Judgment 1. This application in revision is directed against the order of the Sessions Judge, Bhagalpur, dated the 15th December 1964 in Criminal Appeal No. 150 of 1964, whereby he has directed that a complaint under section 211 of the Indian Penal Code be filed for the prosecution of the petitioner. 2. The facts giving rise to this revision are as follows : The petitioner filed a complaint on the 23rd February 1963 before the Sub-divisional Magistrate, Banka, alleging that, on the 22nd February 1963, while the complainant was planting sugarcane in his Nakdi field and Sudin Hazra and Basant Hazra were ploughing the said field, the accused persons came in a mob, variously armed, and forcibly started unyoking the bullocks from the ploughs. The petitioners protested, whereupon Adya Singh (opposite party No. 1) ordered assault and one of the members of the mob, namely, Dhanesar Singh, assaulted Sudin Hazra, with a Farsa. The complainants party then ran away to save their life and went to the Angan of Basant Hazra. The accused persons along with many others entered the angan of Basant Hazra and set fire to the house. The members of the opposite party also took away the ploughs and the buffaloes from the field of the petitioner. The motive for the assault was put pressure on the complainant to give up his claim over his Khatiam Sikmi land. 3. The learned Sub-Divisional Magistrate examined the complainant (petitioner) on solemn affirmation and referred the complaint to Shri J. Pathak, Magistrate, first class, Banka, for enquiry and report. Shri J. Pathak submitted his report on the 11th April 1963. It may be stated that Sudin Hazra was examined by the doctor at Banka hospital on the 22nd February 1963 at 5 p.m. The petitioner had to file his complaint before the Sub-Divisional Magistrate because the police was in collusion with the accused persons. It has been argued that the enquiry conducted by Shri J. Pathak was not in accordance with law. He, no doubt, inspected the place of occurrence and also made enquiries from the persons in the locality; but, in addition to this, he examined two of the prosecution witnesses and allowed the defence to cross-examine them. A reference to the report and the evidence recorded by him makes it clear that the enquiry conducted by Shri J. Pathak was more or less in the nature of trial. A reference to the report and the evidence recorded by him makes it clear that the enquiry conducted by Shri J. Pathak was more or less in the nature of trial. The concluding portion of the enquiry report was as follows : "My finding is that it would not be proper to place reliance on evidence of underlings in such cases. Land dispute is at the root and the primary cause of enmity between the complainant and the accused and in the absence of prima facie evidence which could be safely relied upon, a false case appears to have been filed under different sections of I. P. C. with a view to cause harassment to the accused persons." To this enquiry report, a protest petition was filed by the complainant on the 29th April, 1963, wherein he put forward a number of grievances. His main grievance was that the enquiring officer had gone beyond the powers conferred upon him and had held a full dress trial of the case and given a judgment of acquittal which he was not empowered to do. Another grievance of the complainant was that, in spite of the fact that the materials before the enquiring officer indicated a prima facie case against the accused persons, he has submitted a report against the petitioner. It was also stated therein that the enquiring Officer, although he visited the place of occurrence, did not prepare any memorandum of local inspection. The petition of complaint, the enquiry report submitted by Shri Pathak and the protest petition to the said report were put up before the learned Sub-divisional Magistrate on the 14th May 1963 and he, by his order of the same date, directed that the complainant should be asked to show cause as to why he should not be prosecuted under section 211 of the Indian Penal Code. The petitioner moved the Sessions Judge in Criminal Revision No. 38 of 1963 against the order of the Subdivisional Magistrate dated the 14th May 1963 for further enquiry. This revision having been dismissed, the petitioner came up in revision to this Court which was dismissed at the time of admission by Sahai, J. with the following observation: "It seems to me that the complaint filed by the petitioner has been rightly dismissed. This revision having been dismissed, the petitioner came up in revision to this Court which was dismissed at the time of admission by Sahai, J. with the following observation: "It seems to me that the complaint filed by the petitioner has been rightly dismissed. If ultimately the Subdivisional Magistrate files a complaint against the petitioner for an offence under section 211 of the Penal Code, it will be open to him to go in appeal. The Subdivisional Magistrate will however keep in view the facts that the petitioner has not been given an opportunity to prove his case, because his complaint has been dismissed and no trial has been held." 4. In answer to the show-cause notice, issued in pursuance of the order of the Sub-Divisional Magistrate dated the 14th May 1963, the petitioner filed a show-cause petition on the 12th December 1963, which was heard by Shri J. Ram, Subdivisional Magistrate in charge Banka, on the 28th March 1964. The said Magistrate held: "The complainant in his protest petition stated that he has got rent receipts uptodate. Hence, it is very difficult for me to presume as to which party was in actual physical possession of the land. Basant Hazras house has been burnt and enough sign of burning was found by the learned enquiring officer which has also been supported by the witnesses. It has been argued on behalf of the complainant that the enquiring officer visited the spot at 8 p.m. in the night. Regarding Falsa blow on the person of Sudin Hazra, a medical report had been submitted by a registered doctor on 22-2-63 and the doctor said that the injury might have been caused by sharp cutting instruments. The above Sudin Hazra was produced before the enquiring officer on 8-3-63, after a lapse of 15 days from the report of medical officer. The injuries may have healed up by that time and only scratch may be available to the enquiring officer. Under the above circumstances, I believe the story of unyoking the bullocks and chasing the complainant also." The learned Magistrate accepted the show-cause filed by the complainant and held that the complainant had rightly filed his complaint against the accused persons for the alleged occurrence. 5. Under the above circumstances, I believe the story of unyoking the bullocks and chasing the complainant also." The learned Magistrate accepted the show-cause filed by the complainant and held that the complainant had rightly filed his complaint against the accused persons for the alleged occurrence. 5. The members of the opposite party were not satisfied with the order of the learned Magistrate dated the 28th March 1963 and went up in appeal before the Sessions Judge, Bhagalpur, under section 476B of the Code of Criminal Procedure. The learned Sessions Judge, by his judgment and order dated the 15th December 1964, has directed that a complaint should be filed against the petitioner under section 211 of the Indian Penal Code. 6. Mr. S. B. Sanyal, appearing for the petitioner, has submitted three points: (1) that the enquiry report should be brushed aside because the same is not in consonance with law; (2) that the order of the learned Sessions Judge is based on errors of record and (3) that the learned Sessions Judge has erred in law in observing that Shri J. Ram "acted without jurisdiction in his observation that the complainant had rightly filed his complaint against the accused persons." 7. So far as the enquiry report is concerned, a reference to the report and the evidence taken in the enquiry makes it perfectly clear, as already stated above, that the enquiring officer has written more or less a judgment of acquittal which he could not do. He also allowed the accused to cross-examine the witnesses examined on the side of the prosecution. Because of these defects, the enquiry report cannot be acted upon. In this connection, he has drawn my attention to the decision of the Supreme Court in Chandra Deo Singh v. Prokash Chandra, AIR 1963 S C 1430, wherein their Lordships observed- ".. .. .. it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can be examine any witnesses at the instance of such a person." Learned counsel has also referred to a decision of this Court reported in AIR 1961 Pat 120 , Markhandey Rai v. Sheo Kumar Thakur wherein it has been stated as follows: "On a consideration of the authorities referred to above, the law on the subject, in my opinion, is that, during the course of an inquiry under section 202, Cr. P. C., the inquiring officer has to satisfy himself on the evidence adduced by the prosecution, if a prima facie case has been made out so as to put the proposed accused on trial, and it is only at the stage of the trial that the truth or falsity of the allegations made in the complaint petition has to be finally determined. The accused in such an inquiry cannot be compelled to appear, but there will be no illegality if he, of his own accord, appears before the inquiring officer and assists him in the matter of inquiry; but he cannot be permitted to cross-examine the witnesses produced by the complainant, or to produce his own evidence in defence. Where the inquiring officer has allowed the accused to cross-examine the witnesses of the complainant, or to adduce evidence in defence, or has taken into consideration some informations received by him either on confidential inquiry or from some other source, the procedure, though not illegal in the sense that it vitiates the ultimate order passed by the Magistrate, is unjustified, improper and condemnable. It is, therefore, clear that though on the facts of a particular case the High Court may not interfere with the order of dismissal of the complaint on the report of the inquiring officer, who has adopted the above condemned procedure, yet, if the inquiry has taken the shape of a regular trial and the report of the inquiring officer shows that he has taken upon himself the function of a trying Magistrate and has written a judgment of acquittal, the High Court will be justified in interfering with such order of dismissal." 8. So far as the errors of record are concerned, I find (a) that, in paragraph 5 of his judgment, the learned Judge has said that the injured was not examined by any registered medical practitioner, although Sudin Hazra was examined by the lady doctor, Banka Civil Hospital, at 5 p.m. On the 22nd February 1963, the very day of the occurrence. The certificate granted by her is appended to the present application in revision filed in this Court as annexure A. (b) The learned Judge has observed that there was no application made by the petitioner for further enquiry after the dismissal of the complaint under section 203 of the Code of Criminal Procedure, although the complainant filed a revision to the Sessions Judge and ultimately, came up in revision to this Court, as already stated. (c) The learned Sessions Judge has observed in his judgment that it is curious that, in spite of the serious allegations made in the petition of complaint, the complainant did not choose to go to the police station to lodge information; but, in the petition of complaint, it was specifically mentioned that, as the police was taking sides with the accused persons, he had to file the complaint in court. 9. The third point raised by Mr. Sanyal is also well founded, and the learned Sessions Judge, while deciding the appeal filed under section 476-B of the Code of Criminal Procedure, could not question the jurisdiction of Shri J. Ram, although he could correct mistakes, if any, committed by him. Shri J. Ram was dealing with the show-cause petition filed by the petitioner and he was in no way bound by the enquiry report submitted by Shri J. Pathak and the observations made therein. 10. Shri J. Ram was dealing with the show-cause petition filed by the petitioner and he was in no way bound by the enquiry report submitted by Shri J. Pathak and the observations made therein. 10. For the reasons given and following the decisions quoted above, I allow this application and set aside the order passed by the learned Sessions Judge directing that a complaint be filed under section 211 of the Indian Penal Code against the petitioner.