TUFAIL ALI A. REHMAN, C. J.-----These are two appeals directed against the order of the Tribunal constituted under the Foreign Exchange Regulation Act in two different cases against the same accused person who is the respondent in each of them whereby the Tribunal discharged him. In terms it is to be noted that the order purports to be an order of discharge and not a judgment of acquittal and it is indeed an admitted position that no charge had yet been framed in this case.
When these cases came up for hearing, although no objection was taken by the learned counsel for respon--dent as to the maintainability of the appeals, my learned brother and I, being doubtful whether an appeal lay invited argument upon that point from learned counsel on both sides and at their request adjourned the case for some time to enable them to study the question. In due course the matter came up before us again and we have heard learned counsel fully upon this question and, desiring to reserve our own decision in order to enable us to consider the matter fully, informed counsel that, should we come to the conclusion that the appeal were maintainable, we would direct their being re-listed for hearing on merits and otherwise would announce judgment.
2. It is obviously unnecessary to state the facts of the case as we are now not considering the merits and it will suffice to say that the prosecution led before the Tribunal all the evidence it had and the Tribunal then decided not to frame a charge but terminated the proceedings by what is expressly headed an "order of discharge". There is also on record a number of notes of written argument and it is some indication of how things proceeded before the Tribunal that the written arguments on behalf of the defence and with a statement of the contention that there is no sufficient evidence of framing a charge while those on behalf of the prosecution similarly end with the conclusion that there is enough evidence for the framing of a charge. The Tribunal also itself ends order by saying, "I am, therefore of the clear view that the prosecution has not made out any case against the accused which could warrant the framing of a charge under section 12(1)/23 of the F. E. R. Act. I, therefore, discharge the accused under section 253, Cr. P. C." The memorandum of appeal filed in this Court also in its first paragraph asks that the said order of discharge be set aside though it adds that the respondent be convicted and ends with the prayer that the judgment passed by the lower Court be set aside. Although these are not of course not conclusive matters they indicate clearly at least that both in the minds of counsel and the Tribunal there was a distinction between an order of discharge and a judgment of acquittal, considerations which are relevant to the question of the maintainability of this appeal which will turn mainly upon the question whether the order complained of amounts to a judgment.
3. It would be convenient to set out the provisions of section 23(A) of the Foreign Exchange Regulation Act, although for my immediate purpose only subsections (6) and (7) are important:--- "23-A. Tribunal its power etc---(1) Every Sessions judge shall, for the areas within the territorial limits of his jurisdiction, be a Tribunal for trial of an offence punishable under section 23.
(2) A Tribunal may transfer any case for trial to an Additional Sessions Judge within its jurisdiction who shall, for trying a case so transferred be deemed to be a Tribunal constituted for the purpose.
(3) A Tribunal shall have all the power, of a Magistrate of the First Class in relation to criminal trial and shall follow as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898, for trials before such Magistrate, and shall also have power as --provided in the said Code in respect of the following matter namely :--
(a) directing the arrest of the accused ;
(b) issuing search warrants ;
(c) ordering the police to investigate any offence and report ;
(d) authorising detention of a person during police investigation ;
(e) ordering the release of the accused on bail.
(4) All proceedings before a Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 293 and 228 of the Pakistan Penal Code, and for the purposes of section 196 thereof, and the provisions relating to the execution of orders and sentences in the Code of Criminal Procedure, 1898, shall, so far as may be apply to orders and sentences passed by a Tribunal.
(5) As regards sentences of fine, the powers of a Tribunal shall be as extensive as those of a Court of Sessions.
(6) The State Bank of Pakistan or any other person aggrieved by a judgment of a Tribunal may, within three months from the date of the judgment, appeal to the High Court.
(7) Save as provided in the preceding subsection, ail judgment and orders passed by a Tribunal shall be final."
It will be noticed that subsection (6) confers a right of appeal against a judgment of the Tribunal and that subsection (7) provides that till judg--ments and orders" passed by the Tribunal are to be final save as is provided for in the preceding subsection, that is to say subsection (6). Clearly there--fore unless the order complained of is a judgment within the meaning of this section an appeal notes not lie. Now in a general way a judgment might be defined as being the judicial adjudication by a competent Court of a controversy before it which, at least so far as itself is concerned, finally determines the matter. If that be the correct meaning, then of course learned counsel for the appellant would be right inasmuch as the Tribunal has finally decided tire matter and that therefore an appeal would lie against this judgment, if the terms may now without further implication be used, by reason of subsection (6). Regard however being had to various statutes in which the word is used and in some of which it is defined it is not possible I think in law to give it, necessarily and. In all contexts, so wide a meaning. It is, therefore, our duty to determine what the word means as used in section 23-A of the Foreign Exchange Regulation Act. Now it is to be noted that under this section all Sessions Judges are ex officio Tribunal Linder the Act as also are such Additional Sessions Judges as receive a case by transfer under subsection (2) of the section.
Nevertheless it does not follow that tire Tribunal is for the purposes of procedure or even powers a Sessions Court. The procedure for the trial of all offences is laid down in section 5 of the Criminal Procedure Code which reads as follows :-- "5.-(1) All offences, under the Pakistan Penal Code shall be investi--gated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences."
If the Act itself, therefore, was silent upon the question the offences would have to be tried by a Magistrate and by a Cessions Court only if such Magistrate in accordance with provisions of the Code, committed the case to a Court of Session. It would of course under section 5(2) of the Code be competent to the Legislature by enactment to provide for the pro--cedure of dealing with such offences and, to the extent that it did, the Code would have to yield. By statute the Legislature could have excluded the Code altogether but in fact in express terms subsection (3) of section 23-A of the Act not only confers upon the Tribunal all the powers of a Magistrate of the First Class in relation to criminal trials but directs the Tribunal to follow "as nearly as may be the procedure provided in the Code of the Criminal Procedure, 1898 for trials before such Magistrates". In the mater of punishment it is to be noticed that subsection (5) enhances the powers of a Tribunal to impose a fine to a level as extensive as those of a Court of Session; both by the reason of the fact that Code will apply unless expressly excluded and also by reason of the clear implication consequent upon the omission to provide for other sentences and the reference in subsection (3) to the powers of a Magistrate, the powers of the Tribunal for the purposes of punishment must be those of a Magistrate. In effect therefore it comes to this that the Tribunal is being directed to follow the procedure which a Magistrate would have followed under the Code and since the power of discharging an accused person and of giving final judg--ment in a trial is mentioned in that Code I do not think that any further argument is necessary for establishing the proposition that the word "judgment" must be understood in the same sense as it is used in the Code. This conclusion I think arises from necessary implication but even explicit in the section is some distinction between a judgment and an order for while an appeal is provided against the former under subsection (6), subsection (7) gives finality not only to judgments but orders also. Unless therefore, the Legislature contemplated that there could be orders of the Tribunal which did not amount to judgments the language of these two subsections would have been different. Nothing could have been easier than to have provided for appeals not only against judgments but also against orders or possibly generally against decisions under subsection (6) and then to have provided in subsection (7) that save as provided for in the preceding subsection all decisions passed by a Tribunal should be final.
The Act itself, while it does make a clear distinction between judgments and orders, defines neither and that only fortifies me in the conclusion that the word `judgment' must be understood in the same sense as it is used in the Criminal Procedure Code.
4. Now in contrast to the Code of Civil Procedure, the Code of Criminal Procedure does not define the word `judgment'. A judgment is defined in the Civil Procedure Code section 2(9) as "the statement given by the Judge of the grounds of a decree or order." The decree in turn is defined in subsection (2) of the same section as follows:--- "`decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determine, the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order or
(b) any order of dismissal for default."
An order on the other hand under subsection (14) is defined negatively as the formal expression of any decision of a civil Court which is not a decree. Except for the fact, therefore, that the word "judgment" in statutory law can neither be defined so extensively as I have earlier said that in a general way it can, nor can it necessarily has the same meaning in every context, the definitions given in the Civil Procedure Code are of no real assistance.
5. The meaning of the word judgment in criminal law has been can--vassed in a number of cases in different contexts and to some of these cases I shall presently refer but at the outset must state that neither was any case cited at the bar as to its meaning under section 23-A of the Foreign Exchange Regulation Act nor has arsy study on my own part been able to discover any such case.
The meaning of the word as used in the Govern--ment of India Act, 1935 before Independence and, therefore, before the enlargement of the jurisdiction of the Federal Court at the time when the Judicial Committee of the Privy Council was still the final Court of Appeal for this sub-continent was considered In the case of Horiram Singh v. The Emperor (AIR 1939 FC 43). The question was considered in some detail by Sir Shah Sullaiman but in order to appreciate in what context he was examining it is necessary briefly to state how the question arose. Under the Government of India Act, 1935 as it then stood an appeal lay under certain conditions under section 205(1) from "any judgment, decree or final order". The appellant was found guilty by a Magistrate but the conviction as set aside by a Sessions Judge upon the ground that the proceedings were without jurisdiction.
The Crown appealed to the High Court which set aside the order and returned the record to the Sessions Court for disposal of the appeal on merits, Against this decision of the High Court the appellant appealed to the Federal Court and the question therefore arose whether the appeal before the Federal Court was competent. The real question, therefore, before their Lordships of the Federal Court was whether under the limited powers of appeal conferred upon that Court by the Government of India Act they had jurisdiction to hear a criminal appeal at all. Learned and interesting as the discussion of his Lordship is I do not propose to quote it in full but content myself by reproducing the following passage which appears at pages 47 and 48 of the Report:-- "In view of the observation, made by their Lordships of the Privy Council, the word `judgment' cannot now be taken in its widest possible sense so as to include ever: order which terminates a pro-- ceeding pending in a High Court so far as chat Court is concerned. In criminal cases the position is still stronger. In England judgment is equivalent to a judgment of conviction or acquittal and is distinct from other orders in a criminal case. This will appear from an examination of paragraphs 260.4 in Vol. 9, Halsbury's Laws of England (Hailsham Edition). In the Indian Code of Criminal Procedure, judg--ment is not defined, but various sections suggest what it means, sec--tions 404 and 415-A no doubt refer to appeal from judgment or appeal able judgment respectively. But under sections 263 and 264 the judg--ment in a summary trial has to contain the finding and sentence or other final order. Under section 3135, in a jury trial the order of conviction or acquittal in accordance with the opinion of the jury is the judgment. Under section 309, in a case tried with assessors, the final order which is followed by the sentence, is the judgment. Section 367 suggests what the contents of a judgment should be, and what it should comprise of when it be a judgment of conviction and what if it be a judgment of acquittal. Section 370 also requires a record of the offence complained of or proved, the plea of the accused and the final order. As final orders like those under sections 144 and 145 could not be judgments, a special provision has been made in section 367(6) that certain orders should be deemed to be a judgment. The Code provides appeals from certain appeal able orders, and section 423 provides appeals from conviction and sentence. Thus, judgment in the Code means a judgment of conviction or acquittal."
Of high authority as the case is I should have been content to base my judgment upon this one case alone but I am conscious that the word `judgment', not being defined in the Code, the observations of his Lordship must be read primarily in the context of the question that he was then deciding and think it better to examine the question further though of course, the case is binding upon me and I am, in any event, greatly influenced by the weighty reasoning that I have quoted.
6. The learned Chief Justice, Sir Maurice Gwyer, in a very short concurring judgment merely observed that the word judgment, decree or final order," ought to receive no narrow interpretation while Varadacharir, J. Held merely that the word judgment as used in the Government of India Act was comprehensive enough to include a judgment pronounced in a criminal case. His Lordship did not go into the question as to what the meaning of that word in the Criminal Procedure Code itself was.
7. Although the Criminal Procedure Code does not define the word "judgment" it does in fact make use of it in several sections and of these may be mentioned sections 366, 367, 369, 371, 372. Each of these sections however takes the meaning of the word 'judgment', as it were, for granted. Section 36 for example says how the judgment is to be delivered and section 367 provides for the contents of a judgment. Section 369 provides against the alteration of a judgment and sections 371 and 372 merely refer to such matters as the grant of a copy to the accused and translation. Chapter XXXI of the Code which provides for appeal does not use the expression in any of the sections which confer a right of appeal all of which are couched in the language of granting such a right to a person who has been convicted or against whom an order has been passed and even section 417 which confers a right of an appeal against acquittal upon the Provincial Government refers to "an original or appellate order of acquittal". In this Chapter the word "judgment" has been used only in sections 404, 424, 429 and 430. The first of these sections provides only that no appeal shall lie from any judgment or order except as provided for by the Code or by any other la for the time being in force.
Section 424 extends the rules applicable t judgments of a Criminal Court of original jurisdiction so far as may be prac--ticable to the judgment of any Appellate Court other than the High Court.
Section 429 talks of the procedure applicable when there is a division o opinion between the Judges composing the Court of Appeal and then provide that another Judge shall hear the matter, deliver his opinion and the judg--ment or order will follow such opinion. Lastly section 430 confere finality upon judgments except as provided for in section 417 and Chapter XXXII, A the former of which permits acquittal judgments to be challenged while the latter provides for references and revisions.
8. Although, therefore, the word judgment is not defined in the Code it does clearly contemplate a distinction between a judgment and an order and the fact that the revisional process is applicable to the judgments and orders of Courts subordinate to the High Court shows that the two are being treated differently. It is also noteworthy that some power of revision is conferred even upon a Court lower than the High Court namely, the Court of Sessions and equally noteworthy is the fact that, while the revisional power of a High Court is very wide indeed, interference with acquittals by means of revision is not permissible to the same extent as it would be by means of an appeal under section 417 of the Code.
9. It would be appropriate now to consider the procedure laid down in the Code of Criminal Procedure for the trial of offences generally and, therefore, by reference, of offences under the Foreign Exchange Regulation Act. Under the Code a different procedure is prescribed, so far as trial before Magistrates are concerned, for warrant cases and summons cases. Summons cases are provided for in Chapter XX (Sections 241 to 250) and warrant cases in Chapter XXI (Sections 251 to 259). While I shall presently refer in a little greater detail to the procedure prescribed for warrant trials. So far as summons cases are concerned it is worth noticing only that there is no stage in the trial of a summons case where, after the evidence or part of it led by the prosecution has been recorded, a formal charge is framed. Indeed the proceedings in a summons case begin by the statement of a substance of accusation which is equated with what is properly described as a charge in warrant cases; in its very nature therefore there cannot be in a summons case any such thing as an order of discharge and all cases must end either with an acquittal or with a conviction.
As against this there the more elaborate procedure described for the trial of warrant offences might pause here to point out that there can be no question but that trials for offences under the Foreign Exchange Regulation Act must be warrant trials. A warrant case is defined in section 4(W) as "a case relating to at, offence punishable with death, transportation or imprisonment for a term exceeding 6 months" while the preceding clause in the same section defines a summons case as one relating to an offence and not being a warrant case. The penal provision in the Foreign Exchange Regulation Act is section 23 and among other things it provides, for a contravention, or an attempt to contravene, or an abetment of the contravention of any of the provisions of the Act or of any rule, direction or order made thereunder, a sentence of imprisonment which may be extend to two years or with fine or with both; clearly therefore such an offence would be a warrant case within the meaning of the Code. In Chapter XXVI the first section, namely, section 251 merely states that the procedure hereinafter laid down shall be observed by Magistrates in the trial of warrant cases. The next section provides that the Magistrates shall then hear the complainant if any and take all such evidence as may be produced in support of the prosecution and also such other evidence as the Magistrate shall ascertain, from the complainant or otherwise, as being the evidence of witnesses likely to be acquainted with the facts of the case and able to give evidence for the prosecution. It is after all this evidence is taken that under section 253 the Magistrate may discharge the accused though nothing in that section is to prevent the earlier discharge of the accused if the Magistrate considers the charge to be groundless. It true that section 253 in this latter provision does use the word 'charge' but clearly it is not using the word in any technical sense as being a formal expression of a statement of the offence as is described in section 221 or in the entire Chapter (XXI) of which that section is a part. Nor in section 253 is the expression being employed to designate a written framed charge which the immediately succeeding section authorises and requires. The charge then having been framed under section 254 a plea has to be taken and formally recorded after which, if it is not a plea of guilty, the accused is then required to state whether he wishes to cross-examine any of the prosecution witnesses who have already been examined and after their cross-examination and re-examination if any he is required to enter upon his defence. It I when all this is over that section 258 both requires and authorises the Magistrate to record a finding that the accused is guilty or not guilty and in the former case to pass sentence upon him and in the latter to acquit him. It is to be noticed that in none of these sections is the word 'judgment' used but in any case it is true that the procedure so meticulously laid down clearly draws a distinction on the one hand between a discharge which justified only when the prosecution are not able to make out a case at all and a subsequent conviction or acquittal which depends upon a more thorough examination of all that has been led by way of evidence for and against the accused. It is true of course that all the three processes, namely, discharge, acquittal and conviction finally terminate the case so far as the Court of the Magistrate is concerned but that a distinction is contemplated between an acquittal and a discharge, admits of no doubt whatever.
10. It is true of course that section 256 of the Criminal Procedure Code has been amended so far as West Pakistan is concerned, by the West Pakistan Amending Act, XVII of 1964 which in effect takes away the right of the accused to demand that the witnesses for the prosecution examined before the charge be re-summoned for cross examination. This, however, makes no essential difference to what I have already stated inasmuch as, before the amending Act as now, it is not necessarily the entire prosecution evidence which is taken before the charge and so much of it as justifies the framing of a charge alone is necessary; before as well as after the amendment the prosecution still has a right of examining further evidence after the charge and an acquittal takes place then and now only after the entire prosecution evidence is over and the accused has also been given an opportunity of leading any defence evidence. Beside this it is also to be remembered that the amending Act is one of 1954 while the Foreign Exchange Regulation Act is an Act of 1947 and the amendments in question apply only to West Pakistan and not the whole country. Looked at, therefore, from any point of view, the amending Act can make no difference so far as the question of the meaning of the word 'judgment' in the Foreign Exchange Regulation Act to the extent that it might depend upon the procedure laid down in the Criminal Procedure Code is concerned. I have already stated my reasons for looking into the Code fur the purpose of discovering this meaning.
11. Now under section 369 of the Criminal Procedure Code which I am reproducing all judgments are final:- "(Save as otherwise provided by this Code or by any other law for the time being in force, or, in the case of a High Court by the Letters Patent of such High Court), no Court), when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
It is to be noticed that the word "judgment" alone is used and not any such expression as order or decision; although therefore the word judgment is not defined in the Criminal Procedure Code it does seem clearly contemp--lated by the Legislature that what can properly be described as judgment is to have a sanctity not conferred upon decisions which do not correspond to the meaning of that word. It is true that section 366 which is the opening section of Chapter XXVI of which section 369 forms a part begins with the words, "the judgment in every trial" and it is, therefore, clear that section 369 is also referring to judgments of a trial Court and that the principle is extended to the judgments of an Appellate Court by section 430, which reads thus:- " Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter XXXII."
It is to be noticed that section 430 however confers the same finality not only upon judgments but also upon orders. I think the use of the word 'orders' in section 430 is significant for more reasons than one. In the first place it is clear, therefore, that a distinction is being drawn between the meaning of the two words and secondly while that finality was not necessarily to be given to the orders of an original Court, nevertheless so far as the orders of an appellate Court are concerned they were to be final. The reference to section 417 and Chapter XXXII is easily understood. The former relates to acquittal appeals which can under that section be heard only by the High Court against an acquittal but an acquittal may be the result either of an original trial or even of the decision of an Appellate Court other than the High Court itself t unless therefore section 417 was specifically provided for in section 430 an appeal would not lie under that section against an appellate order of acquittal. So also Chapter XXXII dealing as it does with the revisional power which, in the main, rests in the High Court, had necessarily to be mentioned for otherwise appellate judgments of conviction or acquittal pronounced by Courts subordinate to the High Court would not be liable to correction by the High Court.
12. On principle therefore and, as yet uninfluenced by authority, I am inclined to the conclusion that the word judgment as used in the Criminal Procedure Code, and, therefore, in the Foreign Exchange Regulation Act, refers to the final decision of a criminal Court whereby an accused person is either convicted or acquitted; it does not include an order of discharge.
13. It now remains therefore to examine the cases that have been cited at the Bar and to consider their effect upon this question. Learned counsel for the appellant first referred us to the case of Dwarka Nath v. Benl Madhab (I L R 28 Cal. 652) where it was held that an order of discharge made after taking evidence may not be altered or reviewed by a Magistrate unless the order be set aside by a superior Court. Counsel particularly referred to a passage in the judgment of Mr. Justice Ghose at page 664 of the report :-- "The Code does not define what a judgment is Section 367 however, so far as the Provincial Criminal Courts are concerned, lays down what judgment should contain, but section 370, as applicable to a Presidency Magistrate, provides a different form for the recording of a judgment. It only provides for certain particulars being mentioned in the judgment, and that in all cases, in which the Magistrate inflicts imprisonment or a fine exceeding Rs. 200, a brief statement of the reasons therefore should be recorded. 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. In this respect, there is a difference between a summons and a warrant-case. Confining myself to a warrant case, and referring to sections. 203, 252, 253 and the following section in Chapter 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 the 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 the 26th of June of the same year."
Reliance was particularly placed upon one sentence occurring in this passage, namely, "And, if he then make his order," (but if after taking such evidence as may be produced) "either convicting the accused or discharging him, it would I think, be a judgment within the meaning of the Code."
14. With very great respect to the learned Judge I am not able to agree but it is really hardly necessary to go to that extent. It is really necessary to examine this case more carefully before it can safely be said that it supports the contention of the learned counsel. What had happened in this case was that a Presidency Magistrate having before him a case under section 406 of the Penal Code and the complainant being absent on a particular day recorded an order in these terms, "Complainant is absent. Defendant denies the charge. Dismissed. Defendant is discharged."
Subsequently, however, an application was made by the complainant that the case might be revived and the same learned Magistrate passed another order "Heard the parties at length. The complainant in this case was absent, when his name was called, by a few minutes. It is, I think, fair that this case should be revived. The ruling of the High Court in the case of Opporba Kumar Sett. v.
Sreemutty Probad Kumary Dassi gives me such power. I therefore revive the case and order the issue of summons". Against this order the accused applied to the High Court and in due course a Division Bench of that Court referred the matter to a Full Bench which considered of as many as even Judges including the Chief Justice. The Bench held by a majority of 6 to 1 that the revived or fresh proceedings were competent despite the earlier order of discharge, the dissenting Judge being Mr. Justice Ghose, from whose judgment the passage which I have reproduced above is taken. Admittedly the bar if any against these fresh proceedings lay in section 369 and, although very many different contentions were canvassed the basic question throughout the case was whether the word "judgment" in section 369 covered an order of discharge. Now the Magistrate in question was a Presidency Magistrate and to the judgments of a Presidency Magistrate section 3 70 since repealed, applied rather than sec--petition. 367. That section as it then stood read ay follows:- "Instead of recording a judgment in manner hereinafter provided, a Presidency Magistrate shall record the following particulars:-
(a) the serial number of the case;
(b) the date of the commission of the offence;
(c) the name of the complainant (if any);
(d) the name of the accused person, and (except in the case of an European British subject, his parentage and residence;
(e) the offence complained of or proved;
(f) the plea of the accused and his examination (if any);
(g) the final order;
(h) the date of such order; and
(i) in all cases in which the Magistrate inflicts imprisonment, or fine exceeding two hundred rupees, or both, a brief statement of the reasons for the conviction."
I do not think that that fact makes mach 7 difference but stress it simply because such a decision did not require so elaborate a statement of the reasons as was necessary in the case of other Magistrates and because against section 370 the marginal not, is "Presidency Magistrate's Judgment"; for what it is worth this marginal note would seem to indicate that section 37(9 was talking of a judgment. Another reason that I have for quoting this is because in the passage from the judgment of Ghose, J. Which I have already reproduced a reference is made to this section. The learned Chief Justice in a very short judgment held that the fresh proceedings were compete and gave his reasons, as it were by reference, quoting the earlier case of Queen-Empress v. Dolegobind Dass (I L R 28 Cal. 211), in which he had held that where a complaint has been dismissed it was no bar to a fresh complaint being entertained even though the original order of dismissal stood unreversed.
15. Prinsep, J. Was of the same opinion and from his judgment I think it suffice to quote the following passage: "But it has been argued that an order dismissing a complaint or discharging an accused person is a judgment within the terms of Chapter XXVI of the Code of Criminal Procedure, 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 Chapter XXVI.
Section 367 explains what constitutes a judgment and it clearly indicate 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."
Later in the judgment he expressly holds that section 403 of the Criminal Procedure Code would not be a bar to the fresh proceedings since that section cannot be pleaded on the basis of an order of dismissal or discharge.
16. Mr. Justice Hill also concurred with the Chief Justice and, so far as his judgment is concerned, reference I think need only be made to the fact that at page 673 of the report he alluded to case of Damini Dassi v. Hurry Mohan Mukerjee (4 C W N 46), which he himself had decided and now held that it could not be sustained; that decision was, as the learned Judge himself says more based upon what was conceived to be the practice of the Court rather than upon principle.
17. Mr. Justice Sale concurred with the Chief Justice without elaborat--ing his reasons bull the judgment of Mr. Justice Harington, also agreeing with the Chief Justice is, I think, for my present purposes more enlightening. He observed: "I agree that the question propounded to us ought to be answered in the terms stated by my Lord, The answer depends on whether the order of discharge is a judgment' or not; and though there is no definition, that I can find, of what constitutes a 'judgment', there is, in section 29 of the Penal Code, a definition of what constitutes a Judge, who is defined as every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority, would be definitive or who is one of a body of persons, which body of persons is empowered by law to give such a judgment; and amongst the illustrations it is pointed out that a Magistrate exercising jurisdiction in respect of a charge, on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge. In this case it appears to me that at the stage of proceedings, at which this charge was dismissed, the Magistrate could not be accurately described as a Judge, because he had not, at that stage of the proceedings, jurisdiction to pass a sentence of fine or imprisonment. All that he had jurisdiction to do was this: if no prima facie case was made, out, he was entitled to discharge the accused; if, on the other hand, a prima facie case was made out, he was called upon to determine whether, if a charge were framed on the facts disclosed, he could inflict an adequate punishment and, if he could, he was bound to frame a charge under section 254 of the Code of Criminal Procedure, and call upon the accused to plead to that charge and then proceed to try it. In my opinion, until the charge had been framed and the accused called upon to plead to it, the Magistrate could not accurately be described as a Judge and any order that he made previous to the framing of the charge could not be described as a judgment. For that reason, I think, that the order of discharge was not a judgment. And, indeed, it is difficult to understand how, in proceedings under Chapter XXI of the Criminal Procedure Code 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 under section 403 of the Code of Criminal Procedure-That section shows what constitutes a definitive judgment in a criminal case."
18. Mr. Justice Brett also delivered a short concurrent judgment and the only dissenting judgment was that of Ghose,
3. Upon which learned counsel has relied. The judgment as a whole, therefore, is clear authority against the proposition for which the learned counsel for the appellant is canvassing inasmuch as very unambiguously it holds that an order of discharge is not a judgment within the meaning of section 369 of the Criminal Procedure Code. Nevertheless, entitled though the judgment is to very high respect it is not binding on us and it was therefore open to learned counsel to rely even upon a minority view. The passage in the minority view upon which he relies I have already quoted. Examining it now a little more carefully it is quite clear that that learned Judge did indeed hold that order of discharge if passed upon merits would be a judgment under section 369. Now it would be one thing to say that although an order of discharge is not a judgment and that therefore section 369 does not in terms apply so as to be a bar to fresh proceedings, such proceedings ought not to be countenanced if the earlier order of discharge was passed on merits and quite another to say that the order of discharge itself is a judgment or not a judgment depending upon whether it was passed on merits or, as it were, for default. The question after all before us, as it was before the full Bench of the Calcutta Court, is the meaning of the word "judgment" and if the meaning of that word be a pronouncement upon a controversy before a Court which terminates it finally so far as that Court is concerned, the reasons which lead us to such a decision do not appear to me, if I may say so with respect, to be material to the question. If however section 369 is not a bar to a fresh proceeding after an order of discharge is passed in default then clearly such an order must be something other than a judgment and it is possible to hold a view, as I indeed do hold the view, that the further question that the fresh proceedings should be permissible or not is a matter governed by considerations of propriety; so far as the jurisdiction however is concerned I entirely deny that this makes any difference. Even in the passage quoted, however, it is to be noted that the difference in the procedure relating to a summons and a warrant case did seem to the learned Judge to affect the question for he says "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. In this respect there is a difference between a summons and a warrant case." The distinction was not, however, persued and clearly of course in regard to warrant cases the learned Judge did decide in the manner that the learned counsel for the appellant would have us decide. On the whole, therefore, I do not think this case is an authority for the proposition canvassed by learned counsel and the reasoning in the minority judgment does not-and I say this with respect-appeal to me.
19. Reference was then made by learned counsel to the case of In re: Wasudeo Narayan (AIR 1950 Bom. 10) but before I quote the passage upon which counsel laid great emphasis I should like to point out that earlier in the judgment the definition of a judgment in a criminal case given in I L R 21 Cal. 121 "as the expression of the opinion of the Judge or Magistrate arrived at after due consideration of the evidence and of the arguments" is quoted with approval. The learned Judges then go on to draw a distinction between an order passed not upon a consideration of the merits of the case but merely because of the absence of the complainant and then follows the passage to which our attention was pointedly invited:--- "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 (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 applied equally to both cases, and the formality of putting in a fresh complaint cannot be a formality, a Magistrate would not have passed."
It seems to us, however, that a distinction must be drawn between cases in which the order of discharge is passed after appreciating 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."
It is unnecessary I think to repeat the reasons which I have earlier stated while discussing the Calcutta case for expressing my preference for the view quoted in this very passage of the Madras High Court. I think the passage in I. L. R. 29 Madras 126 expresses shortly and lucidly what I have been endeavouring to say, namely, that, when dealing with the question of jurisdiction, as distinct from propriety there can be no question of any difference between an order of dismissal or merits or others and between rehearing the original complaint and entertaining a fresh complaint.
18. A much more recent case decided by our own Court or at least a predecessor Court was then cited: Muhammad Samiullah Khan v. State (PLD 1951 Lah. 227), Now in this case the question was whether after an application under section 561-A of the Criminal Procedure Code had been dismissed by the High Court, a second application by the same party in respect of the same matter could be entertained under section 439 of the Criminal Procedure Code. It is to be observed that the question whether an order of discharge was or was not a judgment was not involved but the meaning of section 369 of the Criminal Procedure Code was certainly in question. Anwarul Haq, J. As he then was observed at page 230 :-- "The expression "judgment as based in section 369 of the Criminal Procedure Code, obviously includes decisions arid orders passed in criminal matters on the merits of the case. If, therefore, the High Court has disposed of a case on merits under section 561-A of the Criminal Procedure Code, it is precluded from reviewing or altering that order by purporting to act under section 439 of the Criminal Procedure Code."
Later in the judgment he stated his final conclusion thus:-- "My conclusion may, therefore, be stated thus. If a party has agitated a matter by means of an application under section 561-A of the Criminal Procedure Code, and the application is dismissed by the High Court, after considering the merits of the case, then a second application by the same party in respect of the same matter cannot be entertained under section 439 of the Criminal Procedure Code, notwithstanding the difference of language employed in the two sections while defining the scope of the powers enjoyed by the High Court under these sections, for the reasons that : (a) such a procedure is likely to lead to confusion, multiplicity of litigation and conflicting judgments, and (b) it will amount to an application to review or alter a judgment of the Criminal Procedure Code and the subsequent one under section 561-A of the same Code. For these reasons I would dismiss Revision Petition No. 507 of 1960 as being incompetent. To this extent Criminal Miscellaneous No. 1647 of 1960 stands accepted."
I do not think that this judgment is, if I may say so with respect, precisely upon the question before me but it is of valuable help at least in under--standing what is meant by the word "judgment" in section 369.
19. So far as the Foreign Exchange Regulation Act is concerned a somewhat related question, though not precisely the same one as is now in dispute, came up before me in the case of Fida Muhammad Piracha v, State (1972 P Cr. L J 951). In that case the prayer was that the proceedings be quashed, the alternative prayer being that the accused be exempted from personal attendance. At the final hearing before me the main prayer was abandoned and the question then really resolved itself into the one of deciding whether despite section 23-A(7) of the Foreign Exchange Regulation Act the Tribunal was amenable to the revisional jurisdiction of this Court. I held that it was not and the case is not therefore directly in point and the only use that can even indirectly be made of that case is that if the word "judgment" in section 23-A were to be given a very wide meaning which would include the determination of every question before it recourse to the revisional powers of this Court would have been unnecessary for an appeal would have lain under section 23-A itself to this Court.
20. A nearer question was however involved in another case before me namely that of Muhammad Hanif v. State Criminal Reference 46 of 1971, Criminal Revision Application 207 of 1971 which is as yet unreported. In this case the accused was tried by a Magistrate and convicted and on appeal a learned Additional Sessions Judge not only dismissed the appeal but also decided to refer the case to the High Court for enhance--ment of the sentence in the meantime the accused person applied in revision against the appellate judgment which was admitted but by some mistake when the reference came up for bearing the application for revision was not put up and, apparently because the accused person had been released on bail in the course of the revision application he too was not present and the notice sent to him at the jail had come back without any endorsement. I proceeded to bear the reference and enhanced the sentence and subsequently when the revision application was put up before another learned Judge this state of affairs was discovered and an application was then made that my order enhancing the sentence be recalled and the reference and the revision application be heard together. The question therefore naturally arose whether section 369 of the Criminal Procedure Code would be a bar to my rehearing the matter. In the course of a judgment in which I had occasion to refer to some reported case I held that section 369, was in the circumstances of the case not a bar and I had occasion to refer to the Lahore case which I have earlier cited and reproduced particularly the second of the two passages in the judgment of Mr. Anwarul Haq that I have reproduced; I went on to say, "it will be seen that the first ground which appealed to his Lordship is really a matter which governs propriety, if I may say so, with great respect. Of course the second ground was clearly directed to a question of jurisdiction inasmuch as it was grounded upon the express prohibition of section 369 of the Criminal Procedure Code."
21. With respect I still adhere to this view. I came finally to the conclusion that the earlier order which I had passed was not a bar by reason of section 369 because having been arrived at without hearing the accused who had a right to be heard that order was itself without jurisdiction and could not therefore be such a judgment as was contemplated by section 369 as bar to further proceedings. Upon that reasoning then it does not still follow that an order of discharge passed by a Magistrate is the judgment within the meaning of section 369 and clearly of course if it is not then sub--section (7) of section 23 .4 of the Act would bar the present appeals.
22. The final argument that was placed before us by learned counsel for the appellants was really based upon a question of hardship. He contended that if we were to interpret section 23-A as not permitting an appeal against an order of discharge a Tribunal could after hearing all the evidence that the prosecution had led or could lead merely by refusing to frame a charge terminate the proceedings by means of an order of discharge and thereby render his final decision immune from correction by the High Court. There are I think at least two fallacies involved in this argument. In the interpretation of statutes the Courts assume a bona fide and not a mala fide exercise of power in the authorities upon which it is conferred. What counsel is virtually saying is that a Tribunal knowing that the evidence does prima facie disclose a case yet permits the prosecution to lead the entire evidence and upon a close assessme nt of that evidence to discharge the accused instead of framing a charge and thereafter to acquit him. It also presumes necessarily a case where it is possible for the accused person relying upon the weakness of the prosecution case alone and without adducing any evidence on his own behalf to demonstrate to the satisfaction of the Tribunal that he is not established to be guilty. For my own part I cannot countenance an argument which virtually invites me to place a construction upon a statute other than that which is justified by reason only that if I were not to do so, a Tribunal dishonestly motivated, could evade the provisions of the law. I must not be understood even by implica--petition to be assuming that in the present case that is so in fact I have refrained from examining the merits so far at all. The second fallacy in the argument is that the Courts may stretch the language of statute for reasons other than are to be found from within the statute itself. It is the duty of the Courts to interpret and to enforce the law ; that in doing so they may run counter to what their own notions of justice are or what their own notions what the law should be, as distinct from what the law is, is a matter which should be of no concern to a Court at all. To a Court justice means justice according to the law, no more and no less. It was as a part of this argument that it was contended before us that section 403 of the Criminal Procedure Code could bar a fresh prosecution against the respondents and that therefore we ought to treat the order of discharge as being one of acquittal for it is only an acquittal or a conviction which would, under section 403 of the Criminal Procedure Code, bar such a fresh prosecution. As to the application of that provision I do not mean to make any comment for that issue is not directly before me and I have had to refer to it only because the learned counsel relied upon that section and a judgment of the Supreme Court for showing that section 403 would be a bar to a fresh prosecution in this particular case. He relied upon the case of Abul Hussain v.
Suwalal Agarwala (PLD 1962 SC 242) and particularly the observations of Mr. Justice Kaikaus, who delivered the judgment of the Court, at pages 244 and 245 of the report:-- "On behalf of the appellant it has been urged before us that even if a second prosecution be competent on a fresh complaint or fresh police report in respect of the same offence, there is no power in a Magis--trate to revive the proceedings which have come to an end by the passing of an order of discharge. This contention we have found no difficulty in accepting. When a Magistrate passes an order of discharge he exhausts his jurisdiction so far as proceedings before him are concerned. Under the Criminal Procedure Code a Magistrate dealing with a warrant case has to act in accordance with sections 252 and 253. He has, in accordance with section 252, to hear the complainant and to take all such evidence as may be adduced on behalf of the prosecution. After he has recorded the evidence he has either to frame a charge or discharge the accused, or if he considers the charge to be groundless he can even before he has recorded the whole of the prosecution evidence pass an order of discharge. But once he discharges the accused the whole of the authority granted by the Criminal Procedure Code in respect of the proceedings before him is exhausted and he is not empowered to take any further proceedings. A final order having been passed the proceedings are closed so far as he is concerned, and he is henceforth functus officio.
To hold otherwise would amount to granting him a power of review which power he does not possess under the Criminal Procedure Code. Once a final order is passed in any proceedings before a Magistrate those proceedings cannot be reopened except by the order of a superior Court acting in accordance with authority granted by law. It has been urged before us that there is, in the Criminal Procedure Code, no bar to the revival of proceedings. That is not a correct approach. An express bar to fresh proceedings was not essential when the law provides for the exercise of jurisdiction by a Court the jurisdiction will be exhausted if it is exercised once. The jurisdiction which the Code granted to the Magistrate by sections 252 and 253 having been exhausted it is for him who invokes a power of revival to establish such power. In the absence of a specific provision the power shall be presumed not to exist.
If an order of discharge did not continue any bar at all to a fresh complaint or a fresh police report it may be possible to argue that the ground on which we are placing this case is a wholly technical one. It is proper therefore to consider the effect of an order of discharge. Under section 403 of the Criminal Procedure Code an acquittal operates as an absolute bar to a fresh prosecution but the section expressly provides that a discharge is not an acquittal. This however does not mean that an order of discharge has no effect on the competence of further proceedings. The general principle that there has to be an end to litigation is applicable ex necessite re to proceedings of any kind in a Court. It would be impossible to contend that once an accused person has been discharged after the whole of the evidence produced by the prosecution has been recorded he can be proceeded against on afresh complaint or report on the basis of the very same evidence. If this were permissible there may be proceedings ad infinitum against an accused person. Also the power granted to a revisional Court to set aside discharge and order fresh enquiry would on this view become redundant. An order of discharge, which is passed on the merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal. In the presence of an order of acquittal fresh proceedings in respect of the same offence will be entirely without jurisdiction, while in the case of an order of discharge passed on the merits fresh proceedings will be improper and will not be permitted."
It is to be observed that the question before their Lordships of the Supreme Court was only whether after the order of discharge has been passed a second prosecution or a fresh police report in respect of the same offence was competent and this their Lordships held, they were not. No-where in the entire judgment is the word "judgment'' used and there is nothing whatever in the reasoning of the Supreme Court which touches upon the question whether an order of discharge is or is not a judgment. Their Lordships were dealing only with the question whether section 403 would bar fresh proceedings and no more. A judgment is after all authority for what it decides and must be understood in the context of the contentions which arise in that case and not from what seems to follow from it. But even if one were to attempt to infer something from this judgment of the Supreme Court other than what trey have expressly held they were not considering the effect of section 369 at all. It is true of course that in this case their Lordships of the Supreme Court did consider the full Bench case of the Calcutta High Court to which I have earlier made reference and it does seem that they were not in entire agreement with the majority judgment in that case. But that disagreement was in their Lordships' view not really as great as it might appear for in another passage in the same judgment Mr. Justice Kaikaus observed:- "The difference between the view we are taking and the view which was taken in the Full Bench cases is not so great as it may at first sight appear. It had been accepted in these cases that if there has been a discharge, after hearing of evidence, there should not be a second prosecution and that is substantially the basis of this judgment. We are in agreement with the learned Judges on the question as to whether a second prosecution will be with or without jurisdiction for we do not hold it will be entirely without jurisdiction. The main difference in the view we take and the view taken in the Full Bench cases with respect to the competence of fresh proceedings is that while we are laying down a general rule prohibiting Magistrates from entertaining fresh proceedings in respect of an offence after there has been an order of discharge, the learned Judges of the Calcutta High Court simply gave expression to their expectation that the Magistrate will not entertain such proceedings and stated further that if they did so the revisional Court would interfere."
While therefore learned counsel for the appellant may be right in thinking that section 403 of the Code would debar fresh proceedings I do not think that this makes any difference to the question before us which is whether an appeal lies under section 23-A against an order of the Tribunal set up under the Foreign Exchange Regulation Act which is not a judgment.
23. On behalf of the respondent learned counsel has cited the case of Debidas v. Emperor (AIR 1930 Cal. 61), in that case the learned Judges held that the Court is competent to take cognizance of a complaint which had already been dismis--sed under section 203, Cr. P. C. Without any order of further inquiry by a superior Tribunal and then went on to observe, "the position is the same as regard that order of discharge, though there may be some doubt where such an order has been passed upon a consideration of the full materials." The case is therefore not of any great assistance and I have already given my reasons for maintaining that an order of discharge is not a "judgment" within the meaning of section 23-A (6) of the Foreign Exchange Regulation Act.
I am accordingly of the opinion that these appeals should be dismissed as not being maintainable.
DORAB PATEL, J.----I respectfully agree. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.