be liable to be tried again for the same offence and it ends with the explanation that the dismissal of a complaint is not an acquittal for the purposes of the Section. That, however, is not all; there is in regard to an acquittal a qualification which is not to be found in the explanation. It is that an acquittal to be a bar to a second trial must still remain in force. In regard to the dismissal of a complaint, it is not stated that the order of dismissal is a bar until it is set aside. The only meaning we can put on the wording of the explanation is that an order dismissing a complaint is not an acquittal, in the sense that it bars a further enquiry until it has been set aside. That being so, we must follow the ruling in Emperor v. Chinna Kaliappa Gounden which in our opinion, really covers the present case. There is, it seems to us, no difference in principle between the entertainment of a second complaint by the same or by a different Magistrate. That was pointed out by Sir Francis Maclean in Queen-Empress v. Dolegobind Dass whose opinion was approved by Phillips, J., in Pampalli Subba Reddi v. Chaduboyigari Kamal Sail .
N. R. R.Reference answered.