1. This is an application in revision against an order of the Sessions Judge of Patna directing a further enquiry under Section 436, Criminal P.C. It appears that on the evening of 31st March 1940, the opposite party lodged an information with the police about offences under Sections 147, 379 and 436, Penal Code, against the first seven petitioners before me. The police investigation took a long time, and on 10th May 1940 the opposite party put in a petition to the Sub-divisional Magistrate praying that a charge sheet may be called for from the police, and the accused persons, namely the first seven petitioners who were accused in the first information, as well as the six other persons who are among the petitioners before me, be placed on their trial. Three days afterwards the Magistrate disposed of the police report which was what they called a final report as distinguished from a charge sheet, and ordered that the case be entered as true under Sections 147 and 379, Penal Code, but as a case of insufficient evidence. On the application made by the opposite party on 10th May, the Magistrate on this date merely passed the order "file." The learned Sessions Judge was moved in revision and treated this order "file" passed on the opposite party's application of 10th May as an order summarily dismissing a complaint.
2. Mr. Jafar Imam who appears for the petitioners suggested that though similar applications filed by parties who were dissatisfied with a police report have been treated in many reported decisions as petitions of complaint on which the petitioners must be examined, there is a distinction attaching to anticipatory protest petitions, that is to say, petitions made to the Magistrate before the receipt of the police report. The only distinction that I can see seems to be that an anticipatory protest petition may possibly call for no action at all if the police report that is received afterwards actually places the accused persons on their trial. This position can of course never arise in connexion with petitions of protest filed after the receipt of the police report.
3. But apart from this, it seems to me that the two stand on much the same footing. It is also common ground before me that it has actually been held on more than one occasion in this Court that such petitions amount to petitions of complaint on which the petitioners must be examined under Section 200.
4. It is therefore impossible to interfere with the order of the learned Sessions Judge on the footing that he erred in treating the application made by the opposite party on 10th Mayas a complaint.
5. It was also suggested on behalf of the petitioners that this was not a case in which a further enquiry should have been ordered, but that the form of the order of the Sessions Judge should have been somewhat different. The answer to this is that Section 436 specifically authorizes the Sessions Judge in a case of this kind to direct the subordinate Magistrate concerned "to make further enquiry." My attention was drawn to the fact that petitioners 8 to 13 were not named in the first information at all. That may be, but the point does not really arise at the present stage. It will be for the Magistrate who makes the further enquiry and who deals with the case to decide how far any distinction can be made between the first seven petitioners and the next six.
6. I cannot go into the merits of the case at this stage any more than could the learned Sessions Judge; and indeed, learned Counsel for the petitioners has carefully, and very properly refrained from taking me into the merits of the case.
7. The application in revision fails and is dismissed.