ORDER
Das, C.J.
1. This is an application in revision in respect of an order dated the 20th of December, 1955, passed by the learned second Additional Sessions Judge of Bhagalpur. The short facts relevant for our present purpose are these. One Rasiklal Mandal instituted a case of arson against certain persons alleging that on the night of the 28th of October, 1953, those persons came armed with weapons to the cattle-shed of Rasiklal Mandal and set fire to it. The case was instituted before the Police.
On the 25th of November 1953, the Police submitted a final report in the case and also made a report praying that Rasiklal Mandal should be prosecuted for an offence under Section 211 read with Section 182 of the I. P. C. On the basis of the Police report, the learned Subdivisional Magistrate issued a notice to Rasiklal Mandal directing the latter to show cause why he should not be prosecuted for an offence under Section 211, I. P. C. Rasiklal Mandal fifed a protest petition against the Police report which, presumably, was treated as a petition of complaint by the learned Subdivisional Magistrate because the learned Subdivisional Magistrate asked another Magistrate to hold a judicial enquiry into the case of Rasiklal Mandal.
In this way two cases were started before the learned Subdivisional Magistrate, one related, to the protest petition of Rasiklal Mandal, which was sent for judicial enquiry and the other related to the report submitted by the police praying that Rasiklal Mandal should be prosecuted for an offence under Section 211 of the I. P. C. The Magistrate who held the judicial enquiry into the protest Petition of Sasiklal Mandal submitted a report on the 28th March, 1955. In that report the Magistrate said that the prosecution evidence on behalf of Rasiklal Mandal was of a very weak nature.
2. On receipt of the said report the learned Magistrate by an order dated the 8th of July, 1955, dismissed the protest petition of Rasiklal Mandal. By another order dated the 21st of July 1955, he dropped the proceeding in which a prayer for the prosecution, of Rasiklal Mandal was made.
3. Against the order dated the 21st of July, 1955, an appeal was filed to the learned Sessions Judge, apparently under the provisions of Section 476B of the Code of Criminal Procedure.
The appeal was filed by Dukha Mandal and others, who were the accused persons in Rasiklal Mandal’s complaint or information. The learned second Additional Sessions Judge of Bhagalpur heard the appeal of Dukha Mandal and others and came to the conclusion that no appeal lay under Section 476B of the Code of Criminal Procedure. He, however, treated the memorandum of appeal as an application in revision and purporting to act under the provisions of Section 436 of the Code of Criminal Procedure he set aside the order dated the 21st of July, 1955, and directed a further enquiry.
4. It has been argued before me on behalf of the petitioner Rasiklal Mandal that the order of the learned second Additional Sessions Judge was without jurisdiction. This argument in my opinion is correct and should be upheld.
5. Section 436 of the Code of Criminal Procedure, under which the learned Second Additional Sessions Judge purported to act, relates to two
kinds of orders, (1) any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204, and (2) any person accused of an offence who has been discharged. It is obvious that the order dated the 2lst of July, 1955, did not operate as an order of discharge because the accused persons had not even been summoned before that date.
What happened was that the Police had made a report for the prosecution of Rasiklal Mandal, and Rasiklal Mandal was asked to show cause why he should not be prosecuted. The learned Magistrate accepted the show cause petition and dropped the proceeding. It is clear to me that it was not an order of discharge.
I do not think that the order dated the 2lst of July, 1955. was an order dismissing a complaint. There was really no complaint before the learned Magistrate; there was merely a report by the Police for prosecuting Rasiklal Mandal.
6. Rasiklal Mandal had himself filed a protest petition which was treated as a petition of complaint and was dismissed by the learned Magistrate on the 8th of July, 1955. Therefore if any complaint had to be made against Rasiklal Mandal for an offence under Section 211 of the I. P. C., complaint had to be made by the Magistrate before whom a false complaint had been made by Rasiklal Mandal.
7. In my opinion, the learned Additional Sessions Judge completely misconceived the scope of Section 436 of the Code of Criminal Procedure. Actually, Dukha Mandal and others were entitled to file an appeal under Section 476B of the Code of Criminal Procedure against the order of the learned Subdivi-sional Magistrate refusing to make a complaint against Rasiklal Mandal. Learned Counsel for Dukha Mandal and others has submitted before me that I should set aside the order of the learned Additional Sessions Judge and remand the case to him for hearing as an appeal under Section 476B.
8. Having read the order of the learned Additional ‘Sessions Judge and the order of the Sub-divisional Magistrate, I do not think any useful purpose win be served by passing an order of remand. It is obvious that the case of Rasiklal Mandal was thrown out on the main ground that the evidence which he gave in support of his case was of a weak nature. I do not think that this is a fit case in which a complaint should be made against Rasiklal Mandal.
9. For the reasons given above. I would allow the application and set aside the order of the learned Additional Sessions Judge dated the 20th of December, 1955.