Full Judgment
Macpherson, J.
1. It seems to us to be clear that this case came before the Magistrate of the 24-Pergunnas under Section 295 of the Criminal Procedure Code,[1] and that it was in the first instance dealt with by the Magistrate under that section. That being so, his proper and only course was to proceed under Section 296, to report the case for orders to the High Court, which (under Section 297) might have ordered the accused persons to be tried, if of opinion that they had been improperly discharged.
2. A case (re Sidya bin Satya) quoted by Mr. Prinsep in his latest edition of the Criminal Procedure Code, as having been decided by the Bombay High Court, has been referred to as showing that the Magistrate was right in the course he adopted. But that case is not reported in the regular reports of the Bombay High Court: nor have we been able to find any report of it. The full facts with which the Bombay Court had to deal are not before us, and we are unable to say how far the Court may really have gone. The note we have of this decision is therefore of little value; and, taking it as it stands, we are not prepared to agree with it as regards cases coming before the Magistrate under Section 295.
3. Dealing with the matter under Sections 294[1] and 297, we think there is material error in the Magistrate's proceeding, and that his order, directing the Joint Magistrate to entertain the fresh complaint now made and all the subsequent proceedings, ought to be quashed.
4. Whatever may have led to the various delays which have occurred in the prosecution of this case since the 21st of July 1875, there is no doubt that very great and unfortunate delays have taken place. It is, as a rule, most unfair and undesirable in every way to order an accused person to be tried over and over again for the same offence, unless under very peculiar circumstances. In the present instance there is nothing peculiar in the circumstances to warrant a third trial: and it seems to us wrong and improper (within the meaning of Section 294) that an order should be made directing the prosecution to be now recommenced.
5. The order of the 10th of February and all the subsequent proceedings are quashed.
Section 295: Any Court of Session or Magistrate of the
Powers of Court of Ses- District may, at all times, call for and examine the record of
sion and Magistrate to call any Court subordinate to such Court or Magistrate, for the
for record of Subordinate purpose of satisfying itself or himself as to the legality of any
Courts. sentence or order passed, and as to the regularity of the
proceedings of such Subordinate Court.
For the purposes of this section, every Magistrate in a Sessions Division shall be deemed to be subordinate to the Sessions Judge of the Division.
Section 294: The High Court may call for and examine the record of any tried by any
Subordinate Court for the purpose of satisfying itself as to the
Power to call for records legality or propriety of any sentence or order passed, and as to
of Subordinate Courts. the regularity of the proceeding of such Court.