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 order without notice to the accused. It might have been open to the Judge to issue notice; but the omission of it cannot certainly render the order illegal. The principle that no order should be made to the prejudice of a person without giving him an opportunity to be heard has no application to the present case because the accused would certainly get a hearing after summons is issued under Section 204 and the trial commenced.
But even before the Magistrate takes the case on file the accused has no right to be heard. If the accused can be heard to say that he has a right to get notice before a further inquiry is ordered under Section 436 by the Sessions Judge, with an equal degree of plausibility he may urge that even before the Magistrate takes cognizance of cases and issues summons the accused should, on the principle of above maxim, be given a notice and a hearing.
That is certainly not the policy of the Criminal Procedure Code. At the preliminary stage when the Magistrate has only to consider whether a case prima facie is made out on the complaint, there is no need to give an opportunity to the accused to be heard. In fact, such a course would be detrimental to the accused himself, says Coutts-Trotter, J., in the decision cited above, because when a notice goes, the accused may appear or may not appear.
If he does not appear, his absence might be construed adversely to him and if he does appear, he will be under a constraint to commit himself to statements which he might otherwise have the right to reserve till he enters on his defence after the commencement of the proceedings. Apart from it, when the accused has ample opportunities of making himself heard after the commencement of the trial from the stage of the service of summons, there is absolutely no necessity for protracting the proceedings even in the preliminary stage. It makes little difference to the accused whether he is heard before the case is taken on file or after it is taken cognizance of.
7. When the Code provides for no notice being issued at the preliminary stage of taking cognizance and before summonses are issued by the Magistrate, it stands to reason that all proceedings in revision at the instance of an aggrieved complainant when the case is thrown out, can foe gone into without notice to the accused.
8. Kirpa Ram Jagan Nath v. Hans Raj A.I.R. 1950 EP 18 (B), is another case cited by the complainant in regard to the question of notice. In fact, the Code denies the accused locus stand in inquiries under Chapter 16, which covered Sections 203 and 204, Criminal Procedure Code. See Ramachandra v. Emperor A.I.R. 1928 Mad 1198 (C) too.
9. I find that the order of the Sessions Judge is not illegal by reason of the absence of a notice to the accused.
10. Objection (2):The learned Advocate for the petitioner cites a number of authorities to show that when the subject-matter of complaint is of a civil nature, no court ought, to take cognizance of it. See Hiralal v. Chowthmal A.I.R. 1950 Assam 202 (D), In re L. M. Soares 2 Weir 246 (E), In re Bakir All Khan Sahib A.I.R. 1917 Mad 831 (f), Murugappa Chettiar v. Morangamuthu Raja 1937 Mad WN 1238 (G).
11. Parties have always been discouraged from seeking redress in criminal courts in disputes which fundamentally savour of a civil nature. But the mere fact that redress can be had in a civil court does not make any offence the less criminal. It would be inexpedient to discuss the facts of the case in relation to this aspect and express my view as to the real nature of the dispute.
In fact, the learned Sessions Judge too refrained from expressing any opinion on this question and all that he did was merely to order a further inquiry. Only one case cited by him may be referred to. That is Kannayya v. Venkatesam A.I.R. 1937 Mad 480 (H), the facts of which bear no substance to those on hand. There, it was a case of trespass on a vacant site of which neither party was in possession. The complaint here is that the Ragi crop was raised by the complainant and that he was in, possession of the land as well as the crop.
12. The order of the learned Judge was made in the exercise of the discretion vested in him under Section 436, Criminal Procedure Code and it is only where the order is shown to be manifestly unjust or perverse that the High Court can possibly Interfere. He had good reasons for interference. In particular, he discountenanced the learned Magistrate relying on his personal knowledge of the earlier disputes between the 4th accused and the complainant's lessor, Kasamma. Paragraph 4 of his order starts with the announcement
having had some knowledge of the facts involved herein while trying C. O. 103/56 and 122046 I made a thorough examination of the complainant-petitioner.
He was certainly not right in using the knowledge gained in a dispute to which the complainant was not a party, in approaching the question involved in the present complaint. For the petitioners reliance is placed on Ram Gir v. Ravisaran Singh A.I.R. 1935 All 383 (I), where the joint Magistrate had made a local enquiry and came to a conclusion that the story of the complainant was not true and Allsop, J., of the Allahabad High Court did not disapprove of it.
But, I do not find any indication of an approval of the procedure or of a disapproval. Only the fact was mentioned. It would indeed be a travesty of all known principles of justice, if Judges and Magistrates are allowed to use their knowledge gained otherwise than by the means allowed to them by law in judging the truth of a case. Here, even before the complainant was examined, the Magistrate admits that he had knowledge of the facts and, was obviously using that knowledge. The learned Sessions Judge was perfectly right in disapproving of the procedure.
13. Objection (3):Again the fact is emphasized that 2 years have elapsed. For much of the delay it is only the petitioners that are responsible. This Revision itself was filed several months late and it is not alleged that there was any appreciable interval between the Magis- trate's order of dismissal and the Sessions Judge's order of further inquiry.
14. Objection (4):The ground urged, though not raised in the Revision Petition, is that the learned Sessions Judge had no right to restore the case to file, in Re Arikatla Nagireddi A.I.R. 1938 Mad 112 (J), supports the petitioners.
15. under Section 436, Criminal Procedure Code, the Sessions Judge can only order a further inquiry but not straightaway direct a restoration of the case to file. The- case was transferred from the file of the Sub-Magistrate's Court at Kaniglri to Kandukur and the Magistrate at Kandukur will have to hold a further inquiry. The order of the Sessions Judge is modified by deleting the direction that the case is restored to file and ordering that the further inquiry will go on before the Sub-Magistrate of Kandukur.
16. Subject to this modification, the petition stands dismissed.