THANIKACHALA MUDALI AND OTHERS Vs. PONNAPPA MUDALI

JUDGEMENT

(1.) THE facts of the case out of which this revision petition arises are very simple and are fully set out in the judgment of the learned Sessions Judge. The petitioners were the accused in C. C. No. 162 of 1945 on the file of the Additional First Class Magistrate, Ranipet. That was a case brought by Ponnappa Mudali charging the accused with having defamed him. After four prosecution witnesses were examined the case stood posted to 24 -14946 for the examination of the rest of the prosecution witnesses. When the case was called on that date, the complainant was said to be absent and the accused were discharged under S. 259, Criminal P. 0. The complainant did not file a revision petition against that order of discharge, but he preferred a fresh complaint against the petitioners for the same offence as he was clearly entitled to do under the law. The Additional First Class Magistrate dismissed that complaint after recording the sworn statement of the complainant and without issuing process to the accused. The complainant preferred a revision petition in the Sessions Court of Vellore against the order of dismissal of the complaint, and the Sessions Judge set aside that order and directed the restoration of, and further enquiry into, the complaint.

(2.) THE main objection raised for the petitioners is that the Sessions Judge ordered further enquiry against the petitioners without notice to them and without giving them an opportunity to show cause, as required in proviso to S. 436, Criminal P. C. It is pointed out that this was the second complaint and that in the prior proceeding the accused had appeared and had contested the case and that thereafter the accused were discharged. I find no force in this contention as the proviso to S. 436 only directs notice in the case of "any person who has been discharged" and not in the case of a person to whom no process had been issued and when the complaint has been dismissed without notice to him. It hag been held by a Full Bench of this Court in 49 Mad. 9181: