JUDGMENT B. D. Singh, J. This application by 16 persons under sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is directed against order, dated 30th September, 1970 passed by the Second Additional Sessions Judge directing further enquiry on a complaint petition filed by opposite party which was dismissed by the Sub-divisional Magistrate by his order dated 20th January, 1970. 2. The opposite party instituted a case against the petitioners under sections 147, 148, 323, 448, 427, 379, 452 and 504 of the Indian Penal Code on 24th of September, 1969 before the Sub-divisional Magistrate regarding occurrence which had taken place on 2nd of September, 1969 at 9.30 A.M. On the basis of the complaint the Third Officer namely, C. N. Tewary examined the complaint on solemn affirmation on 8th of October, 1969 and also called for the report on the complaint from the B.D.O. and D.S.P.A true copy of the order, dated 8th of October, 1969 is annexed as annexure ‘A’ to the counter affidavit filed in this Court by the opposite party. The B.D.O., after making enquiry submitted his report on 1st of January, 1970 to the S.D.O. A true copy of the report has been annexed as Annexure 1' to the application filed by the petitioners in this Court. In the said report the S. D. O. interalia, reported that he tried to ascertain the truth of the complaint petition. But he was satisfied that the complaint was fabricated and false. Thus, according to him no prima facie case was made out. When this report was placed before Shri B. P. Singh, Sub-divisional Magistrate, it appears that a protest petition was also filed by the complainant (vide order dated 19-1-70). The learned Sub-divisional Magistrate ordered it to be put up for orders on 20th of January, 1970, when he after considering the report as well as the complaint and the statement of the complainant on solemn affirmation as also the record in G.R. police case no. 1 (9)69 under sections 147, 323, 341, 376 and 511 of the Indian Penal Code, which was instituted against the complainant and others at 12.00 hours on 2nd of September, 1969, dismissed the complaint under section 203 of the Code. 1 (9)69 under sections 147, 323, 341, 376 and 511 of the Indian Penal Code, which was instituted against the complainant and others at 12.00 hours on 2nd of September, 1969, dismissed the complaint under section 203 of the Code. Aggrieved by the said order the complainant filed application for further enquiry before the Sessions Judge under section 436 of the Code, who by the impugned order directed further enquiry. 3. Learned Counsel appearing on behalf of the petitioners has assailed the order of the Sessions Judge ordering further enquiry. Learned Counsel urged that no where in the impugned order the learned Sessions Judge has found a prima-facie case on the basis of the complaint. According to him it was incumbent upon the Sessions Judge to give a finding regarding prima-facie case in order to substantiate his contention. He relied on a judgment of this Court in Ram Ekbal Singh and others Vs. Ramkhelawan Mahto where it was held that where no prima-facie case is made out by the complainant the order, directing further enquiry is illegal. He has placed before me the impugned order in order to show that no where the learned Sessions Judge has given such a finding. On perusal of the order, in my opinion, though he has not given such a finding in expressed words, he has differed from the finding of the learned Sub-divisional Magistrate, which will amount to giving such a finding. 4. The learned Counsel then referred to the order of the Sub-divisional Magistrate, dated 20th January, 1970 in order to show that the Sub-divisional Magistrate, after due consideration of the case of the complaint from all aspects and after perusing the records of the case has passed the order under section 203 of the Code, which reads as follows :- "203. The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath if any of the complainant and the witnesses and the result of the investigation or inquiry if any under section 202, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing." He pointed out that there was a police case no. In such case he shall briefly record his reasons for so doing." He pointed out that there was a police case no. 1 (9) 69 under section 147, 323, 341, 376 and 511 of the Indian Penal Code against the complainant and others for an occurrence which took place on 2nd of September, 1969 at 12.00 hours. According to the learned Counsel, as well as the learned Sub-divisional Magistrate the case of the complainant was false and the complainant has filed the complaint only as a counterblast to the police case, which was against him. Learned Counsel submitted that if there was no merit in the complaint petition it would be unnecessary harassment to the petitioners if order of the further enquiry is up held. 5. Learned Counsel appearing on behalf of the opposite party, however, submitted that the order of dismissal passed by the learned Sub-divisional Magistrate was contrary to the provisions contained in section 203 of the Code. He urged that no opportunity was given to the complainant by the sub-divisional Magistrate to establish his case by examining witnesses as contemplated under section 203 of the Code. In my opinion, there is no merit in this submission of the learned Counsel for the opposite party. The provisions contained in section 203 of the Code have to be read with the provisions contained in section 200 of the Code. It is not incumbent upon the Magistrate while passing order under section 203 of the Code to examine witnesses on behalf of the complainant. He would have considered their evidence only if the complainant would have produced those witnesses before the Magistrate at the time of taking cognizance under section 200 of the Code. Reference may be made to a judgment of the Mysore High Court in Dr. V. Naidu vs. K. Janardhana Holla where K. S. Hegde, J. (who later became Judge of the Supreme Court) while dealing with the provisions contained in sections 200 and 203 of the Code observed that it was not correct to say that under section 203 Criminal P.C., as amended in 1955, no Magistrate can dismiss a complaint unless he has examined the complainant and all the witnesses cited by him. The witnesses mentioned in section 203 refer to the witnesses mentioned in Section 200 Cr. The witnesses mentioned in section 203 refer to the witnesses mentioned in Section 200 Cr. P. C. If that is not the interpretation then all the witnesses cited by a complainant in his complaint should be examined by the Magistrate before he makes up his mind to dismiss a private complaint. This would be placing the Magistrate in an intolerable position. 6. Learned Counsel for the opposite party further submitted that the learned Sub-divisional Magistrate had erred in taking into consideration the police case, which was instituted against the complainant. According to him that was an extraneous matter which ought not to have been taken by the Sub-divisional Magistrate and for that reason also the order of dismissal was bad. In order to find support to his contention he relied on a judgment in Chandra Deo Singh versus Prokash Chandra Bose where while dealing with section 203 of the Code it was held that since the object of an enquiry under section 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under section 205 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under section 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. The learned Counsel has emphasised on the latter part of the observation of the Supreme Court. In my opinion this submission of the learned Counsel for the Opposite party is also not acceptable. Reference may be made to the complaint itself, filed by the Opposite party wherein he has referred to the police case which was instituted, against him. He has also mentioned therein that he was arrested on that basis, and he was sent to jail. Only after he got a bail, he had lodged the complaint. The complainant had made those statements in order to explain the delay in lodging the complaint. Therefore, in my opinion, that was not extraneous matter and the learned Sub-divisional Magistrate has rightly dealt with it in his order. 7. Learned Counsel for the opposite party thereafter took another point as to why a further enquiry should be directed in the instant case. Therefore, in my opinion, that was not extraneous matter and the learned Sub-divisional Magistrate has rightly dealt with it in his order. 7. Learned Counsel for the opposite party thereafter took another point as to why a further enquiry should be directed in the instant case. He drew my attention to the report of the enquiring Magistrate, a copy of which has been annexed as annexure 'I' to the petition of the petitioner already referred to. He placed before me the entire report. By perusal of the report, it is not to be found that whether he had given opportunity to the complainant to substantiate his case. According to the learned Counsel the enquiring Magistrate ought to have given opportunity to the complainant to examine the four witnesses named in his complaint petition, in order to, substantiate his case. But no such opportunity was given to him. It was bounded duty on him to give such an opportunity. Learned Counsel in order to support his contention relied on a judgment in Vedantha versus Marigowda where it was observed that despite the duty cast upon the Court to protect the accused, ordinarily it will not be justified in throwing out a complaint without giving an opportunity to the complainant to substantiate his allegations. In that case also Balakrishnaiya, J dealt with the provisions contained in section 202 of the Code with regard to the meaning of the enquiry contemplated in the said section. He also relied on a judgment of the Allahabad High Court in Badri Lal versus Bankey lal and another where it was held that where an enquiry is ordered or is contemplated under section 202, and the complainant states in his complaint that he, has witnesses to prove his case he should have been given an opportunity of proving his case before the complaint was dismissed on the basis of such enquiry. If the enquiry ordered or contemplated under section 202 is insufficient, the order of dismissal of the complaint could not be supported and a further enquiry must be directed. 8. If the enquiry ordered or contemplated under section 202 is insufficient, the order of dismissal of the complaint could not be supported and a further enquiry must be directed. 8. On the other hand, learned Counsel appearing an behalf of the petitioners placed before me clause (2A) of section 202 of the Code which reads as follows:- "Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses an oath." On the basis of the said provisions learned Counsel for the petitioners submitted that it was not incumbent upon the inquiring magistrate to examine witnesses of the complainant. It was within his discretion, and when he exercised his discretion this Court would not ordinarily interfere in revision. The said provision has been amended by section 55 of Act 18 of 1923. Obviously, the said provisions would have been considered in the two judgments referred to above (A.I.R. 1951 Mysore 127 and A.I.R. 1956 Allahabad 304) Therefore, in my opinion, the enquiring magistrate ought to have given opportunity an the facts, and circumstances of the instant case to the complainant to examine his witnesses before submitting his report. Learned Counsel for the petitioners, however, drew my attention to the two petitions which were filed by the opposite party before the Sub-divisional Magistrate. They were dated 9th October, 1969 and 19th January, 1970. Learned Counsel for the petitioners urged that the opposite party himself wanted that the enquiry should be expedited and no where opposite party filed petition that he wanted to examine witnesses, nor before the Sessions Judge, he made such a complaint regarding no opportunity having been given to the opposite party to examine witnesses. Therefore, learned Counsel for the petitioners submitted that at this stage the opposite party should not be allowed to take out a fresh point. 9. In my opinion in the two applications dated 9.10.69 and 19.1.70 opposite party did not say that he did not want to examine the witnesses named in the complaint. In the application, dated 8.10.1969, the opposite party had apprehension that the D.S.P. and the B.D.O, were prejudicial to the complainant and no useful purpose would be served by waiting for their report and he prayed that the summons might be issued against the petitioners namely, the accused. In the application, dated 8.10.1969, the opposite party had apprehension that the D.S.P. and the B.D.O, were prejudicial to the complainant and no useful purpose would be served by waiting for their report and he prayed that the summons might be issued against the petitioners namely, the accused. In the next petition, dated 19th January, 70 the opposite party reiterated that he had no faith in those two officers namely, the B. D.O. and the D.S.P., to whom the enquiry was entrusted and prayed for taking cognizance against the accused "persons. 10. It is true that the opposite party had not taken the point about non-examination of the witnesses by the enquiring officer before the Sessions Judge. But in paragraph 4 of the counter affidavit which the opposite party has filed in this Court this point has been raised. Ordinarily, I would not have allowed him to raise the point at this stage, but since it has turned out to be a question of law, I allowed the learned Counsel of the Opposite party to address me on this point. 11. Mr. Sankat Haran Singh, learned Counsel for the petitioners further placed before me some decisions in support of his contention that it was not incumbent upon the enquiring officer to give opportunity to the complainant to examine his witnesses. He referred to a judgment of this Court in Parmanand Brahmachari versus Emperor where Macpherson, J had the occasion to deal with the provisions contained in section 202 of the Code. His Lordship observed that an enquiry or an investigation under section 202 is designed to afford the Magistrate, an opportunity of either confirming or removing such hesitation as he may feel in respect of issuing process against the accused. The nature of the enquiry varies with the circumstances of each case and it is certainly not contemplated that it should always be exhaustive. Frequently all that is required is the elucidation of some minor point or the summary determination of the sufficiency of the available evidence, but least of all is the enquiry a preliminary trial of the accused at which he is entitled to adduce his evidence before proceedings and the width and the depth of the enquiry is entirely in the discretion of the Magistrate (so long at least as he confines himself to the simple question of issue of process or dismissal of the complaint). His Lordship further held that the provision is enabling and not obligatory. As soon as he has satisfied himself that process should issue its object is fulfilled and it is certainly not incumbent upon him or ordinarily expedient that he should practically enter upon a trial of the case. 12. In my opinion the above observation of his lordship does not lend support to the learned counsel in the facts and circumstances of the instant case. In the present case the question is whether the enquiring Magistrate i.e. the B.D.O. could have submitted the report even without making any attempt to contact the complainant or giving him opportunity to examine the four witnesses named in the complaint petition itself. It may be noticed that his lordship in the above case also observed that the nature of the enquiry varies with the circumstances of each case. No where his Lordship has observed that the enquiring Magistrate might not examine the witnesses named in the complaint petition. 13. Reliance was also placed by Mr. Singh .on a judgment in Manilal Haque and others vs. Ganga Prasad Sarkar, where it was observed that enquiry within the meaning of Section 202 is not limited to and does not necessarily mean an enquiry and examining witnesses or by holding investigation into the case in any particular form. It was open to him to enquire into the case in any manner that he could have adopted if the accused had been in attendance. Going to the scene of occurrence and making a local enquiry was within his competence. In this case also in my opinion there was different consideration. There his lordship was considering as to whether the enquiring Magistrate could hold a local inspection. In that connection the observation made was that enquiry was not confined only to the examining of witnesses but it also included local inspection or other manner of enquiry which might be relevant in a particular case. 14. The last decision at this point which Mr. Singh has brought to my notice is the judgment in C. Me Lennan and another vs. the State. 14. The last decision at this point which Mr. Singh has brought to my notice is the judgment in C. Me Lennan and another vs. the State. In that case T. P. Mukherji, J. observed that in an enquiry under section 202 there is no specific provision empowering the court to issue process on the prayer of the complainant and the court also has no materials before it at that stage to satisfy itself that for the interest of justice processes need issue on particular persons. An enquiry under section 202 can be held not only by a magistrate but also by a police officer or any other suitable person and the same principle in the matter of an enquiry should be followed where the inquiry is held by a magistrate or by a police officer or by any other person. The only difference in the case of inquiries by the three different agencies is also provided for in section 202 itself. Excepting provisions in Sub-sections (2) and (2A) the manner of the inquiry before all the three agencies under the Code, should be uniform. As there is no question of processes for appearance of witnesses by a police officer or by the other agency there, is no reason why the magistrate all an inquiring magistrate under the section should be deemed to be impliedly authorised in, that behalf. It was held therein that under section 202 of the Code the Magistrate has no power to issue process for the appearance of the witnesses. The above observation also do not lend support to the contention advanced by Mr. Singh. His Lordship was considering a case as to whether the enquiring Magistrate on the application of the complainant could issue process to the witnesses named by the complainant to appear before the Magistrate to support the case of the complainant. To that it was held that the Magistrate had no such power. 15. After due consideration from the various aspects in my opinion, the enquiring magistrate in the present case namely the B.D.O. ought to have issued notice to the complainant giving opportunity to examine the four witnesses named in the complaint. Since the order of the S.D.O. dated 20.1.70 is based upon the enquiry report of the B.D.O., the order of dismissal cannot be sustained. Since the order of the S.D.O. dated 20.1.70 is based upon the enquiry report of the B.D.O., the order of dismissal cannot be sustained. In that view of the matter I uphold the impugned order of the Sessions Judge, who directed for further enquiry, with the modification noted below. 16. Let the records of the case be sent down immediately to the present Sub-divisional Magistrate, who will send the complaint for enquiry to a Magistrate and after the report is obtained from the enquiring Magistrate, he will pass orders in accordance with law. Application dismissed.