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5. It was contended by Mr. D.K. Purohit that the order of the Judicial Magistrate dated May 3, 1977 amounted to a dismissal of the complaint under Section 203 CrPC and such could only be set aside under Section 398 CrPC. Under Section 398 CrPC, the only order, according to the learned Counsel, that could be passed was to direct the Judicial Magistrate to make further inquiry into the complaint and such direction could only be made after giving an opportunity to the concerned persons, to show cause as to why such direction should not be made He urged that the learned Additional Sessions Judge had no jurisdiction to give a direction to the judicial Magistrate to take cognizance of he offence. According to him taking cognizance of an offence is an executive act and not a judicial one. It h not obligatory on the Magistrate to take cognizance of an offence and the cognizance of an offence can only be taken once which the learned Magistrate has already done against the accused Idrish. He further submitted that on the facts and in the circumstances, relied on by the learned Judicial Magistrate, Hanumangarh in his order dated May 3, 1977, dismissal of the protest petition was proper and the teamed Additional Sessions Judge was not justified in interfering with that order in revision, for, the view taken by the Judicial Magistrate being a possible view.

7. Mr. Bhagwati Prasad, learned Counsel for the non petitioner No. 1 (complainant) submitted that cognizance of offence had already been taken by the Judicial Magistrate against the accused Idrish The protest petition was nothing but a sort of complaint to the Magistrate against the petitioners and Karim and he was required to decide it judicially. He, therefore, urged that as it was a judicial order, revision against that order, by the complainant was justified. According to the learned Counsel, it is only the executive or administrative order which is not revisable When the protest petition was dismissed, the order tantamount to refusing to take cognizance against the petitioners and Karim It was not necessary to give an opportunity to the petitioners of showing cause under Section 398 CrPC in as much as proviso to that Section only applies to a person accused of an offence who has been discharged and question of discharge arises after summoning of accused. Learned Public Prosecutor urged that Section 239 CrPC contains provisions relating to discharge and these provisions apply when an accused person is present before the court, and in this case, that stage has not reached a yet, because it is only after taking cognizance that the petitioners would appear before the court.

Two other important sections, which deserve notice are Sections 397 and 398 CrPC, Section 397 CrPG empowers the High Court or any Sessions Judge to call for records of inferior Criminal Courts and examine them for the purpose of satisfying itself or himself as to whether a sentence, finding or order of such inferior court is legal, correct or proper, or whether the proceedings of such inferior court are regular Section 398 CrPG confers power on the High Court or Sessions Judge to order further inquiry. This section relates to proceedings antecedent and preliminary to trials, the object of which is to ascertain whether or not a trial should take place. Trial begins when the accused is charged and called on to answer, and then the question before the Court in whether the accused is to be acquitted or convicted, not whether the complaint is to be dismissed or the accused discharged. Order under Section 398 CrPC can only be for further inquiry. Proviso to Section 398 for CrPC lays-down that any direction under Section 398 for further inquiry into the case of any person who has been discharged should not be made unless such person has had an opportunity of showing cause why such direction should not be made.

The entire scheme of Ch. XVI the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued.

22. In other words, when the learned Judicial Magistrate dismissed the protest petition, it cannot be said that the petitioners were discharged and when there was no discharge, Section 398 Cr.P.C. is not attracted, for, under Section 398 Cr.P.C. an order for further inquiry can only be made, inte alia, into the case of any person accused of offence, who has been discharged. The order of the Judicial Magistrate, dismissing the protest petition or declining to take cognizance against the petitioners and Karim does not tantamount to discharging the on and, therefore, I am unable to agree with the learned Counsel for the petitioners that the order dated May, 3, 1977 amounted to discharge of the petitioners accused of offence under Section 302 IPC and that the only order that could be passed by the learned Additional Sessions Judge was to direct the Judicial Magistrate to make further inquiry into the complaint. It follows, therefore, that it was not necessary for the learned Additional Sessions Judge to have afforded an opportunity of showing cause co the petitioners as envisaged by Section 398 Cr.P.C.