VASUDEO AGARWAL Vs. RISHAV CHAND JAIN

JUDGEMENT

(1.) A complaint was filed against the petitioners by the opposite party before the Sub-divisional Magistrate of Patna alleging commission of offences by them under sections 406 and 120-B of the Indian Penal Code. After examining the complainant on solemn affirmation, the Sub-divisional Magistrate directed under section 202 of the Code of Criminal Procedure, 1898 (hereinafter to be referred to as the Code) an inquiry to be made by a Magistrate. The Magistrate made the inquiry and submitted a report to the Sub-divisional Magistrate who dismissed the complaint under section 203 of the Code. The opposite party preferred a revision, being criminal revision 162 of 1972, before the Sessions Judge, which was heard by the Additional Sessions Judge VIIth Court), who has allowed the revision and directed further inquiry into the complaint of the opposite party by his order dated 9.11.76. This revision is directed against that order of the learned Additional Sessions Judge.

(2.) The first point raised by learned Counsel for the petitioners is that the order of dismissal having enured to the benefit of the petitioners, the learned Additional Sessions Judge should have given an opportunity to the petitioners of being heard before depriving them of the benefit of the dismissal of the complaint under section 203 of the Code, particularly in view of the provisions contained in the proviso to section 436 of the Code. ft has further been contended that these petitioners had been added as parties in the revision case and that notices had also been ordered to be issued to all the persons who had been added as parties in the said revision but that notice had been served only on petitioner no. 1 and not on the others with the result that the said others did not have any opportunity of being heard before the impugned order was passed by the learned Additional Sessions Judge and that, therefore, the order of the learned Additional Sessions Judge dated, 9.11.76 directing further inquiry in the complaint against the petitioners be set aside and the case sent back to the learned Additional Sessions Judge directing him to give them an opportunity to be heard and then to decide afresh the question as to whether further inquiry should or should not be ordered.

(3.) So far as the first ground taken is concerned it is misconceived. Where a complaint has been dismissed under section 203 of the Code, it is not necessary to issue notice to the persons named as accused in the complaint before directing further inquiry under section 436 of the Code. Under section 436 a direction for further inquiry into any complaint, which has been dismissed under section 203 or sub-section (3) of section 204 of the Code or into the case of any person accused of an offence who has been discharged, may made. The proviso to that section places a restriction on the power of making a direction for further inquiry. It provides that no court shall make any direction under that section for further inquiry into the case of any person who has been "discharged" unless such person has had an opportunity of showing cause why such direction should not be made. It is quite manifest from the proviso that the restriction contained therein applies only to the third category of cases covered by section 436 i. e, the case of a person accused of an offence who has been discharged and not to the dismissal of a complaint under section 203 or under section 204 of the Code. The case on hand relates to the dismissal of a complaint under section 203 of the Code. In the circumstance, there can be no question of the application or attraction of the restriction contained in the proviso to section 436. It is well settled that if Before the accused is summoned under section 204 and the complaint is dismissed under section 203 of the Code, it is not necessary under law to issue a notice to the accused before setting aside the order of dismissal and ordering further inquiry into the complaint under section 436 of the Code,