JUDGMENT : J.K. Mohanty, J. - Niranjan Sahu, opposite party in this revision, lodged an information at Tangi Police Station (Tangi P.S. Case No. 75/76) on 31-5-1976 at 6.00 p.m. with reward to an occurrence of the same day against the Petitioners and some others. Police, after investigation, submitted charge-sheet under Sections 147, 323 and 324. Indian Penal Code against the Petitioners and a case was registered as G.R. Case No. 394 of 1976 The Magistrate took cognizance of the offences on 29-10-1976. Thereafter the copies of the police papers were supplied to the accused persons and the case was taken up for consideration of the changes on 3-6-1977. On that day the learned Magistrate heard the defence counsel, who submitted that the copies of the police papers supplied to him do not disclose any case against the accused persons and prayed for discharge of the accused persons. The learned Magistrate heard the learned Assistant Public Prosecutor, who appeared on behalf of the prosecution, and passed the following order: Perused the Case Diary. The case .diary reveals that except the statement of Niranjan Sahu, the informant himself, no other statements of other witnesses is recorded by the I.O., Shri Mohanty and he refers to the statements recorded by him in P.S. Case No. 75/76. The Case Diary in P.S. Case No. 75/76 is not in record. It is due to the latches of Shri B.R. Mohanty, S.I., of Police, Tangi Police Station, who has shirked his responsibility in maintaining the Case Diary the prosecution case fails. It is not known in which case the said diary is filed or not. So in the absence of any statement corroborating the prosecution case recorded by the I.O. u/s 162, Code of Criminal Procedure, I find that the prosecution has failed to make out a prima facie case against any of the accused persons, for which they are liable to be discharged. Hence the accused persons discharged u/s 248(1), Code of Criminal Procedure. While discharging the accused, the Magistrate has mentioned Section 248(1), Code of Criminal Procedure, which is evidently a mistake, the proper section being 239, Code of Criminal Procedure (new). Hence the accused persons discharged u/s 248(1), Code of Criminal Procedure. While discharging the accused, the Magistrate has mentioned Section 248(1), Code of Criminal Procedure, which is evidently a mistake, the proper section being 239, Code of Criminal Procedure (new). Thereafter on 11-8-1978 the opposite party informant filed an application his lawyer with tbe consent of the A.P.P. praying to call for the records in G.R. Case No. 394 of 1976 disposed of on 3-6-1977 and summon the accused persons therein for disposal of the case according to law. The Magistrate called for the records and posted the case to 19-8-1978. On 19-8-1978 the records were received from the record room and after hearing the lawyer for the opposite party-informant and perusing the records, the Magistrate reserved orders. On 2-9-1978 the Magistrate directed: Issue summons to tbe accused persons as per C.S. in G.R. 394/76 fixing 15-9-1978 for their appearance. Issue extract of tbe O.S. to the A.P.P. to get ready with the statement of the witnesses, which in fact finds place in the counter case in G.R. 393/76, now pending for trial. The Petitioner in this revision has prayed for quashing of the above order as illegal and without jurisdiction. 2. Mr. Ram, learned Counsel appearing for the Petitioners, submits that once the Magistrate passed an order discharging the accused persons u/s 239 of the Code of Criminal Procedure, 1973 (Hereinafter caned the "New Code", he becomes functus officio and cannot alter/review his previous order; that u/s 362 of the New Code, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. On the other hand, Mr. On the other hand, Mr. Patnaik, learned Counsel appearing for the opposite party submitted that as all the statements of the witnesses that were recorded by the Police were not produced before the Magistrate and the prosecution failed to make out a prima facie case against the accused persons, the Magistrate by his order dated 3-6-1977 discharged the accused persons; that the statements of the witnesses were recorded in the connected counter case (Tangi P.S. Case No. 74/76) which was started at the instance of the Petitioners against the opposite party-informant and is the subject matter of G.R. Case No. 393/76 now pending trial before the Magistrate, and when the mistake was detected, the case records were called for and the Magistrate, finding a prima facie case against the accused persons, summoned them to face the trial; and that the Magistrate is justified in the changed circumstances, in altering or reviewing his previous order. 3. In support of his contention, Mr. Ram has cited some decisions reported in State v. Ganga Ram Kalita and Ors. AIR 1965 Gau 9 , Mapplillaisami Thevar and Ors. v. Muthuswami Iyer AIR 1949 Mad. 76 and, Bhagwan Sahai Vs. Moti Lal. 'These decisions are under the Code of Criminal Procedure, 1898, (hereinafter called the 'Old Code'). In these decisions it has been held that once a discharge order has been passed, the Magistrate becomes functus officio so far as the case is concerned and unless there is a fresh complaint or a fresh charge-sheet no action in the matter can be taken by the Magistrate, and any attempt to go back on the order of discharge passed by him and reviving the case as if the accused had not been discharged would amount in law to a review of the judgment of the Magistrate which is not permissible in view of Section 362 of the New Code. The order of the Magistrate reviving the case and proceeding with the trial of the same on its merits is clearly devoid of jurisdiction and illegal. Mr. Patnaik in support of his contentions cited Raghubans Prasad and Another Vs. State (Prabhu Dayal Missir) State v. Prakash Chandra Agarwalla 36 (1970) C.L.T. 485 and Kalandi ' Kalandi Charan Das and Ors. v. Sudam Parida AIR 1973 Cutt. 805. All these cases are also under the Old Code. Mr. Patnaik in support of his contentions cited Raghubans Prasad and Another Vs. State (Prabhu Dayal Missir) State v. Prakash Chandra Agarwalla 36 (1970) C.L.T. 485 and Kalandi ' Kalandi Charan Das and Ors. v. Sudam Parida AIR 1973 Cutt. 805. All these cases are also under the Old Code. In these cases the view taken is that an order of discharge is not a judgment within the meaning of Section 369 of the Old Code and can be reviewed by the trial Court. 4. In order to appreciate the rival contentions, it is necessary to quote the relevant provisions of both the old and new Code of Criminal Procedure. Section 251-A (2) of the Old Code - If, upon consideration of all the documents referred to in Section 173 and making such examination if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge against the accused to be groundless, he shall discharge. The corresponding provision in the New Code is Section 239 which runs thus: If, upon considering the police report, and the document sent with it u/s 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. In Section 239 of the new Code, the words "record his reasons for so doing" have been added. Section 369 of the Old Code is as follows: 369. Court not to alter judgment-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 or other instrument constituting such High Court, no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error. The corresponding provision in the New Code is Section 362 which runs as follows: 362. The corresponding provision in the New Code is Section 362 which runs as follows: 362. Court not to alter judgment.-Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. So in Section 362 of the New Code the words "or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court", which were found in Section 369 of the Old Code, have been omitted and the words "or final order disposing of a case" and "or arithmetical" have been added. 5. It is new to be examined whether the order or discharge passed by the learned Magistrate u/s 239 of the New Code, as in the present case, is a final order or not and whether the Magistrate has jurisdiction to alter or review the order of discharge passed by him. The decisions cited by Mr. Patnaik, i.e. Raghubans Prasad and Another Vs. State (Prabhu Dayal Missir) State Vs. Prakash Chandra Agarwalla, and Kalandi ' Kalandi Charan Das and Ors. v. Sudam Parida AIR 1973 Cutt. 805 : 38 (1972) C.L.T. 73, proceeded on the footing that the order of discharge is not judgment, and hence the Court has jurisdiction to alter or review u/s 369 of the Old Code. At that time the words "or final order disposing of a case" were not there, as found in Section 362 of the New Code. So the decisions cited by Mr. Patnaik have no application the facts of the present case as the present case is governed by Sections 239 and 362 of the new Code. 6. Section 251 A(2) of the Old Code and Section 239 of the New Code are word per word same except that the words "the accused and record his reasons for so doing" have been added in Section 239 of the New Code. The Law Commission in its 41st Report while introducing these words has observed: 21-3 Section 251A(2) provides that, xx xx xx Sub-section (2) does not require the Magistrate to record his reasons for discharging the accused. The Law Commission in its 41st Report while introducing these words has observed: 21-3 Section 251A(2) provides that, xx xx xx Sub-section (2) does not require the Magistrate to record his reasons for discharging the accused. As he has to reach that conclusion after a proper consideration of the documents and hearing both sides and his order of discharge is subject to revision, it is obviously necessary that he should record his reasons in the order. The words "and record his reasons for doing so" may be added at the end of Sub-section (1). So Mr. Ram argues that the addition of words "and record his reasons for doing so" goes to show that the order of discharge passed u/s 239 of the New Code is meant to be a final order. In Section 362 of the New Code, the words "or in the case of a High Court by the Letters Patent or other instrument constituting such 'High Court" have been omitted and the words "or final order disposing of a case" and "or arithmetical" have been added. According to Section 362, of the New Code an alteration or review by a Court would be permissible where provision therefore is made in this Code or by any other law for the time being in force. The Joint Committee while considering the Bill with respect to this provision has observed: the prohibition in this clause, should apply to every final order disposing of a case and not merely a judgment in a trial. The clause therefore has been suitably amended. So in view of Section 362 of the New Code, no Court can alter or review the judgment or final order. In view of the decisions of our High Court reported in State v. Prakash Chandra Agarwalla5 and Kalandi ' Kalandi Charan Das and Ors. v. Sudam Parida AIR 1973 Cutt. 805 : 38 (1972) CLT 73, that the order of discharge is not a judgment, it is to be seen whether the order of discharge passed u/s 239 of the New Code, as in this case, is a final order or not. 7. v. Sudam Parida AIR 1973 Cutt. 805 : 38 (1972) CLT 73, that the order of discharge is not a judgment, it is to be seen whether the order of discharge passed u/s 239 of the New Code, as in this case, is a final order or not. 7. It is an accepted principle of law that when a matter has been finally disposed of by a Court, the Court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside. In this case the learned Magistrate by his order dated 3-6-1977, after considering the materials placed before him and hearing both parties, considered the charges against the accused persons to be groundless and discharged the accused persons after recording his reasons for so doing. The order of discharge, in my opinion cannot be said to be provisional or interlocutory inasmuch as the Magistrate has finally decided that the charges against the accused persons are groundless. So the order passed by the Magistrate becomes final and after passing the order, he becomes functus officio and cannot alter or review the same in view of clear bar u/s 362 of the New Code. In the decision reported in Mohan Lal Magan Lal Thacker Vs. State of Gujarat the Supreme Court observed: However, generally speaking, a judgment or order which determines the principal matter in question is termed final. In this case, the Magistrate by his order dated 3-6-1977 had decided the controversy between the parties and had put an end to the controversy and he had nothing more to do in the matter. In a decision reported in Amar Nath and Others Vs. State of Haryana and Another while interpreting the term "interlocutory order" in Section 397(2) of tbe New Code their Lordships observed: The term "interlocutory order" in Section 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch tbe important right or the liabilities of the parties. It merely denotes orders of a purely interim or temporary nature which do not decide or touch tbe important right or the liabilities of the parties. Any order which substantially affects tbe rights of the accused, or decides certain rights of the parties cannot be same to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie u/s 397(2). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial Cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. xx xx xx Held, that the order of the Magistrate summoning the Appellant was one which was a matter of moment. If the Appellants were not summoned, then they could not have faced the trial at all, but by compelling the Appellants to face a trail without proper application of mind could not be held to be an interlocutory matter. but one which decided a serious question as to the rights of the Appellants to be put on trial. That being the position, a revision against the order was fully competent u/s 397(1) or u/s 482, because the scope of both these sections in a matter of this kind is more or less the same. In the decision reported in P. Chiranjivi v. Principal, M.K.O.G. Medical College, Berhampur and Anr.47 (1919) CLT. 126. where the order of the Magistrate framing charges against the accused persons was challenged and an objection was raised that it was an interlocutory order, and no revision would lie u/s 397(2) of the New Code, the Hon'ble the Chief Justice, after considering several decisions of the Supreme Court held that the order passed by the Magistrate is a final order as opposite to an interlocutory order. In a decision reported in Bhima Naik and Ors. In a decision reported in Bhima Naik and Ors. v. State 41(1975) C.L.T. 675, a Division Bench of this Court held: If the decision on issue puts an end to a suit or proceeding, the order is a final order. But if the suit or criminal proceeding is still have and has got to be tried in the ordinary way, no finality is to be attached to the order. It will be an interlocutory order. In a recent decision reported in Bindeshwari Prasad Singh Vs. Kali Singh it has been held: xx xx there is absolutely no provision in the Code of Criminal Procedure of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers namely, Section 561-A which, however, confers these powers, on the High Court and the. High Court alone. Unlike Section 151 of CPC Code, the subordinate criminal Courts have no Inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the Respondent was to move the Sessions Judge or the High Court in revision. In fact after having passed that order dated 23-11-1968, the Sub-Divisional Magistrate became functus officio and bad no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction. This being the position all subsequent proceedings following upon recalling the said order, would fall to the ground including order dated 3-5-1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. It was suggested by Mr. D. Goburdban that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. So in the above case the Supreme Court quashed the order of tbe Magistrate summoning the accused. 8, In view of the aforesaid position of law, an order of discharge passed u/s 239 of the New. Code is a final order and in view of Section 362 of the New Code, no Court can alter or review the same save as otherwise provided by this Code (Criminal Procedure Code. 1973) or by any other law for the time being in force except to correct a clerical or arithmetical error. 9. In this case the Magistrate by his order dated 3-6-1977. after considering the materials placed before him and hearing the parties, found that there is no prima facie case against the accused-Petitioners and discharged them u/s 239 of the New Code and has finally disposed of the .case and has become functus officio and he should not have entertained a fresh petition for reviving the case unless and until the previous order of discharge had been set aside. So in my view, the subsequent order dated 2-9-1978 summoning the accused-Petitioners for appearance and reviewing the order of discharge passed on 3-6-1977 is absolutely illegal and without jurisdiction. 10. In the result, therefore, the revision is allowed and the order dated 2-9-1978 passed by the Magistrate in G.R. Case. No. 394 of 1976 pending in the Court of S. D.J.M., Khurda is quashed. Revision allowed. Final Result : Allowed