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Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

Now to appreciate the true legal position, it may first be highlighted that the afore-quoted Section 398 is in pari materia with Section 436(1) of the Code of Criminal Procedure 1898 and with Section 437 of the earlier Code of Criminal Procedure 1882. The very core of the question is the true import of the phrase "further inquiry" as used in Section 398 and the corresponding sections of the predecessor Codes. On this issue, it appears to me that/it would now be patently wasteful to launch on along dissertation on principle because the matter has been the subject of examination in erudite judgments ranging from the last century till now. It would suffice, therefore, to examine the validity of the mass of precedents on the point and to indicate the preference for the specific construction where there is a patent divergence of judicial view. However, I may make it clear at the very outset that this conflict of judicial opinion is now rendered more of academic interest in view of the material amendments made by the Code of 1973 and in particular by the insertion of Section 399 of the Code with regard to the revisional powers now exerdsable by the Court of Session. Nevertheless to arrive at a correct perspective and to resolve the undoubted conflict of judicial precedent, it becomes necessary to advert, however briefly, to some salient judgments on the point.

13. It will be evident from the above that the weight of precedent seems to be clearly in favour of the view that the term 'further enquiry" used in Section 398 of the present Code and in Section 436 of the earlier Code does not envisage within it either a direction to the trial Magistrate to summon the person accused or frame a charge against him and to put him on trial.

14. Nevertheless it becomes necessary to notice a discordant note which had undoubtedly been struck by the Patna High Court. Therein first in Udit Narayan v. Emperor AIR 1938 Pat 369 : 39 Cri LJ 778. Mohamad Noor J.. observed that further enquiry under Section 436 had come to acquire a technical meaning and it implied reconsideration of the material before the trial Court. However, he added by way of a gloss that in a case in which a complaint had been dismissed after a complete enquiry the order of the superior Court for further enquiry can only be complied with by putting the accused on trial. No principle or authority appears to have been cited for this observation and it is plain from the judgment that the matter was not considered in any great depth. The Division Bench judgment in Udit Narayan Pat-wari's case was inevitably followed by Chief Justice Das in Brijnath Sahai v. Babu Lal 1957 Cri LJ 290, but he slightly elongated the obesrva-tion therein by holding that any other interpretation would lead to an impasse. Later another, single Judge of the Patna High Court followed the aforesaid view in Abu Bakkar v. Belal Sheikh. 1968 Cri LJ 1257.

A closer analysis and in-depth examination of the aforesaid observations, however, would bring out the fact that the apprehension of an impasse does not seem to be well founded. Under the earlier Code so far as the High Court is concerned there seems to be no manner of doubt that in its larger revisional powers under Section 439 it could always direct! the framing of a charge and putting the accused person on trial or to be committed for trial. Therefore apart from Section 436 of the old Code the High Court would always be in a position to resolve any difference of opinion with the trial Court in its favour by giving such a direction not under Section 436 but under the larger revisional powers under Section 439. Even as regards the Court of Session the impasse theory is not of great validity. Under the earlier Code the Court of Session always had the power to report the matter to the High Court and the latter could then pass the necessary orders under Section 439 of the Code. The Patna judgments, therefore, again fail to take note of the larger revisional powers of the High Court under Section 439 and the power of the Court of Session to report and recommend to the High Court for a direction to summon or to frame a charge or to proceed to trial. Therefore any deadlock on this point was easily resolvable in favour of the superior Court.

19. In view of the above, with the greatest respect, therefore, I would dissent from the Patna view and in line with the weight of precedent hold that the term 'further enquiry' does not warrant a direction to the trial Magistrate to either summon the accused person or to frame a charge against him and proceed to trial thereafter.

20. Though I have held as above it is equally manifest, as observed earlier, that now the arena of controversy has been virtually effaced by the enactment of the Code of Criminal Procedure 1973 whereby under Section 399. the Court of Session in its revisional iurisdiction has now been clothed with all or any of the powers which may be exercised by the High Court under Section 401(1). Herein the matter does call for a brief historical perspective. The necessity for having a separate provision like Section 436 in the earlier Code is manifest. Thereunder the Court of Session in its revisional jurisdiction was primarily a reporting or a recommendatory Court and the basic revisional powers were vested in the High Court alone under Section 439. However, for the limited purpose of meeting the situation where a complaint has been wrongly dismissed as a whole or an accused had been wrongly discharged the Court of Session was given a larger power at par with the High Court, namely, that of directing further enquiry into such cases. This was done by virtue of Section 436 of the old Code. Within this narrow field it was not necessary for the Court of Session to report the matter to the High Court but it could in its own right direct further enquiry in sharp distinction to other cases where it could only recommend to the High Court for necessary action in the latter's revisional iurisdiction. Even though under the new Code the revisional powers of the Court of Session by virtue of Section 399 have been substantially equated with those of the High Court under Section 401(1) a provision in pari materia with Section 436 of the old Code has been ratained in the shape of Section 398 of the New Code. Undoubtedly now the revisional powers of the Court of Session under Sections 398 and 399 would in some field overlap each other. It is patent, however, that the Court of Session is now clothed with the revisional powers contained both in Sections 398 and 399 of the new Code,