1. ABDUL HAKIM, J.-This is a reference under section 438 of the Cods of Criminal Procedure, made by the learned Additional Sessions Judge, 1st Court, Dacca recommending to quash or set aside an order dated 17-7-65 by Mr. S. M. N. Ahsan, Magistrate, 1st Class, Narayanganj reviving Case No. 241/124 of 1965 in which the accused were earlier discharged under section 209, Cr. P. C.
2. In this case the accused persons were summoned under section 467, P. P. C. By the learned Sub- Divisional Magistrate, Narayanganj and thereafter the case was transferred to the file of Mr. S. M. N.
3. Ahsan, Magistrate 1st Class for enquiry under Chapter XVIII of the Code of Criminal Procedure. On 8-7-65 both the parties were absent on repeated calls and there--upon, the learned Magistrate discharged the accused under sec--tion 209, Cr. P. C. With an observation: - The charge appears to be groundless. Accused discharged under section 209, Cr. P. C.
4. On 17-7-65 an application was filed by the complainant, a pardanashin woman for revival of the case and the learned Magistrate on being satisfied with the reasons mentioned therein, revived the same and issued warrants of arrest against the accused persons. The learned Additional Sessions Judge, 1st Court, Dacca in this reference has recommended to quash the said order of revival of the proceedings on the ground that the learned Magistrate after passing the order of discharge became functus officio and has no jurisdiction to revive the proceedings.
5. It appears from the order-sheet of the Magistrate's record that the complainant was allthrough vigilant to proceed with the case and never defaulted except on 8-7-65. The petition for revival dated 17-7-65 shows that on 8-7-65 too the com--plainant was actually present in Court with four witnesses and filed hajira but at the relevant time when the case was called on, he was in the bath room to answer the call of nature. It thus appears that she was prevented from being present before the Magistrate in due time, due to the call of nature and that there was no intentional laches on her part.
6. The function of the Magistrate in an inquiry under Chapter XVIII of the Criminal Procedure Code is to decide on evidence whether there is a prima facie case and whether the accused will be discharged or committed to the Court of Session. Section 209 of the Code makes it obligatory on the Magistrate holding the enquiry to discharge the accused in case there are not sufficient grounds for committing him for trial. In doing so, he shall, however record reasons but no reasons have been recorded in the order. The Magistrate may also enforce the attendance of witnesses in such enquiry. The offence involved in the case is one, which is exclusively triable by the Court of Session. The accused too were absent from the Court on 8-7-65. The order of discharge, in the circumstances, is bad on the face of it It appears from the records that the order of discharge dated 8-7-65 was made without examination of any witness in the case. This order of discharge not being made on merits, fresh prosecution may be initiated against the accused persons on the same facts. A discharge order is not a legal bar to a fresh prosecution. In this connection the case o Pir Badsha and another v. The State (PLD 1963 SC 93) may profitably be referred to.
7. In the case of Abul Hossain Sana v. Suwalal Agarwala and another (PLD 1962 SC 242) the Supreme Court of Pakistan in paragraph 10 of the judgment observed as follows: - "It will be observed that in both the cases a second prosecu--tion, was, in accordance with the view we have taken, permissible, for there was no decision on the merits after recording of evidence in either case. Had cognizance been taken in these cases on the basis of fresh complaints there could be no objection to the proceedings at all. The learned Judge did not see any difference between a fresh complaint and a revival of the same proceedings. It is true that the difference may appear to be a technical one but it is not a difference, which can altogether be ignored. In a proper case an application for revival may amount to a fresh com--plaint but barring that we would not accept for the reasons already recorded that a revival is possible."
8. The portion "in a proper case an application for revival may amount to a fresh complaint" in the above paragraph is very significant. This observation, if we are permitted to say so, does not prohibit a revival altogether and means that in a proper case an application for revival which may amount to a fresh complaint may be entertained. In other words, in a fit case, if the Magistrate is so satisfied, a revival may allowed on the grounds to be recorded by him, treating the application for revival as a fresh complaint. The learned Deputy Legal Remembrancer also submits that the revival has not been debarred and in a proper case the revival may be allowed if the application for revival may amount to a fresh complaint.
9. The difference between the initiation of a fresh prosecu--tion and the revival of the same proceedings on a petition is of very technical nature. The ultimate purpose being to find out the truth and do substantial justice in the matter, the minor technicality should - not stand on the way of the Court of justice. If the Magistrate can entertain a fresh complaint and initiate a fresh prosecution, he may also receive a restora--tion petition and restore the case to its original file in the great interest of justice in a fit case, as the accused has no occasion to be prejudiced thereby.
10. If the fresh prosecution cannot cause prejudice to the other side, the revival of the case cannot also prejudice them.
11. In the present case it appears that the learned Magistrate while reviving the case, issued fresh warrant of arrest against the accused and that means that Magistrate treated the applica--tion for revival as a fresh complaint.
12. In the Criminal Procedure Code, there is no provision debar- ring the Magistrate's discretion of reviving proceedings on a fit case. There are numerous authority to show that the revival of a case by a Magistrate under proper circumstances is justified in law.
13. The order of discharge having been passed in the instant case at an initial stage of the matter without recording any evidence or consideration of any materials and a good case for revival having been made out the learned Magistrate, in our opinion, was justified in reviving the same for the ends of justice and also on the ground of hardship.
14. This is a case of discharge under section 209 but not under section 253 of the Code of Criminal Procedure. The powers of a Magistrate under Chapters XVIII and XXI of the Code are well defined. A Court becomes functus officio only when the order of discharge is made on merits after application of mind to the materials available on record.
15. In this view of the matter, this reference is liable to be reject--ed and it is accordingly rejected.
16. The case will proceed as usual from the stage at which it was stopped.
17. AHSANUDDIN CHAUDHURY, J.-I agree.