A Sessions Judge can order a further inquiry under Section 436, Criminal Procedure Code, without issuing notice to the accused in cases of dismissal under Sections 203 or 204 (3), and the Sessions Judge is justified in interfering with the Magistrate's order of dismissal if the Magistrate has relied on his personal knowledge of earlier disputes between the accused and the complainant's lessor.

Ranganadham Chetty, J.

[1] This is a petition by the accused for revising the order of the Additional District and Sessions Judge, Nellore dated 15-6-1956 made on Criminal Revision Petition No. 10 of 1956. The, facts of the case, in brief, are, China Fullalah1; claiming to be a lessee of certain lands from one Ramachandraiah, minor represented by his mother, Kasamma, filed a complaint charging the 37 accused with offences punishable Under Sections 379, 143 and 447, I, P.C.

He alleged that he took possession of the land from the aforesaid Kasamma and raised a Ragi crop in the beginning of December 1955. He was tending the crop with water taken from the well and the crop was in fact, ripe for being cut in four days' time when all the accused unlawfully entered on the land, and cut and carried away the crop.

[2] The Sub-Magistrate, Kanigiri, took a sworn statement from the complainant and dismissed the complaint as relating t6 a dispute of a civil nature. The complainant preferred a revision before the Additional District and Sessions Judge, who, on a perusal of the records and hearing the complainant, held that it was too premature for the Magistrate to come to a conclusion about the civil nature of the complaint and disapproved of the Magistrate importing his personal knowledge of certain anterior criminal litigation between the complainant's lessor and the 4th accused touching the land in question. He set aside the order of dismissal and directed a further enquiry.

[3] The accused are now asking this Court to quash the order of the Additional District & Sessions Judge on four grounds:

1. that no notice was issued by the Additional District and Sessions Judge to the accused before passing the order in question and thereby denying them an opportunity to be heard;

2. that the 'case was prima facie of a civil nature and when the Magistrate gave an express finding that it was so, the Sessions Judge had no justification for interference;

3. that a long delay of 2 years has elapsed and it is inexpedient that the further enquiry ordered by the Judge should now be proceeded with; and.

4. that the learned Sessions Judge had no right to restore the case to file.

[4] Objection (1): The order of the Sessions Judge was made under Section 436, Criminal Procedure Code, which is standing thus:

On examining any record under Section 435 or otherwise, the High Court nr the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged:

Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity, of showing cause why such direction would not be made.

[5] The Judge is competent to make an order for a further inquiry in cases of a dismissal Under Sections 203 and 204 (3) and in cases where the accused is discharged by the Magistrate. It was held in Appa Rao Mudaliar v. JanaMammal A.I.R. 1927 Mad 19 (PB) (A), that a dismissal under Section 203 or 204 (3) Criminal Procedure Code does not amount to a discharge. An accused can be said to be discharged only when a charge is framed. Discharge would be Under Sections 209, 253 or 259, Criminal Procedure Code.

Of the three categories referred to in the main provision, viz., dismissals under Section 203 or 204 (3) and discharge under the aforesaid sections, it is only when the case falls under the third category that a notice has to go before ordering the further inquiry. The proviso expressly makes the notice incumbent only in cases of discharge. It means that in cases of dismissal under the other two categories viz., Section 203 or 204 (3), no notice to the accused is necessary.

[6] The learned Sessions Judge made an