1. This is a criminal revision from an order dated the 20th of December, 1924, contained in the judgment in a case against the opposite party, directing that a case against the present applicants be started under Sections 147 and 323 of the Indian Penal Code to be tried by a Deputy Magistrate.
2. The police challaned the members of the opposite party under Sections 147 and 325 of the Indian Penal Code. A cross-complaint was filed by the accused persons in that case against the complainants under Sections 147 and 323. A police report on this complaint was called for and after the accused in the case challaned by the police had been convicted, the learned Magistrate dismissed the complaint of these accused persons against the complainants under Section 203 of the Code of Criminal Procedure.
3. The accused parsons appealed to the learned Sessions Judge who, upholding their convictions, dismissed their appeals. He felt inclined to hold that there was a free fight between both parties and neither could have claimed a right of private defence. That finding of course is in no way binding on the party consisting of the complainants, nevertheless it was open to the learned Judge to order that further enquiry should be made into the complaint which had been dismissed under Section 203 of the Code of Criminal Procedure. The learned Advocate for the applicants contends that this order is improper because it was passed without any notice to his clients and his contention is that no further enquiry should have been ordered without first giving an opportunity to the applicants to show cause.
4. Under the old Code of Criminal Procedure it was held that when a complaint was dismissed under Section 203, it was not necessary to issue notice to the accused person before ordering further enquiry. In the case of Angan v. Ram Pirbhan (1913) 35 All. 78, Tudball, J. pointed out that such a notice was quite unnecessary. That case has been followed subsequently by Banerji, J. in the case of Emperor v. Liagat Hussain (1918) 40 All. 138.
5. Section 436 of the old Code, however, has been amended under the new Code and a proviso to the following effect has been added:
Provided that no Court shall make any direction in this section for enquiry 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.' It is clear, however, that this proviso cannot apply to a dismissal of a complaint under Section 203; it only applies to the case where an accused person has been discharged. When no process is issued to the accused at all and he does not appear in Court and the complaint against him is dismissed summarily under Section 203, the accused person cannot be said to have been 'discharged.' It is only after he has appeared in Court and the evidence against him is found to be insufficient so as to make it unnecessary to call upon him to enter upon his defence that he can be discharged. Under the old Code the Courts were unanimous that in the case of the dismissal of a complaint under Section 203 notice was not necessary. The amendment has, in my opinion, left these rulings untouched, for it is confined to the case of discharge only and does not apply to the dismissal of a complaint either under Sections 203 or 204.
6. The application, therefore, has no force and is dismissed.