Prinsep and Stephen, JJ.
1. In this case a certain person not concerned in the matter before us was, on a complaint made, convicted and sentenced under Section 404 of the Indian Penal Code. The complaint accused other persons, but the Magistrate thought proper to proceed only against one. The complainant then appeared before the Magistrate and asked that processes might be issued against the others, but this was refused. He has now obtained an order from the Sessions Judge under Section 437 of the Code of Criminal Procedure, directing a further inquiry. On an objection taken that this order was passed without notice to the petitioners, a rule has been granted to set it aside on the grounds, first, that notice should have been issued; secondly, that the order of the Magistrate refusing to entertain the complaint is not an order in regard to which a further inquiry should be made; and, lastly, that the Magistrate had no authority to take cognizance of the complaint itself. No doubt ordinarily, as laid down in the judgment of the Full Bench in the case of Hari Dass Sanyal v. Saritulla (1888) I. L. R. 15 Calc. 608, a notice should be issued before an order can be properly passed under Section 437, but in the judgment in that case, in which that point was considered and in which the majority of the Judges of the Full Bench agreed, a distinction was drawn between an order issued for further inquiry into a matter which had terminated in dismissal or discharge in the presence of certain persons accused of an offence and a summary order of dismissal of a complaint under Section 203 of the Code of Criminal Procedure in the absence of any person except the complaint, and it was pointed out that in such a case notice would not be necessary (see page 624). The present case is a case of that description. The Magistrate did not think proper to proceed against the petitioners, and subsequently when asked to do so by the complainant he refused, and this to all intents and purposes was n order under Section 208. It was therefore an order which the Sessions Judge was competent to consider under Section 437 of the Code of Criminal Procedure, and in the view that we take no notice was necessary to the parties before the Sessions Judge could act.
2. On the second point we think that we cannot properly express an opinion. It affects the merits of the case against the Petitioners. It is said that the petitioners took a less prominent part in the offence than the man who has been convicted. That will be for the Magistrate, who holds the trial, t0o determine. It is sufficient for us to point out that they have never been tried.
3. The third ground is sufficiently dealt with by the explanation given by the Magistrate.
4.The Rule is therefore discharged.