DR. KUMAR KISHORE MANDAL & ANOTHER Vs. SHRI KAMAL DEVA THAKUR AND 3 OTHERS

JUDGEMENT

(1.) This is an application under Sec. 452 of the Code of Criminal Procedure (hereinafter 10 be referred to as 'the Code') for quashing an order dated 5.3.1981, passed by the third Additional Sessions Judge, Bettiah in Criminal Revision No. 75 of 1980, which was order passed under Sec. 398 of the Code, directing further enquiry to be held in Complaint Case No. 1087 C of 1977, and this application is also directed against the sic order of the Judicial Magistrate, Shri H.K. Varma dated 21.8.1981, which was passed in pursuance of the order of Addl. Sessions Judge directing the present petitioner to be put on trial and also ordering processes to be issued against them under Sec. 204 of the Code. The relevant fact relating to this application is that opposite party no. 1 of this application had filed a Complaint Case (Complaint Case No. 1087C/77) against these two petitioners on certain allegations which, according to the complainant, disclose offences under Ss. 342, 347, 500, 504 of the Indian Penal Code. The complainant being examined on solemn affirmation, the case was transferred by the Chief Judicial Magistrate to one Judicial Magistrate, Shri Prem Ranjan Prasad Verma for enquiry and disposal of the case under Sec. 192(1) of the Code. Thereafter, on the transfer of the case to that Magistrate, another Magistrate, Shri R.P. Pandey was in session of the case, who on enquiry under Sec. 202 of the Code dismissed the complaint under Sec. 203 of the Code by order dated 17.6.1980. Against that order the complainant filed the above mentioned Criminal Revision No. 75/80, which was disposed of by the Additional Sessions Judge, Bettiah, who by his judgment and order dated 5.3.1981, set aside the order of dismissal and directed further enquiry to be made in the case by the Judicial Magistrate. The present application is firstly to quash this order. The second prayer in this application is to quash also the subsequent order which the Judicial Magistrate, Shri H.K. Varma by his order dated 21.8.1981, after holding further enquiry in the case in pursuance of the order passed in the Criminal Revision No. 75/80, took cognizance against the petitioners and directed them to be put on trial for the offence under Ss. 500 and 347 of the Indian Penal Code.

(2.) So far as the first part of this application is concerned which is directed against the order passed in Criminal Revision No. 75/80, the only point that has been canvassed by the learned counsel for the petitioners is that no notice was served on the petitioners in that. Criminal Revision, and that as such they had no opportunity of showing cause before the learned Additional Sessions Judge as to why the said order for holding further enquiry be not passed in the case. The learned counsel in this respect has relied upon the provisions contained in the Proviso to Sec. 398 of the Code Sec. 398 runs as follows :

(3.) The learned counsel has based his contention simply on the Proviso quoted above. But the learned counsel has missed the contents of this Proviso and has made an erroneous conclusion that the opportunity of showing cause has to be given by the learned Additional Sessions Judge while directing further enquiry in all types of cases mentioned in the first para of this section. It may be noted that this Sec. contemplates an order of further enquiry to be passed under this Sec. in different circumstances of the case as specified therein. Those different types of cases are (1) where the complaint has been dismissed under Sec. 203 of the Code, or (ii) where it has been dismissed under sub Sec. (4) of Sec. 204 of the Code and (iii) where a person, accused of an offence has been discharged. It may be noticed that the Proviso attached to this Sec. deals with only the last type of the case, namely, where an accused has been discharged. Only with respect to such a case where an accused has been discharged, this Proviso directs that the High Court or the Sessions Judge while directing further enquiry under this Sec. shall not make such a direction unless such person against whom the order is being passed, had an opportunity of showing cause why such direction should not be made. The rationale of this Proviso is added only with respect to the last type of case, namely, where an accused has been discharged, is based on the reason that in such a case the accused has appeared in the criminal case and after his appearance, he was discharged, presumably under Sec. 245 of Sec. 249 of the Code. But in a case like pre -sent one which has been dismissed by the Magistrate under Sec. 203 of the Code, since the accused has no locus standi to appear in the enquiry under Sec. 202 of the Code, no notice was required to be given to him even when the Sessions Judge in the Revisional jurisdiction set aside the older and directed further enquiry, under the law as that is contained in this Proviso. There are several decisions of the different High Courts including that of this Court in support of this view. These are in the cases of Sheo Narain Singh vs. Kara Pertap Rai reported in A.I.R. 1919 Patna 567, Thani -kachala Mudali & ors. vs. Ponnappa Mudali reported in A.I.R. 1917 Madras 389, Emperor vs. Dhondu Bapu Gujar reported in 29 Bombay Law Reporter, 713 and A S. Puri vs. K L. Ahnja reported in : A.I.R. 1970 Delhi 214.