R.L. Gupta, J.
1. A complaint was filed by Motilal non-petitioner No. 2 against petitioners & some five other persons for the offence under Sections 447, 324 and 147 IPC in the court of Judicial Magistrate, Chhoti Sadri. The complaint was dismissed under Section 203 Cr.P.C. The complainant preferred a revision against that order of dismissal of complaint before the Sessions Judge. Pratapgarh The learned Sessions Judge partly accepted the revision observing that prima facie a case under Section 323 and 324 IPC was made out against the petitioner. He directed the Magistrate to proceed further in the matter keeping in view the observations made by him, vide his order dated 30-7-1977. It is against this order that the petitioners have come before this Court.
2. I have heard learned Counsel for the petitioners, the learned Public Prosecutor and the learned Counsel for the complainant.
3. The contention on behalf of the petitioners that the revision Bled by the complainant before the Sessions Judge was time barred is not tenable The order of dismissal of the complaint passed by the Magistrate was dated 19-4-1976 & the revision was filed before the Sessions Judge on 5-5-76 i.e., within time The petitioners were, however, subsequently added on 4-8-1976 their addition on a subsequent date hardly matters. They were in fact rot even summoned by the learned Magistrate & at that stage they could hardly be said to be necessary parties in the revision filed before the Sessions Judge No notices to the petitioners were necessary when the Sessions Court or the High Court directed further enquiry into complaint dismissed under Section 203 CrPC The revision petition filed before the Sessions Judge was therefore, within time.
4. The next contention of the learned Counsel for the petitioner is that in view of the provisions of Section 398 Cr.P.C. if the learned Sessions Judge was of the opinion that further enquiry was necessary in the complaint he could have only directed the Magistrate to make further enquiry into the complaint which was dismissed under Section 203 Cr.P.C. It was not within the powers of the learned Sessions Judge to have ordered the summoning of the petitioners. If the case was remitted for further enquiry it was within the discretion of the Magistrate to act on it according to law after holding further enquiry but the learned Sessions Judge could not have, by his order, fettered the discretion of the learned Magistrate. Nimba v. Bhana Ram 1957, R.L.W. 627 was relied upon by the learned Counsel for the petitioners. Mr. Saluja for the complainant & Mr. Bhandari do not dispute this legal position. The order of the learned Sessions Judge observing that a prima facie case is made out against the petitioners under Section 323 and 324 is therefore, bad in law and is liable to be quashed.
5. Mr. Saluja has submitted that in compliance of the imputed order of the learned Sessions Judge, the Magistrate has already summoned the petitioners. No revision against the order of the learned Magistrate has-been preferred. The learned Public Prosecutor and the counsel for the petitioners submit that once the impugned order of the learned Sessions Judge is quashed the subsequent order of the learned Magistrate ordering the summoning of the petitioner also does not stand However, as the Order of the learned. Magistrate summoning the petitioner has not made a ground in the present application by the petitioners, I do not consider it proper at this stage to express any opinion in this matter.
6. As pointed out above, the impugned order by Shri S.R. Bhanshali, Sessions Judge, dated 30-7-1977 is set aside and the case is remanded back to the Sessions Judge to pass necessary orders according to law.