The Magistrate erred in allowing the police officers to participate in the enquiry and in permitting the cross-examination of witnesses at the instance of the accused.

ORDER

A. Misra, J. - Petitioner No. 1 is the sub-Inspector and petitioners Nos. 2 to 4 are constables. On 19.2-65, cne Jagabandhu Sahu of Manjuri Eoad lodged an P. I. E, alleging that a dacoity was committed at his house on the night of 18.2 65. Opp. party filed a complaint before the S. D. M., Bhadrak on 24-2-65 alleging that in connection with the aforementioned report of dacoity, her husband Chandra, moni Jena as well as his brother and brother's son were taken to the house of Jagabandhu where they were brutally assaulted, as a result of which, Chandramoni died. Thereafter, petitioners secretly carried the dead body and put it on the railway track to make it appear that death resulted due to falling under a moving train. This complaint was sent by the 8. D. M., Bhadrak to the Magistrate, 1st Class (Exe. cutive) for enquiry u/s 202, Criminal P.C. The enquiring Magistrate submitted his report on 19 6-65 expressing the opinion that the complaint was malicious and did not warrant taking cognizance. After reoeipt of the report, the learned 8. D. M. made further enquiries, finally accepted the report and dig. missed the complaint petition u/s 203 Criminal P.C. on 15-1-66. Against the said order of dismissal, opp. party filed & oriminal revision. The learned Additional Sessions Judge by his order dated 10-2-67 set aside the order of dismissal and directed further en-quiry. It is against this order that the present revision petition has been filed by the petitioners.

2. The only point urged by learned Counsel for petitioners is that the learned Additional Sessions Judge has erred in setting aside the order of dismissal and directing further enquiry on sufficient grounds. Acoording to him, the learned Additional Sessions Judge passed the aforementioned order mainly on the ground that the order of the S. D. M. is vitiated as in the enquiry u/s 202, Criminal P.C. police officers were permitted to parti, cipate. For opposite party, on the other hand, it is contended that from the record it is patent that two serious illegalities were committed during the enquiry u/s 202, Cri. ruinal P.C.,and as such, the learned Additional Sessions Judge was right in setting aside the order of dismissal and directing further enquiry.

3. For a proper appreciation of the tions, it is necessary to examine the the provisions contained in Sections 202 and iioJ Criminal P.C. An enquiry u/s 202, Cri-\ minal P.C. is to be directed only for the purpose of ascertaining the truth or false-hood of the oomplaint. Section 203, Criminal P.C. empowerr the Magistrate to dismiss the com. plaint, if after consideration of the statements on oath of the complainant and witnesses and the result of investigation or enquiry, if any u/s 202, Criminal P.C., he in his judgment thinks that there is no sufficient ground for proceeding. The Supreme Court in the decision reported in Chandra Deo Singh Vs. Prokash Chandra Bose and Another examined the scope of these provisions and the principles laid down may be summarised as follows ;

(1)' The entire scheme of Chap. XVI of the Criminal P.C. showa that an accused person does not come into the picture at all till process is issued, though that doeB not preclude him from being present either in person or through counsel or agent with a view to be informed of what is going on when an enquiry is held by a Magistrate.

(2) The accused has no right to take part in the proceeding nor has the Magistrate any jurisdiction to parmit him to do so, Bince, the very question for consideration is whether he should be called upon to face an accusation,

(3) Though the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant, as he may think proper in the interests of justice, it is not open to the Magistrate to put any ques- . tion to witnesses at the instance of the person named as accused, but against whom process has not been issued nor is the Magistrate entitled to examine any witness at the instance of such