Judgment 1. This application has been filed by the complainant under S. 439 of the Criminal P. C. for a further enquiry into the complaint that had been made by the petitioner before the Sub-divisional Magistrate. 2. The petitioner filed his complaint before the Sub-divisional Magistrate concerned on 3-10-63. The learned Sub-divisional Magistrate made the following order : Perused the complaint. Sri I. N. Thakur to make an enquiry and report by ... ." Sri I. N. Thakur was obviously a Magistrate and the order of enquiry was obviously one under S.202 of the Criminal P. C. 3. The Enquiring Magistrate, Sri I. N. Thakur, submitted his report which was put up before the learned Subdivisional Magistrate on 12-11-64 when he passed the following order : "Complainant files hajri. Perused enquiry report. I agree with the E. O. (Enquiring Officer) that no prima facie case has been established and accordingly dismiss the complaint under S. 203, Criminal P. 0." 4. The complaint was that on the 2nd October, 1963, the petitioner-complainant along with one Balister Singh was going to buy a buffalo and was carrying for this purpose a sum of Rs. 355/-. On his way, by the side of the house of some of the opposite parties, he was called by opposite party Bambir Singh and then he was surrounded and assaulted by all the members of the opposite party. It was also alleged that opposite party Ramchander Singh removed from his person the sum of Rs. 355/- which he was carrying. 5. At the stage of the enquiry, the petitioner examined some four witnesses in support of his case and some suggestions also appear to have been put to those witnesses. The learned Enquiring Magistrate after considering that evidence found the case to be untrue and accordingly recommended that the complaint be dismissed. 6. Mr. Safdar Imam, learned counsel appearing for the petitioner, has contended that the learned Sub-divisional Magistrate gave no reason, which was obligatory on him to do so, when he referred the matter under S. 202 of the Code for enquiry as also, when he dismissed the complaint under S. 203 of the Code. He would, therefore, contend that the order is bad in law. He would, therefore, contend that the order is bad in law. In support of his contention, he relied upon the cases of Baidya Nath Singh V/s. Muspiatt, (1887) ilr 14 Cal 141 and Balai Lal Mukherjee V/s. Pasupati Chatterjee, 21 Cal W N 127 : (air 1917 Cal 462). Mr. N. P. Agarwala, learned counsel appearing for the opposite party has, however, relied on a single Judge decision of the Madras High Court in the case of In re Venkatasubba Pillai, air 1933 mad 879 to say that failure to give reasons while dismissing an enquiry under S. 203, Criminal P. C. is not an illegality but an irregularity. He has also relied on two decisions of this Court in the cases of Ram Saran Singh V/s. Mohammad Jan Khan, air 1936 Pat 34 and Harnandan Das V/s. Atul Kumar Prasad, air 1926 pat 57. But, I am afraid, both the decisions would rather support the contention raised by Mr. Imam. In the first case it was held that it is certainly not a correct procedure to defer the issue of process and order an enquiry without reording reasons. In the second case, wherein the learned Sub-divisional Magistrate had dismissed the complaint under S. 203 of the Code on merely looking into the enquiry report, it was held : "Under S. 208, Criminal P. C., it is incumbent upon the Magistrate to record briefly his reasons for dismissing the complaint." In that case the enquiry report was not correctly read by the learned Sub-divisional Magistrate. This question, however, came up for consideration by the Supreme Court in the Case of Chandradeo Singh v Prokash Chandra Bose, air 1963 SC 1430 wherein in paragraph 13 of the judgment it has been held that an error to give reasons for dismissing a complaint under S. 203, Criminal P. C., on merely perusing the enquiry report, goes to the root of the matter. To quote the exact words, the observations run thus ; "It is possible to say that giving of reasons is a pre-requisite for making an order of dismissal of a complaint and absence of the reasons would make the order a nullity." Mr. Agarwala on facts submitted that the learned Sub-divisional Magistrate, while dismissing the complaint under S. 203, Criminal P. C. has said that no prima facie case was made out. Agarwala on facts submitted that the learned Sub-divisional Magistrate, while dismissing the complaint under S. 203, Criminal P. C. has said that no prima facie case was made out. But, he has said this on mere perusal of the enquiry report. He has not given reasons of his own. 7. I think that the procedure adopted by the learned Magistrate, by not giving any reason while referring the matter under S. 202 and while dismissing the complaint, on receipt of the enquiry report, under S. 203, Criminal P. C. was illegal as the Supreme Court in the above case pointed out that it goes to the root of the whole matter. 8. Mr. Imam has further taken up a new point, although it was not taken in the ground of the petition, that the enquiring Magistrate had allowed the accused persons to be represented by a lawyer who bad cross-examined the witnesses examined on behalf of the complainant. To support this contention of his, he has drawn my attention to a petition filed on behalf of the complainant before the enquiring Magistrate on 31-10-63. In this application there was an allegation that Sri Bankey Bihari Frasad was the lawyer who had cross-examined the witnesses on behalf of the accused. He has also drawn my attention to another petition filed on 29-6.64 on behalf of the petitioner before the Sub-divisional Magistrate and, in that application also, a similar allegation was made that the accused were allowed to be cross-examined by the lawyer. The enquiring Magistrate does not appear to have passed any order on this application whether the allegations made are true or not. The learned Sub-divisional Magistrate did not say anything about the other petition filed before him. This point was, however, urged before the learned Additional Sessions Judge before whom also an application for revision had been filed against the order dismissing the complaint. The learned Sessions Judge was not satisfied that the accused had been allowed to be examined by a lawyer and, as against this finding, no ground was taken, in the application. I would not, therefore, entertain this ground. 9. For the reasons indicated earlier, I would allow this application and remand this case for further enquiry. I would, however, make it clear that the members of the opposite party need not be put on trial all at once. I would not, therefore, entertain this ground. 9. For the reasons indicated earlier, I would allow this application and remand this case for further enquiry. I would, however, make it clear that the members of the opposite party need not be put on trial all at once. There will be another enquiry by another Magistrate who should only find out whether a prima facie case has been made out on the basis of the evidence adduced on behalf of the complainant and whether the evidence is reliable or not with regard to the merits of the case. The accused persons should not be allowed to be represented by a lawyer.