PONNAIAH GOUNDER GURUSWAMI GOUNDER Vs. SENGOTTIAH

JUDGEMENT

(1.) This is a revision directed by the accused in C.C. No. 801 of 1983 on the file of the Sub-Divisional Judicial Magistrate, Gobichettipalayam, against the order passed by the learned District Judge, Erode, setting aside the order of dismissal under section 203, Cr.P.C. and direction fresh disposal.

(2.) The facts which are necessary for the disposal of the case are briefly stated as follows- The respondent herein filed a complaint against the petitioners alleging that on 20.1.1981 at about 7.00 a.m. all these accused armed with stones, sticks, crow-bar Aruval and knife and formed themselves into an unlawful assembly and trespassed into the land of the complainant and cut and removed the trees in the fence and also criminally intimidated the complainant and as such they committed offences under sections 147, 148, 447, 379 and 506(2), Cr.P.C. In respect of the same he preferred a complaint to the police, but the Police did not take action and dismissed the complaint without any enquiry. A private complaint was lodged. The learned Magistrate recorded the sworn statement of the complaint and passed the order as follows: C.C. 801/83 taken on file under sections 147, 148, 447, 379,506(2), Cr.P.C. and posted to 20.8.1983 for enquiry under section 202, Cr.P.C. Complainant is directed to produce witness. Bind over complainant.

(3.) Thereafter he examined the complainant as P.W. 1 and another witness as P.W. 2 under section 202, Cr.P.C. and for the reasons stated in his order, he dismissed the complaint under section 203, Cr.P.C. Aggrieved by the same the complainant/Respondent herein preferred Cr1. Rev. Petition No. 1/1984 before the learned Sessions Judge, Periyar District at Erode. The learned District Judge ordered notice to the accused who were the petitioners in this petition and after hearing both the parties set aside the order of dismissal and directed further enquiry under section 398, Cr.P.C. Aggrieved by the same this revision petition is filed by the respondents/accused. The learned counsel for the petitioners Mr. J. Raja Kalifulla, submitted that the order passed by the learned Sessions Judge is unsustainable as once the Magistrate has exercised his discretion under section 203, Cr.P.C. it is not for the learned Sessions Judge or even this Court to subscribe its own reasons and direct the Magistrate to hold further enquiry. Further there is no sufficient material to proceed with the enquiry in this case and consequently to take the case on file. According to the learned counsel the reason given by the learned Sessions Judge, namely that the Court below had taken cognizance and erred in dismissing the petition under section 203, Cr.P.C. is not sustainable. Further the learned trial Magistrate is perfectly justified in finding whether the allegations stated in the complaint are true or not and that there is no change in the old Cr.P.C. and the new Cr.P.C. In this connection the learned counsel drew the attention of this Court to the relevant provision of section 202, 203, Cr.P.C. and the case laws on this point. On the other hand the learned counsel for the respondent submitted that the accused has no locus standi to file the revision and only after the complaint was taken on file and processes were issued the accused comes into the picture and till then the accused has no locus standi to agitate the matter. The mere fact that the learned Sessions Judge issued a notice in the revision would not mean that the accused is entitled to file this revision. The learned Sessions Judge only directed further enquiry under section 398, Cr.P.C. and it is open to the Magistrate either to take cognizance of the offence or to dismiss the petition. In this connection the learned counsel for the respondent drew my attention to the decision rendered by me in C.C. Ganesan v. S.N. Rao. That was a case where the Sessions Judge in the revision preferred against the order of the Magistrate allowed the revision and directed the Magistrate to take the case of file. The accused preferred the revision against the said order of the learned Sessions Judge contending that there was no service of notice of hearing on the accused and that the order allowing the revision by the Sessions Judge against him without hearing him is not sustainable. The said contention was not accepted and I had the occasion to consider to the various rulings of this Court from Apparao v. Janakiammal, Thyggarajan v. Ayyamperammal, including the 41st report of the Law Commission, and held that the order passed by the learned Sessions Judge setting aside the order passed under section 203 of the Code and directing the Magistrate to take the case on file and issue process, without serving notice on the petitioner cannot be said to be in any way illegal or improper and it cannot be said that the same should be set aside and the petitioner should be given an opportunity of rehearing the revision. Hence there is no merit in the revision and since the accused comes into the picture only when the cause is taken on file and process is issued the question of giving an opportunity to the accused at that stage does not arise. In Ramachandra Odyar v. Emperor, it was held that the accused persons have no locus standi to appear for an enquiry under Chapter 16 of the Code and it even went to the extent of saying that the Sessions Judge's action in issuing notice to the accused was improper and even undesirable. In Somu alias Somasundaram v. State, it was held that, Till the process is issued by the trial Court, the petitioners do not get the status of the accused. Consequently, they have no right of audience before the revisional authority. The proviso to section 398, Cr.P.C. merely states that no court shall make any direction under this section for enquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause. But that contingency does not arise in this case as this is not a case of discharge by the trial court and hence the petitioners have no right of hearing and the issue of summons would be premature.