A. Misra, J.
1. 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 Under Section 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 Under Section 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 Under Section 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 Under Section 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 Under Section 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 Under Section 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 : 1SCR639 , Chandradeo Singh v. Prakash Chandra Bose, 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 tho 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 person.
(4) The Magistrate has to. be satisfied whether there is sufficient ground for'proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate to support a conviction can be determined only at the trial and not at the stage of enquiry.
(5) Whatever the defence an accused may have can only be enquired into at the trial. If, however, on the evidence given by the complainant reasonable defence is established or the accused is entitled to benefit of donbt, the complaint can be dismissed.
(6) In coming to his conclusion, a Magistrate is entitled to consider the evidence taken by him or recorded in an enquiry Under Section 202 or statements made in the investigation under that section, as the case may be. He is not entitled to rely upon any material besides those.
4. The point for consideration in this case is whether applying the aforesaid tests, the impugned order passed by the learned Additional Sessions Judge can be said to be invalid or passed on insufficient grounds. In the present oase, it is not disputed that the Executive Magistrate. 1st Class received the complaint for enquiry Under Section 202, Criminal P.C. on 2.3.65. Notice was given to the police authorities and repeated adjournments appear to have been taken by them on applications expressing difficulty to attend on some ground or other to watch the proceedings. In all, five witnesses have boen examined by the complainant. A porusal of the depositiocs shows-that each of these witnesses has been cross- examined at length and except in the oase of witness No. 2 where the oroBS-examination is noted as if it was by the Court, the rest of the depositions show that they wore simply cross-examined as in a regular trial. No doubt, as has been observed by the Supreme Court, the Magistrate himself is free to put such questions to witnesses produced before him by the complainant as he may think proper in the interests of justice, but it is not permis-sible for the Magistrate to put any question at the instance of the person named as accused nor can the opposite party be permitted to cross-examine. In the case of at least four of the witnesses, the record shows that the cross-examination doss not purport to be in the nature of answers eliaited to questions put by the Court. The learned S. D. M., who passed the order Under Section 203, Criminal P.C., while dismissing the complaint has himself observed:,
''It clearly appears that the learned Magistrate allowed some questions to be put to the witnesses on the suggestions made on behalf of the persona complained against at the time of enquiry proceedings,'
This itself vitiates the enquiry and is a sufficient ground which justified the learned Additional Sessions Judge to set aside the order and direct further enquiry.
5. Apart from it. in the present oase, he hag not confined himself to consideration of material which he is legally entitled to is patent from the following observations in para 12 of his order ;
Having carefully considered the evidence produced before the learned enquiring Magistrate in course of enquiry made into the complaint Under Section 202, Criminal P.C. and the allegations made in the complaint petition, the initial statement of the complainant on solemn affirmation, the evidence of the witness examined Under Section 510, Criminal P.C., 'in course of further enquiry made by me into the complaint, the case diary and the records of the said G. E. Case No. 91/95 relating to the theft committed in the said house of Jagabandhu Sahu at Manjuri Road where the deceased was . allegedly kept confined, the postmortem report of the medical officer, Bhadrak and the facts and circumstanoes of the case, I am quite clear in my mind to conclude that there is absolutely no evidence against the accused persons in regard to their alleged oomplioity with the murder of the deceased.
Thus, he has committed this further illegality by relying on extraneous material. On both these grounds, the order of the learned S.D.M., dismissing the complaint uoder 8. 203, Criminal P.O., is liable to be got aside and the learned Aditional Sessions Judge was right in setting aside the order and directing further enquiry.
6. Hence, I find no merit in this revision which is accordingly dismissed.