Law: Criminal Procedure Code (V of 1898)

Section: 209

Criminal Procedure Code (V of 1898), S. 209-Discharge of accused-Order of discharge passed at initial stage without recording any evidence or consideration of materials and a good case made out to revive case-Magistrate, held, justified in reviving same for ends of justice-Court becomes functus officio only when order of discharge made on merits. In the instant case the order of discharge was made without examination of any witness in the case. This order of dis charge not being made on merits, a. fresh prosecution could be initiated against the accused persons on the same facts. A discharge order is not a legal bar to a fresh prosecution. The function of the Magistrate in an enquiry 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 Magis trate 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. In a fit case, if the Magistrate is so satisfied, a revival may be allowed on the grounds to be recorded by him, treating the application for revival as a fresh complaint. The difference between the initiation of afresh prosecution 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 sub stantial 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 restoration petition and restore the case to its original file in the greater interest of justice in a fit case, as the accused has no occasion to be prejudiced thereby. If the fresh prosecution cannot cause prejudice to the other side, the revival of the case cannot also prejudice them. In the Criminal Procedure Code, there is no provision debarring the Magistrate's discretion of reviving proceedings on a fit case.            …