JUDGMENT Chainani, J.
1. The facts of this case are simple. A complaint was filed against the three applicants under Section 500, Penal Code, on 7th May 1948, in the Court of the City Magistrate, First Class, Jalgaon. After a few adjournments, the regular hearing of the case commenced on 23rd July 1948. On that date the complainant was examined, and the case was adjourned to 11th August 1948, and subsequently to 24th August 1948. On the latter date the case had been fixed for hearing at 2 p. m. When the case was called out, the complainant was absent. The learned Magistrate, therefore, passed an order discharging the applicants under Section 259, Criminal P. C. The complainant appeared before the Magistrate at 3 p. m. on the same day and requested that the order of discharge should be reviewed and that the complaint should be re-heard. In his application he stated that he was not able to attend the Court at 2 p. m. as he had to give evidence as a witness in a civil Court. The learned Magistrate granted this application made by the complainant, set aside the order of discharge, and directed that the complaint should be taken on file and re-heard. Fresh summonses were issued to the accused and the case was fixed for hearing on 30th August 1948. On that date the learned Magistrate examined the remaining witnesses for the prosecution and framed a charge against the applicants. No objection was taken by the applicants on that day that the order of discharge had been wrongly set aside. The case was thereafter fixed for. hearing on 13th September 1948. The applicants then made an application to the Sessions Judge, East Khandesh, and contended that the order passed by the Magistrate on 24th August 1948, taking back the complaint on his file was illegal, and that the Magistrate should have held a de novo trial after taking the complaint on his file. They, therefore, requested that a reference should be made to the High Court recommending that the order of the Magistrate reviving the complaint should be set aside. The learned Sessions Judge was of the opinion that the Magistrate was competent to re-hear the complaint, and that it was not necessary for him to begin the proceedings de novo. He, therefore, dismissed the application made to him by the three applicants. Against that order the three applicants have now come in revision.
2. Three points have been urged in this application. The first is that the learned Magistrate was not competent to review his own order, by which he had discharged the applicants on 24th August 1948. It has been argued that after passing that order, the Magistrate became functus officio, and that he could not re-hear the complaint, unless his order had been set aside by a superior Court, under Section 436, Criminal P. C., which empowers a Sessions Judge or a District Magistrate to direct any subordinate Magistrate to make further enquiry into the case of any person accused of an offence, who has been discharged. Reliance is placed on Section 369, Criminal P. C., which provides that no Court shall alter or review a judgment after it has been signed, except to correct a clerical error. The word 'judgment' is not defined in the Code. In Damu Senapati v. Sridhar Rajwar, 21 Cal. 121 at p. 127, it was described by Trevelyan J. as "the expression of the opinion of the Judge or Magistrate arrived at after due consideration of the evidence and of the arguments."
3. This definition has been approved by a Pull Bench of this Court in Emperor v. Nandlal Chunilal, 48 Bom. L. R. 41 at p. 44 : (A. I. R. (33) 1946 Bom. 276 : 47 Cr. L. J. 700 F. B.). When a Magistrate discharges an accused person under Section 259 on account of the absence of the complainant, he does not apply his mind to the evidence in the case. The order is passed, not on a consideration of the merits of the case, but merely because the complainant was absent at the time fixed for the hearing of the case. Such an order of discharge cannot, therefore, be said to be a 'judgment' and consequently the Magistrate is not debarred from reviewing such an order. It is true that it is open to the complainant in such a case to move a superior Court to set aside the order of discharge and direct further enquiry into the case under Section 436, Criminal P. C. But as pointed out by Maclean C. J. in Mir Ahwad Hossein v. Mahomed Askari, 29 Cal. 726 at p. 731 : (6 C. W. N. 633 P.B.), this is an enabling section and does not take away the jurisdiction vested in a Magistrate to rehear the, complaint. The fact that the complainant has this remedy available to him would not therefore be a sufficient ground for holding that the Magistrate is not competent to review his own order passed under Section 259, Criminal P. C. It is open to the complainant to pursue still another course, viz., to file a fresh complaint. It is now well settled that a fresh complaint on the same facts can lie when the previous complaint has been dismissed under Section 203 or when the accused person has been discharged under Section 253, or Section 259, Criminal P. C. : see In re Mahadev Laxman, 27 Bom. L. R. 352 : (A. I. R. (12) 1925 Bom. 258 : 26 Cr. L. J. 991), Emperor v. Amanat Kadar, 31 Bom. L. R. 146 : (A. I. R. (16) 1929 Bom. 134 : 30 Cr. L. J. 594) and Alimahomed v. Kasturchand, 41 Bom. L. R. 90 : (A.I.R. (26) 1939 Bom. 89 : 40 Cr. L. J. 346). In Emperor v. Amanat Kadar, 31 Bom. L. R. 146 : (A. I. R. (16) 1929 Bom. 134 : 30 Cr. L. J. 594), Madgavkar J. stated (p. 147) :
"The defence of autrefois acquit has no application to the case of a discharge, and it has been held by this Court in Queen-Empress v. Bapuda, Rat. Un. Cr. C. 350, that a discharge not operating as an acquittal leaves the matter at large for all purposes of judicial inquiry, and there is jurisdiction still vested in all Magistrates including the one who made the previous inquiry. And while the Magistrate must exercise due judicial discretion, there is nothing in law to prevent him from inquiring again into the case."
4. As, therefore, a Magistrate has jurisdiction to take cognizance of the same offence again, when a fresh complaint is brought on the same facts, it is possible to argue that the Magistrate is not deprived of his jurisdiction when, instead of filing a new complaint, the complainant makes an application to him to revive the original complaint, and that the Magistrate is competent to rehear the case by reviving the original complaint. This argument appealed to majority of Judges who decided Emperor v. Chinna Kaliappa Gounden, 29 Mad. 126 : (3 Cr. L. J. 274). In that case Sir Arnold White C. J. stated (p. 130) :
"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."
It seems to us, however, that a distinction must be drawn between cases in which the order of discharge is passed after appreciation of the evidence with a view to determine the guilt or innocence of the accused and those in which the proceedings are terminated merely for some technical reason, such as the absence of the complainant. When a Magistrate has applied his mind to the facts of the case and discharged the accused, because in his opinion the evidence does not prima facie establish the guilt of the accused, the order amounts to a judgment within the meaning of Section 369, Criminal P. C., and it is not open to a Magistrate to review it. In other cases such as those falling under Section 259, Criminal P. C., the order of discharge is not a decision given on merits and is not a judgment, and consequently the Magistrate is not debarred from reviewing it, setting it aside and reviving the old complaint.
5. I will now refer to some decisions which have been cited before us. In Dwarka Nath Mondul v. Beni Madhab Bannerji, 28 Cal. 652 : (5 C. W. N. 457 F.B.), a Presidency Magistrate in Calcutta had dismissed the complaint as the complainant was absent. Subsequently, on the application of the complainant, he revived the case and issued a summons. The accused applied to the High Court to have the order of revival set aside. The case first came up for hearing before a division bench. In view of the conflict of authority on the question of competence of a Magistrate to revive a warrant case, in which he had made an order of discharge, the matter was referred to a Full Bench of seven Judges. The question referred to the Full Bench was :
"Whether a Presidency Magistrate was competent to revive a warrant-case, triable under Chap. XXI, Criminal P. C., in which he had discharged the accused person."
Six out of the seven Judges, who constituted this Bench, answered the question in the affirmative. Ghose J., who delivered a dissenting judgment, was not prepared to go as far, as the other Judges and hold that every order of discharge could be reviewed by the Magistrate who had passed it. In his opinion a Magistrate is competent to review an order of discharge, if it is passed without investigation into the merits of the complaint. This will be clear from the following passage in his judgment at pp. 664-665 :
"Upon examination of the various provisions of the Code, it will be found that it is only after the Magistrate investigates the merits of the complaint, either by examination of the complainant or by taking such evidence as may be produced, that the Magistrate is in a position to pronounce a judgment, or in other words that the case should reach a stage, which entitles or requires him to pronounce a decision upon the guilt or innocence of the accused. And, if he then makes his order, either convicting the accused or discharging him, it would, I think, be a judgment within the meaning of the Code .... Confining myself to a warrant-case, and referring to Sections 203, 252, 253 and the following sections in Chap. XXI of the Code, it seems to me clear that it is only when the Magistrate, after investigating into the merits of the complaint, pronounces an order, it is a judgment. In the present case, however, the Magistrate did not so investigate the merits, but, as expressed by himself, it was 'struck off in the absence of the complainant' on the day fixed for trial. It is obvious that the case did not reach that stage, which entitled him to pronounce an opinion as to the guilt or innocence of the accused. I am, therefore, inclined to think that the order of 26th May 1900 is not a judgment within the meaning of Section 369 of the Code; and, that being so, the Magistrate was entitled to alter or review it, as he did by his order of 26th of June of the same year."
Even the dissenting Judge was, therefore, of the opinion that a Magistrate is competent to revive a complaint and rehear it, where the accused has been discharged under Section 259 on account of the absence of the complainant. This decision was followed by another Full Bench of the Calcutta High Court in Mir Ahwad Hossein v. Mahomed Askari, 29 Cal. 726 : (6 C. W. N. 633 F.B.). That was a case in respect of a complaint filed before a Magistrate in the mofussil. The complaint was under Sections 426, 295 and 297, Penal Code. When the case came on for hearing, the complainant stated to the Court that he was willing to withdraw it, as the accused had apologised. The Magistrate discharged the accused in respect of the offences under Sections 295 and 297, Penal Code, and acquitted him in respect of the offence under Section 426. The accused then filed a petition stating that he had not apologised but that the complainant had withdrawn the case as it was groundless and frivolous. The complainant thereupon prayed that the case against the accused might be revived. The learned Magistrate then directed the issue of summonses under Sections 295 and 297, Penal Code. The accused applied in revision to the High Court. The division bench before whom the case first came up for hearing referred it to a Pull Bench. The question referred to the Pull Bench was :
"Whether a Magistrate in a warrant case having passed an order of discharge is competent to take fresh proceedings and issue process against the accused in respect of the same offence, unless an order for further enquiry shall have been passed under Section 437, Criminal P. C., having the effect of setting aside such order of discharge."
Four out of the five Judges who constituted the Full Bench answered this question in the affirmative. Ghose J. who dissented from the majority of the Judges, answered the general question referred to the Full Bench in the negative. But in doing so, he referred to the observations made by him in Dwarka Nath Mondul v. Beni Madhab, 28 Cal. 652 : (5 C. W. N. 457 (F.B.)) and stated (p. 733) :
"I feel, however, bound to say, at the same time, that the order of discharge made by the Magistrate in the present case does not amount to a judgment within the meaning of Section 369 or Section 367, Criminal P. C. There was no judicial investigation by the Magistrate of the merits of the complaint, and therefore, as explained in my judgment in the case of Dwarka Nath v. Beni Madhab, 28 Cal. 652 : (5 C. W. N. 457 (F.B.)) the order of discharge would be no bar to the revival of the same complaint."
The decisions of the Calcutta High Court in these two cases were approved and followed by a Full Bench of the Madras High Court in Emperor v. Chinna Kaliappa Gounden, 29 Mad. 126 : (3 Cr. L J. 274), in which it was held that the dismissal of a complaint under Section 203, Criminal P. C., does not operate as a bar to the rehearing of the complaint by the same Magistrate, even when such an order of discharge has not been set aside by a competent authority.
6. The majority of the Judges who decided Dwarka Nath v. Beni Madhab, 28 Cal. 652 : (5 C. W. N. 457 (F B.)) were of the opinion that the judgment referred to in Sections 367 and 369, Criminal P. C., is a judgment of conviction or acquittal. At p. 660, Princep J. observed :
"But it has been argued that an order dismissing a complaint or discharging an accused person is a judgment within the terms of Chap. XXVI, Criminal P. C., and that by reason of Section 364 the Court, which passed the judgment, is unable to alter or review it. Now, here I would state that in my opinion such an order is not a Judgment within the terms of Chap. XXVI. Section 367 explains what constitutes a judgment and it clearly indicates to my mind that a judgment within that Chapter is only a judgment of acquittal or of conviction. In the case of an order of discharge, or in the case of an order dismissing a complaint, it is expressly required by the law that the Magistrate shall state his reasons, and I therefore take it that, if it had not been so required, it would have been unnecessary for a Magistrate to state any reasons for his order. Consequently in this point of view, the order would not constitute a judgment. And it seems to me, also, that the expression 'judgment' itself indicates some final determination of the case which would end it once for all, such as an order of conviction or acquittal." At page 675, Harington J. stated:
"And, indeed, it is difficult to understand how, in proceedings under Chap. XXI, Criminal P. C., an order of discharge could be called a judgment, when, at the time it was made, no charge had been framed on which a 'judgment' could be passed, and the accused had not been called upon to plead. It could under no circumstances be 'definitive,' for it does not operate as an acquittal order under Section 403, Criminal P. C. That section shows what constitutes a definitive judgment in a criminal case."
In Emperor v. Chinna Kaliappa (29 Mad 126: 3 Cr. L. J. 274), Sir Arnold White C. J. referred to the above passage in Princep J.'s judgment and stated (p. 131):
''By Section 367, the judgment is to contain the reasons for the decision. Section 203 enacts that when a Magistrate dismisses a complaint by an order under that section, he shall briefly record his reasons for so doing. If an order under Section 203 is a judgment within the meaning of Section 369, this provision in Section 203 is unnecessary and redundant; or, to put it another way,--the way in which it is put by Prinsep J., in Dwarka Nath v. Beni Madhab, 28 Cal. 652 at p. 660 : (5 C. W. N. 457 (F.B.)) in the case of an order of discharge as in the case of an order dismissing a complaint, it is expressly required by the law that a Magistrate should state his reasons, and it may be taken that if it had not been so required, it would have been unnecessary for the Magistrate to state any reasons for his order. Consequently in this point of view, the order does not constitute a judgment."
The statement that the Magistrate is required by the law to record his reasons for passing an order of discharge is not quite correct. In a warrant case, an order of discharge is passed either under Sub-section (1) of Section 253, when upon taking all the evidence produced in support of the prosecution the Magistrate finds that no case against the accused has been made out, or under Sub-section (2) of Section 253 when the Magistrate considers that the charge against the accused is groundless or under Section 259 when the complainant is absent. The Magistrate is required to record reasons only when the order of discharge is passed under Sub-section (2) of Section 253 and not when it is passed under Sub-section (1) of Section 253 or under Section 259.
7. In our opinion, the correct test for determining whether an order amounts to a judgment is whether it is or is not passed on the merits of the case after examination of the evidence produced. We agree with the view taken by Ghose J. in the two Calcutta cases referred to above, that where an order of discharge is passed by a Magistrate without judicial investigation into the merits of the complaint, the order does not amount to a judgment and would not be a bar to the revival of the same complaint.
8. The Rangoon High Court has taken a similar view in Ibrahim v. Emperor A. I. R. (15) 1928 Rang, 288 : (80 Cr. L. J. 749), in which it was held that a judgment contemplated by Section 369, Criminal P. C., is a decision on merits, and that an order of dismissal for default of appearance is not a judgment. This case was relied on in Emperor v. Bansgopal for holding that an order dismissing an appeal on the ground that a copy of the judgment had not been filed as required by Section 419, Criminal P. C., does not amount to a judgment within the meaning of Sections 367 and 369, as the dismissal was not on merits, and that such an order can consequently be altered or reviewed.
9. On behalf of the applicants, reliance is placed on Phonsia v. Emperor . In that case the Magistrate had discharged the accused after hearing the evidence of the complainant. An application was then made to the Magistrate to review his order of discharge, and it was held that such an application was against the provisions laid down in Section 369. In our opinion, if we may say so with respect, the decision in that ease was correct, for the order of discharge was passed after a consideration of the evidence led in the case, and, therefore, amounted to a judgment within the meaning of Section 369. In the present case, however, the order of discharge was passed by the Magistrate on account of the absence of the complainant, without considering the question of the guilt or innocence of the applicants. Such an order cannot be said to be a judgment within the meaning of Section 369, and it was, therefore, competent for the Magistrate to review it, and after reviewing it, to revive the case.
10. As I have mentioned above, the learned Magistrate set aside the order of discharge on the same day on an application made to him by the complainant. Before setting aside that order, he did not issue notice to the applicants. It has, therefore, been contended that the order that the complaint should be reheard is illegal, and that all the subsequent proceedings are invalid. It is no doubt true that no order should ordinarily be passed to the prejudice of any person without hearing that person. The record of the case shows that when the applicants appeared before the learned Magistrate on 30th August 1948, in obedience to the fresh summonses issued to them after the order of discharge had been set aside, they did not raise any objection against that order. It was only after the complainant had led his evidence and after a charge had been framed that they applied in revision to the Sessions Judge. Moreover, we do not think that on the facts in this case, when the complainant had appeared before the Magistrate on the same day within about an hour after the case was called out for hearing, with a reasonable explanation for the delay in his appearance, the learned Magistrate would have passed any different order, even if notice had been issued to the applicants and the applicants had appeared before the Magistrate before the order of discharge was set aside. The irregularity in the procedure followed by the learned Magistrate is, therefore, not such as would vitiate the subsequent proceedings.
11. It has also been urged that after taking the complaint on his file, the learned Magistrate should have heard the case de novo. In support of this argument the decision of the Madras High Court in Venkatasubba Iyer v. Soundararaja Iyyengar has been cited. That was the decision of a single Judge. The judgment is of a few lines, and contains the following passage :
"If a Magistrate discharges an accused because of the non-appearance of the complainant under Section 259, Criminal P. C., and subsequently excuses that non-appearance he mast proceed de novo. None of the evidence recorded in the first can be carried over to the second case."
No reasons for this view have been given in the judgment. We do not see why in such cases a de novo trial should be necessary. The effect of a de novo trial can only be that the evidence, which has been recorded already, will have to be recorded over again, with consequent waste of public time and money and inconvenience and additional expense to the parties, including the accused. Such a course should obviously be avoided. We, therefore, consider that the learned Magistrate was right in proceeding with the case from the stage at which it was when he discharged the accused on account of the absence of the complainant.
12. The result, therefore, is that the application fails and is dismissed. Rule discharged.