JUDGMENT C. N. Tiwary, J. This revision application is directed against the order, dated 9-9-72 taking cognizance of offences under sections 144 and 147 of the Indian Penal Code against the accused petitioners and transferring the case to Sri G. S. Thakur, Magistrate 1st class for disposal. 2. All the four accused persons are employees of the Forest Department of the State Government. Petitioner no. 1 Kashinath Singh is Forest Range Officer, petitioner no. 2 Madho Singh is Forest Beat Officer and petitioners no. 3 to 5 (Bachu Lal Sharma, Niranjan Singh and Chandreshwar Singh) are Forest Guards. At the time of the alleged- occurrence all of them were posted at Mallehpur Forest Range. The complainant opposite party Mahendra Singh had some cultivable land in village Gurmaha. Tola Babudara bearing plot nos. 12, 15, 17, 18, etc. There were some Sal trees in some of these plots. Complainant opposite party Mahendra Singh had obtained orders of the Forest Department to cut down those trees. He was seen cutting down Asan and Sal trees from reserved forest area bearing survey plot no. 15 of village Ramankabad on the plea that he was cutting trees standing on his jote land. On 7. 7. 1971 he along with his men cut down 17 Sal and 8 Asan trees; on 18. 7. 71 he and his men cut away I Sal tree and ploughed 0.40 acres of reserved forest land and on 19. 7. 71 he and his men felled 173 trees in reserve forest area. On 18. 7. 71, he and his men removed boundary pillars of reserved area. On each of the aforesaid occasions the forest guards concerned made report to the Beat officer. The Beat Officer forwarded those reports to the Range Officer who ultimately submitted prosecution report to the D. F. O. Consequently, 4 criminal cases were instituted against the opposite party Mahendra Singh and those cases were pending on 24. 9. 71 when the opposite party Mahendra Singh filed a petition of complaint against the petiioners under section 144, 147 and 379 of the Indian Penal Code on the allegation that on 15. 9. 71 the petitioners went variously armed and started lifting Sal ball as from the lands of the complainant opposite, party Mahendra Singh and that when he protested, petitioners -Kashinath Singh and Madho Singh threatened him with gun. He kept quiet out of fear. 9. 71 the petitioners went variously armed and started lifting Sal ball as from the lands of the complainant opposite, party Mahendra Singh and that when he protested, petitioners -Kashinath Singh and Madho Singh threatened him with gun. He kept quiet out of fear. According to the complaint petition 117 Sal ballas belonging to the complainant opposite party Mahendra Singh were taken by the petitioners to Gurmaha Forest Rest House. It was further stated in the complaint petition that on the following day the complainant opposite party went to the office of the accused petitioner no. I and requested him to return the ballas. Thereupon petitioner no.1 asked him to show his document in this connection. The complainant opposite party took two days' time to produce documents. After two days he showed all his documents to accused petitioner no. 1. Having seen those documents accused petitioner no. 1 asked the complainant opposite party to come to his office after two days on the pretext that he had to go out. The complainant opposite party again went to the office of petitioner no.1 after two days, when the petitioner no. 1 finally refused to return the ballas to him. The officer in charge of the police station refused to register the case against the petitioners and therefore, opposite party Mahendra Singh filed complaint before the Sub-divisional Magistrate on 24. 9. 71. It is said that this complaint case filed by opposite party Mahendra Singh is a counter blast to the aforesaid cases filed against him. 3. The Sub-divisional Magistrate examined opposite party Mahendra Singh on S. A. on 5.10.71 and referred the matter to the Magistrate Sri D.C. Shrivastava for judicial enquiry and report under section 202 of the Code of Criminal Procedure by 7.11.71. The enquiring magistrate made considerable delay in submitting report. The enquiring magistrate allowed the accused petitioners to participate in the proceeding before him. Order, dated 6.1.72 shows that 15.1.72 was fixed for spot enquiry by the enquiring magistrate and both the parties were informed through, their lawyers. Spot enquiry was, however, held on 23. 4. 72 and 16. 5. 72 was fixed for filing documents by the parties in support of their respective cases. Order, dated 26. 8. Order, dated 6.1.72 shows that 15.1.72 was fixed for spot enquiry by the enquiring magistrate and both the parties were informed through, their lawyers. Spot enquiry was, however, held on 23. 4. 72 and 16. 5. 72 was fixed for filing documents by the parties in support of their respective cases. Order, dated 26. 8. 72 of the enquiring magistrate shows that on that day a petition was filed before him on behalf of the accused petitioners requesting him not to proceed with the judicial enquiry, because the accused petitioners had filed a petition before the Sub-divisional Magistrate for recall of the enquiry from him, The enquiring Magistrate disposed of that petition with the observation that no stay order had been received from the Sub-divisional Magistrate. He fixed 28. 8. 72 for submission of enquiry report. His enquiry report, dated 28. 8. 72 was put up before the Sub-divisional Magistrate on 9.9.72. It was to the effect that the allegations made in the complaint petition were true and that cognizance should be taken. 4. In the petition, dated 18.8.72, which the accused petitioners had filed before the Sub-divisional Magistrate requesting him to recall the enquiry from Sri D.C. Shrivastava it was stated that the accused petitioner Kashinath Singh on receipt of orders of his transfer from Malehpur forest range had made a representation for his further stay at that place, because the aforesaid criminal case had been filed against him by the opposite party Mahendra Singh. It was further stated that petitioner Kashinath Singh did not make over charge to his successor Sri H.M.P. Verma, who had already arrived there to take charge from him; that this caused annoyance to Sri H. M.P. Verma; that the enquiring magistrate Sri D. C. Shrivastava was a relation of Sri H. M. P. Verma and .that Sri H. M. P. Verma was influencing the enquiring magistrate Sri D. C. Shrivastava against him (petitioner Kashinath Singh). Petitioner Kashi nath Singh apprehended that a fair and impartial enquiry was not possible at the hands of Shri D.C. Shrivastava. He, therefore, requested the Sub-divisional Magistrate to recall the enquiry from Sri D.C. Shrivastava. The Sub-divisional Magistrate ordered that petition to be put up on the date fixed in the case i. e. 16-9-72. 5. Petitioner Kashi nath Singh apprehended that a fair and impartial enquiry was not possible at the hands of Shri D.C. Shrivastava. He, therefore, requested the Sub-divisional Magistrate to recall the enquiry from Sri D.C. Shrivastava. The Sub-divisional Magistrate ordered that petition to be put up on the date fixed in the case i. e. 16-9-72. 5. As stated above, the enquiry report of Sri D.C. Shrivastava was put up before the Sub-divisional Magistrate on 9-9-72, i.e. about seven days before the date fixed in the case. Along with the enquiry report a petition filed on behalf of the complainant opposite party Mahendra Singh was also put up before the Sub-divisional Magistrate. In that petition the complainant opposite party Mahendra Singh requested the Sub-divisional Magistrate to pass order in the light of the enquiry report. The Sub-divisional Magistrate passed the following order, dated 9-9-72 : "Report from E.O. received. Complainant files hazri and a petition praying to take cognizance. Seen the report of E. O. A prima facie case is made out. Cognizance taken against the accused persons u/s 144/147 1.P.C. and is transferred to the file of Sri G. S. Thakur, Judicial Magistrate 1st class for disposal. To 30.9.72." On the same day the record was received in the court of Sri G. S. Thakur. The complainant opposite party was directed to file requisites for service of summons on the accused petitioners. This Revision petition has been filed against the aforesaid order, dated 9.9.72. 6. A counter affidavit has been filed on behalf of the complainant opposite party stating inter alia that the revision application is not maintainable in view of the provisions contained in the note appended to rule 1, Chapter XII of the Patna High Court Rules. The note run thus: “(An accused person, whether he is an appellant or an applicant for revision cannot make an affidavit in his own case. " In this case the affidavit was sworn by the accused petitioner Kashinath Singh. In the reply to the counter affidavit it has been asserted that the revision application is not hit by the note appended to rule 1, chapter XII of the Patna High Court Rules. A fresh affidavit, dated 12-8-74 in support of the contents of the revision application has however, been sworn by one Krishna Murari Dubey. In the reply to the counter affidavit it has been asserted that the revision application is not hit by the note appended to rule 1, chapter XII of the Patna High Court Rules. A fresh affidavit, dated 12-8-74 in support of the contents of the revision application has however, been sworn by one Krishna Murari Dubey. The question is whether the, making of an affidavit in his own case by the petitioner Kashinath Singh was not such a defect, which could be cured by the making of a fresh affidavit by a person, who is not a petitioner, in support of the contents of the revision application. The note appended to rule 1 of Chapter XII of the Patna High Court Rules appears to be based on sub-section (2) of section 4 of the Oaths Act, 1969, which provides: "Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully ,discharge those duties." Section 7 of the Oaths Act lays down: "No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall effect the obligation of a witness to state the truth. " Therefore, the fact that the affidavit was made by the petitioner. Kashinath Singh him- I self, does not invalidate the revision application. It was a mere irregularity which has been cured by a fresh affidavit made by Krishna Murari Dubey. 7. It is urged on behalf of the petitioners that the order dated 9-9-72 taking cognizance and transferring the case to the file of Sri G. S. Thakur was fraudulently obtained on a date, which was not a date fixed in the case without bringing to the notice of the Sub-divisional Magistrate the fact that he by his order, dated . It is urged on behalf of the petitioners that the order dated 9-9-72 taking cognizance and transferring the case to the file of Sri G. S. Thakur was fraudulently obtained on a date, which was not a date fixed in the case without bringing to the notice of the Sub-divisional Magistrate the fact that he by his order, dated . 18-8-72 had directed the petition of the accused petitioners for recall of the enquiry from Sri D.C. Srivastava to be put up on the date fixed i.e. 16-9-72. There is force in this argument. The case had been adjourned from 29-7-72 to 16-9-72 awaiting the, report of the enquiring magistrate. On 18-8-72 the accused petitioners filed a petition making the aforesaid allegations against the inquiring magistrate and requesting the Sub-divisional Magistrate to recall the inquiry from him. The Sub-divisional Magistrate did not reject that petition. He directed that petition be put up on the date fixed, i. e. 16-9-72. On 9-9-72 which was not a date fixed in the case the report of the enquiring magistrate was put, up before the Sub-divisional Magistrate along with a petition of the complainant opposite party requesting the Sub-divisional Magistrate to take cognizance. Order, dated 9-9-72 shows that the learned Sub-divisional Magistrate took-cognizance and transferred the case to Sri G. S. Thakur for disposal fixing 30-9-72. It is apparent that it was not brought to the notice of the Sub-divisional Magistrate that the date fixed in the case was 16-9-72 and that the order taking cognizance should not have' been passed on 9-9-72 and that the petition of the accused opposite party dated 18-8-72 requesting the Sub-divisional Magistrate to recall the enquiry from the enquiring magistrate was to be considered on the date fixed i. e. 16-9-72. If the correct position had been brought to the notice of the learned Sub-divisional Magistrate, he would not have, passed the order dated 9-9-72 taking cognizance and transferring the case to Sri G. S. Thakur. 8. If the learned Sub-divisional Magistrate had rejected the petition filed by the accused petitioner on 18. 8. 72 the matter would have been different. But it seems that the Sub-divisional Magistrate found that prima facie there was substance in the allegations made in that petition and therefore, he directed the same to be put up on the date fixed. 8. If the learned Sub-divisional Magistrate had rejected the petition filed by the accused petitioner on 18. 8. 72 the matter would have been different. But it seems that the Sub-divisional Magistrate found that prima facie there was substance in the allegations made in that petition and therefore, he directed the same to be put up on the date fixed. It is, therefore, clear that all the materials, which ought to have been examined could not be examined by the learned Sub-divisional Magistrate while considering the inquiry report of Sri D. C. Srivastava. The inquiry, which learned Sub-Divisional Magistrate directed to be made was to enable him to form an opinion as to whether processes should be issued or not and to remove from his mind hesitation that he might have on mere perusal of the complaint petition and the statement on solemn affirmation of the 'complainant. If the allegation made by the accused petitioner that fair and impartial enquiry was not possible at the hands of Sri D. C. Srivastava is true then the enquiry report of Shri D.C. Srivastva could not, in fact remove the hesitation or doubt which the learned Sub-divisional Magistrate had on perusal of the complaint petition and the statement of the complainant on S.A. and therefore, the order of the Sub-divisional Magistrate transferring the case to Sri G. S. Thakur for disposal after taking cognizance was vitiated by the fraudulent suppression of the petition of the accused petitioner. 9. The learned Counsel for the complainant opposite party has placed reliance on the decision of this Court in Jumrati Mian v. Bisheshwar Prasad Vishwakarma and others AIR 1967 Pat, 361 and has submitted that accused person has no locus standi when the question of issue of process on the basis of complaint against him is being decided by the Magistrate. It is true that the accused does not come into picture at all till the process is issued, in the sense that he cannot participate in the proceeding before the inquiring magistrate under section 202, but he has a right to be present at the time of enquiry and observe and watch what is happening. It is true that the accused does not come into picture at all till the process is issued, in the sense that he cannot participate in the proceeding before the inquiring magistrate under section 202, but he has a right to be present at the time of enquiry and observe and watch what is happening. In Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 S. C. 1430 their Lordships of the Supreme Court have observed: "Taking the first ground, 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 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 they should be called upon to face an accusation, he has no right to take part in the proceeding nor has the Magistrate any jurisdiction to permit him to do so." 10. If an accused remains present when an enquiry is held with a view to be informed of what is going on, it can not be said that he is precluded from bringing to the notice of the Magistrate, who had directed the enquiry to be made, any irregularity or illegality committed in the proceeding or interestedness of the inquiring magistrate in the complainant which may come to his notice. The accused I cannot participate in the proceeding before the inquiring magistrate. Therefore, the only purpose, for which the accused may remain present when the enquiry is being held is to see that there has been a fair and impartial enquiry. If fair and imparti al enquiry is not expected at the hands of the inquiring magistrate, the accused may bring the relevant facts to the notice of the magistrate. In appropriate cases the magistrate, who has to ascertain the truth or falsehood of the allegations made in the complaint petition, may look into such allegations made by the accused person against the inquiring officer, although the accused may not have locus standi till the issue of process against him. 11. In appropriate cases the magistrate, who has to ascertain the truth or falsehood of the allegations made in the complaint petition, may look into such allegations made by the accused person against the inquiring officer, although the accused may not have locus standi till the issue of process against him. 11. That being the position, in the circumstances of this case the learned Sub divisional Magistrate had to look into the allegations made by the accused persons against the inquiring Sub-divisional Magistrate accepted the report of the inquiring officer that process should be issued against the accused and transferred the case to Sri G. S. Thakur for disposal without applying his judicial mind against the inquiring magistrate. Hence his order is vitiated and is liable to set aside. 12. The impropriety of the order of the magistrate asking for a report from an interested person was considered in Emperor v. Raifi Raut 19. CWCN 127. In that case a petition had been filed before the Sub-divisional Magistrate for action under section 144 and 107 of the Code of Criminal Procedure against several persons, who were servants of a certain factory. The Sub-divisional Magistrate called for a report from the Manager of the factory. It was held that the accused being the servants of the factory, the Manager was an interested party and he ought not to have been asked to make a report in the judicial proceeding. 13. In view of the aforesaid discussions, the order of the learned Sub-divisional Magistrate transferring the case to Sri G. S. Thakur for disposal is set aside and the case is remanded for disposal in accordance with law. The learned Magistrate concerned will look into the allegations made by the accused petitioner against the inquiring magistrate and if he finds that there is substance in those allegations, he may either himself make or may get a fresh inquiry made into the allegations in the complaint petition by some other officer. If no substance is found in the allegations made by the petitioners against the inquiring magistrate Sri D. C. Srivastava, processes may issue against the accused persons and the case may proceed in accordance with law. Application allowed. Case remanded.