R. Ramaswamy Mudaliar and Others vs K.R. Venkatachalam

S.A. Kader, J.—This is an application u/s 482, Code of Criminal Procedure, to quash the proceedings in C.C. No. 70 of 1983 on the file of the Judicial First Class Magistrate No. 1, Salem. The accused are the Petitioners.

The brief facts are these: The Respondent herein has filed a private complaint in the Court of the Judicial First Class Magistrate No. 1, Salem, in C.C. 70 of 1983, against the Petitioners, for offences under Sections 420 and 406, I.P.C. The Judicial First Class Magistrate by his order, dated 7th April, 1982, discharged the Petitioners u/s 245(2), Code of Criminal Procedure. The Respondent herein took up the matter in revision before the Court of Session, Salem, in Cr.R.C 34 of 1982, and the Additional Sessions Judge, Salem, without notice to the Petitioners by his order, dated 10th December, 1982 allowed the revision, set aside the order of discharge passed by the Judical First Class Magistrate and remanded the case to the court below for fresh disposal. The order of the Sessions Judge is therefore, challenged and the Petitioners have prayed for quashing the proceedings before the Judicial First Class Magistrate. However, the learned Counsel for the Petitioners confined his arguments challenging the order of the Additional Sessions Judge, setting aside the order of the Judicial First Class Magistrate without giving notice to the Petitioners.

The learned Additional Sessions Judge in Cr.R.C. 34 of 1982, has set aside the order of the Judicial First Class Magistrate discharging the Petitioners accused u/s 245, (2) Code of Criminal Procedure, and has remanded the matter for fresh disposal. But, in passing this order, be has not given notice to the Petitioners who were Respondents before him in Cr.R.C 34 of 1982. It is therefore, contended by the learned Counsel for the Petitioners that the order is void in law. According to the learned Counsel for the Respondent the Petitioners had not entered appearance before the Judicial First Class Magistrate in C.C. No. 103 of 1983, and hence there was no necessity for the Sessions Judge to give notice to the Petitioners, who were the Respondents in Crl.R.C. 34 of 1982, before passing orders therein. But, this contention cannot be accepted .Section 397, Code of Criminal Procedure, of 1973, empowers the Sessions Judge to call for and examine the records of any proceeding before any inferior criminal Court situate within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceedings of such inferior court. Section 398, Code of Criminal Procedure, which deals with the powers of the High Court or the Sessions Judge to order fresh enquiry runs thus-

On examining any record u/s 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make further enquiry into any complaint which has been dismissed u/s 203 or Sub-section (4) 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 should not be made.

The proviso which is mandatory in character applies where the accused has been discharged u/s 245 or 249, Code of Criminal Procedure. No notice would be necessary where further enquiry is directed into a complaint which was dismissed u/s 203 or 204(4), Code of Criminal Procedure. The proviso directs notice in the case of any ''person who has been discharged''. In as much as the Petitioners herein have been discharged u/s 2, 5(1), Code of Criminal Procedure, notice to them is imperative before ordering fresh enquiry. This mandatory provision has not been complied with by the learned Additional Sessions Judge, and the order passed by him directing fresh enquiry without giving notice to the Respondents therein, who are the Petitioners herein is not valid in law and has to be set aside.

In the result, the petition is allowed in part. The order of the Additional First Class Magistrate, Salem in Cr.R.C. 34 of 1982, dated 12th June, 1982, is set aside and the matter is remanded to him for fresh disposal after giving notice to the Respondents herein.