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Criminal Revision No. 880 of 1968, decided on 25^th November 1969.

Ss. 190, 247 & 253-- Discharge of accused Cognizance of offence on fresh complaint Discharge of accused under S. 253‑Must be on merit‑Accused discharged on account of absence of complainant and not upon any finding on merits of charge‑Fresh inquiry on fresh complaint, held, not barred.

The accused had been discharged in a case registered on a complaint under section 379, Penal Code, 1860, because the complainant was not present on the date of hearing. The com plainant however filed a fresh petition of complaint and fresh case was started against the accused who was summoned by the Magistrate. The order was challenged on the ground that since the Magistrate had previously discharged the accused under section 253, Criminal Procedure Code, 1898 he became functus officio and had no jurisdiction to revive a case against the accused:

Held, the impugned order summoning the petitioner was passed upon fresh complaint. Since the previous order of discharge of the petitioner was not passed upon a finding as to the merit of the charge against the petitioner and others it cannot be construed as a final order exhausting the power of the Magistrate and making him functus officio.

There is no authority to support the proposition that an order of discharge which is not based upon any finding of the merit of the charge against the accused, will stand in the way of taking cognizance upon fresh complaint.

Abdul Hossain v. Suwalal Agarwala PL D 1962 S C 242 distinguished.

H. K. Abdul Hye for Petitioner.

Nemo for the Opposite‑Party.

Date of hearing: '17th November 1969.

This Rule was obtained by the petitioner against an order dated 30‑10‑68 passed by a Magistrate of Chittagong summon ing the accused‑petitioner and others under section 379 of the Pakistan Penal Code in C. R. Case No. 1593 of 1968.

The relevant facts are that opposite‑party Lila Rani Nundi filed a case against the petitioner and others under section 379, Pakistan Penal Code and the said case was registered as C. R. Case No. 1953 of 1968. On 16‑9‑68 both the complainant and the accused were absent and Mr. K. N. Huda, Magistrate, Ist Class, Chittagong discharged the accused under section 253 of the Criminal Procedure Code. Sub sequently, on 21‑9‑68 Lila Rani Nundi filed a fresh petition of complaint against the petitioner and others and she was examined on that day whereafter a fresh case namely, Case No. 1593 of 1968 was started and on 30‑10‑68 the learned Magistrate passed the impugned order summoning the petitioner and others under section 379, Pakistan Penal Code.

Mr. H. K. Abdul Hye, the learned Advocate appearing for the petitioner challenges the legality of the aforesaid order on the ground that since the learned Magistrate had previously on 16‑9‑68 discharged the petitioner and others under section 253 of the Criminal Procedure Code, he became functus officio and had no jurisdiction to revive the case against the petitioner. It appears from the record that the order dated 16‑9‑68 discharging the petitioner and others under section 253 of the Criminal Procedure Code was passed on account of the absence of the parties which led the learned Magistrate; to observe that "it seems complainant has lost interest in her case". The impugned order dated 30‑10‑68 summoning the petitioner was passed upon fresh complaint. Since the previous order of the discharge of the petitioner was not passed upon a finding as to the merit o .f the charge against the petitioner and others it cannot be constru ed as a final order exhausting the power of the Magistrate and making him functus officio. The case of Abul ffossain v. Sutvalal Agarwalu (P L D 1962 S C 242) referred to by the learned Advocate in support of his contention can be distinguished on facts. In that case the accused, was discharged by the Magistrate upon a finding that the charge was groundless and subsequently upon a petition filed by the Court Sub‑Inspector for revival of the case, fixed a date for de novo hearing. Upon the facts stated above, our Supreme Court held that when a Magistrate after taking evidence in accordance with section 252, Cr. P. C. discharges accused under subsection (1) of section 253 or discharges him before taking any evidence under subsection (2) of section 253 upon a finding that the charge is groundless, the whole of the authority granted by the Code of Criminal Procedure is exhausted and he is not empowered to take any further proceedings. The order of discharge in such cases amount to an order of discharge on merits which debars the Magistrate from exercising further jurisdiction in the same case. There is nothing in the decision of our Supreme Court in the above case, which can be construed as an authority for the proposition that an order of discharge which is not based upon any finding on the merit of the charge against the accused, as in the instant case, will stand in the way of taking congnizance upon fresh complaint.

In the circumstances, I do not agree with the contention raised on behalf of the petitioner that the learned Magistrate had no jurisdiction to proceed against the petitioner on the basis of a fresh petition of complaint.

The Rule is, accordingly, discharged.

Rule discharged.

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