The respondents-accused in Cr.R.C. 47 of 1984 on the file of the II Addl. Sessions Judge, Salem have preferred this application to set aside the order passed by the said court directing further enquiry by another Magistrate. The facts which are necessary for the disposal of this petition are as follows : The first respondent herein preferred a private complaint against these petitioners under sections 148, 147, 109, 114, 427, 435, 448 and 398, I.P.C. alleging that they came in a body armed with deadly weapons, under the pretext of evicting the complainant and the members of his family, trespassed into the house, broke open the lock and demolished the house and committed dacoity of the valuable articles and thereby caused loss to the extent of Rs. 25, 000/-. It is also submitted that the suit filed by the complainant already was pending against petitioners 1 to 6. In the said suit, a Commissioner was appointed and he after inspecting the suit property noted the damages caused to the building by setting fire to it and also gallnut stored therein. He sent telegrams to the higher authorities and reported the matter to the local police. Police did not take any action in the matter. Hence, the complaint. The Judicial Second Class Magistrate, Sankagiri, before whom the said case was filed, examined P.Ws. 2 to 8 and marked Exs.P1 and P2 and dismissed the complaint holding that no case is made out for issue of process. Aggrieved by the same, the complainant preferred a revision before the Sessions Judge. The learned II Addl. Sessions Judge, Salem, came to the conclusion that the learned Magistrate himself after recording the sworn statement took the case on file and issued process, but again scored it, and instead of satisfying himself whether there is sufficient ground for proceeding, he disposed of the case as if he delivered the judgment after contest, and that the approach of the Magistrate is erroneous. Consequently, he set aside the order of the Magistrate and ordered further enquiry by some other Magistrate. Aggrieved by the same, the present petition is filed by the accused.


2. According to the learned counsel for the petitioners the order passed by the learned Sessions Judge is not valid in law since no opportunity was given to the petitioners to represent their case and as such the whole order is to be struck down as it is invalid under law. It is further stated that the trial Magistrate dismissed the case on the ground that a civil dispute is converted into one of criminal prosecution. There is absolutely nothing to interfere with the said finding and that the first respondent-complainant has not made out a case that he was in possession of the property on the date of occurrence. On the other hand the learned counsel for the first respondent submitted that the remedy of the petitioners is only to file a revision under S. 397(2), Cr.P.C. against the said order and that the accused were not entitled to notice at that stage as the complaint was not taken on file. Further, since the petition is filed after the period of limitation, it ought not to be entertained under S. 482, Cr.P.C.


3. As regards the first point that no notice was given to the petitioners and as such the proceeding is invalid, it has been held by the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose 1963 AIR(SC) 1430, 1963 (69) CRLJ 397, 1964 (1) SCJ 202, 1964 (1) SCR 639 : 1963 AIR(SC) 1430, 1963 (69) CRLJ 397, 1964 (1) SCJ 202, 1964 (1) SCR 639:


"Held, that an accused person does not come into the picture at all till process is issued. Even though he may be allowed to be represented by counsel, he has no right to take part in the proceedings nor has the Magistrate jurisdiction to permit him to do so. The Magistrate cannot put questions at the instance of a person named as accused but against whom no process has been issued nor can he examine any witnesses at the instance of that person. The enquiry made by the Magistrate was therefore vitiated." *


That was also a case where a similar contention was raised that on a revision filed by the complainant no opportunity was given to the accused and that was repelled by the Supreme Court. The above view has subsequently been followed consistently by this court under section (sic) recent judgment in Somu alias Somasundaram v. State, 1985 Mad LW (Cri) 25 : 1985 CrLJ 1309). In view of the ratio laid down in the above quoted decisions, the accused cannot be heard to say that in view of the fact that no notice was given in the revision proceedings, the order passed by the Sessions Judge is vitiated. Hence, I see no force in the contention.


4. As regards the maintainability of this petition, it is to be noted that it has been held in Madhu Limaye v. State of Maharashtra, 1978 AIR(SC) 47, 1978 CAR 1, 1978 (84) CRLJ 165, 1977 (4) SCC 551, 1978 (1) SCR 749, 1977 UJ 733, 1977 CRLR 494, 1978 SCC(Cr) 10, 1979 AIR(AP) 146 : 1978 AIR(SC) 47, 1978 CAR 1, 1978 (84) CRLJ 165, 1977 (4) SCC 551, 1978 (1) SCR 749, 1977 UJ 733, 1977 CRLR 494, 1978 SCC(Cr) 10, 1979 AIR(AP) 146:


"But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in S. 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly."


It is also observed -


" The label of the petition filed by aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers." *


The learned counsel for the respondent relied on the following passage in the said judgment -


"Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power."


Their Lordships further proceeded -


" But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary then nothing contained in S. 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction." *


It is to be noted that in the instant case, the accused have no locus standi even before the lower court and hence, it cannot be said that the remedy is only to file revision. In the circumstances, certainly the petition for quashing impugned order under S. 482, Cr.P.C. is maintainable. The only question to be found out is whether there is any abuse of process of court or miscarriage of justice, so as to warrant the exercise of the inherent power by the High Court. On going through the order passed by the Sessions Judge, I find that the reasons given by the Judicial Second Class Magistrate, Sankagiri, for dismissing the complaint under S. 203, Cr.P.C. are not tenable and further the approach is improper. At the stage of issuing process against the accused, he has to see whether the allegations made in the complaint or the statements of witnesses in support of the same taken at its face value make out a case against the accused and that they disclose the essential ingredient of the offence which is alleged against the accused and whether the complaint suffers from any fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority. He must exercise discretion judiciously and not capriciously and arbitrarily. In a nut shell, it is the duty of the Court to find out whether there is sufficient ground to proceed against the accused. Though P.Ws. 1 to 8 have consistently stated that accused 1 to 18 came with deadly weapons and damaged the house and committed dacoity, he has not considered the same in a proper perspective, but only proceeded as if he is trying the entire case on merits after recording evidence and dismissed the complaint for the non-production of the will executed in favour of the complainant and the rent receipts to prove the tenancy and also the suit records to show the state of the case. On the other hand, it is the case of the complainant that he filed the suit against petitioners 1 to 6 for declaration of his title to the suit property and for permanent injunction on the ground that out of the seven houses he was in possession of the two houses and leased out five houses to tenants and that the accused were making attempts to drive him out. The said suit is numbered as O.S. 706 of 1982. Additional Sub-Court, Salem. Details of the case have been set out in the plaint. It is only to get over the same, the first petitioner fabricated records as if the houses which are in the possession of the complainant were let out to the 8th petitioner and obtained a collusive decree and on the strength of the same, they came to forcibly and unlawfully evict the complainant and the inmates of the houses and in spite of their protest, demolished the house intimidated them, committed dacoity and caused loss to the extent of Rs. 25, 000/-. It cannot be said that the finding of the Additional Sessions Judge that the order of dismissal of the lower court is liable to be set aside is wrong, as he has failed to follow the ratio laid down in the decision of the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose, 1963 AIR(SC) 1430, 1963 (69) CRLJ 397, 1964 (1) SCJ 202, 1964 (1) SCR 639 : 1963 AIR(SC) 1430, 1963 (69) CRLJ 397, 1964 (1) SCJ 202, 1964 (1) SCR 639 : 1963 AIR(SC) 1430, 1963 (69) CRLJ 397, 1964 (1) SCJ 202, 1964 (1) SCR 639).


5. Next it was contended by the learned counsel for the petitioners that though the learned Magistrate has not passed the proper order, it is not open to the Sessions Judge to direct further enquiry by some other Magistrate and thereby sit over the judgment of another Magistrate. I do not find any merit in the said contention. Section 398, Cr.P.C. reads as follows -


"On examining any record under S. 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further enquiry into any complaint which has been dismissed under section 203 or sub-section (4) of S. 204, or into the case of any person accused of an offence who has been discharged." *


Learned counsel for the petitioners drew my attention to the decision in Abubakker v. Belal Sheikh, 1968 CrLJ 1257 (Pat). On going through the said decision, I find that it does not help the case of the petitioners. That was also a case where the superior court ordered to hold further enquiry on the dismissal of the complaint under S. 203, Cr.P.C. It was held -


"The order by a superior court to hold further enquiry into a complaint which has been dismissed under S. 203 has a technical meaning. It simply means reconsideration, but what more step has to be taken thereafter depends on the circumstances of each case. If further enquiry has been directed into a complaint which was dismissed soon after the examination of the complainant on solemn affirmation, the order for further enquiry can be carried out by examining the witnesses cited by the complainant. In a case where the complaint has been dismissed after a full enquiry, such order can only be complied with by issuing processes against the persons complained against."It is further held in the said decision -


" Merely because a prima facie case was

supposed to have been made out to enable the Sub-Divisional Magistrate to take cognisance of the case, it would not necessarily follow that prima facie case has been made out for committing the accused person to the Court of Session for trial. The duty of the enquiring Magistrate under S. 207 is not the same as the duty of Sub-Divisional Magistrate to take cognisance upon a complaint. The Magistrate holding enquiry under S. 207 cannot mechanically commit an accused to the Court of Session for trial." * In the instant case also, the case is triable by the Sessions Judge and the Magistrate to whom the case is sent has to satisfy himself whether it was a case for committal and then take cognizance and commit the accused for trial. Hence I do not find any illegality in the order passed by the learned Sessions Judge directing reconsideration and further enquiry into the complaint on the witnesses examined on the side of the respondent-complainant and disposal according to law. For all these reasons, I am of the view that the petitioners have not made out any case for setting aside the order passed by the Sessions Judge by invoking the inherent power under section 482, Cr.P.C. as there is nothing to hold that there abuse of process of court or miscarriage of justice. In the result, the petition fails and stands dismissed.