Legal Provisions of Section 398 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
When complaints are dismissed under Sections 203 and 204 (4) and the accused is ordered to be discharged, there is no provision for appeal against such dismissal or discharge, like the one which is provided for in case of acquittal or conviction. Therefore, this section empowers the High Court or the Sessions Judge or the CJM to order further inquiry to set aside the dismissal of the complaint or order of discharge of the accused.
ADVERTISEMENTS:
This section confers concurrent jurisdiction to three Courts to order further inquiry namely, the High Court, the Sessions Judge and the Chief Judicial Magistrate. The High Court and the Sessions Judge can act under the section and further inquiry must be made by the CJM or any Magistrate subordinate to him.
The order of dismissal of complaint or discharge of the accused can be interfered with on the ground of illegality, irregularity or impropriety or incorrectness. Where the High Court or Sessions Judge or CJM finds that the order of dismissal or discharge passed by the inferior Court is opposed to the law but at the same time, having regard to the evidence and other circumstances, there is no need to direct further inquiry under this section, it may dismiss the petition merely pointing out the illegality in the order to be rectified.
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The person aggrieved by the dismissal of the complaint or discharge of the accused can move any of the aforesaid three forums under Section 398 but normally the aggrieved party should first move the Chief Judicial Magistrate or the Sessions Judge, as the case may be.
Where the CJM has once ordered further inquiry under this section, the Sessions Judge has no jurisdiction to review his order. He may however, refer the matter to the High Court. The Chief Judicial Magistrate is only empowered to order further inquiry but he has no jurisdiction to order re-trial of the case under this section.
ADVERTISEMENTS:
The Courts mentioned above, which have been conferred jurisdiction under Section 398 should, before setting aside in order of dismissal of complaint or discharge of the accused, must assign cogent reasons for doing so, and also give an opportunity to the accused to show cause why direction should not be made.
Where the Sessions Judge or the Chief Judicial Magistrate finds that on the basis of evidence there is solid reason for charging and trying the accused of the offence of which he has been discharged and there is no need for a further Magistrate inquiry, he should refer the case to the High Court which may make necessary order.
The term ‘further inquiry’ used in the section does not mean fresh inquiry or an inquiry de novo. It only means re-appraisal of the very evidence which was examined earlier prior to making an order of dismissal or discharge.
The expression ‘any person accused of an offence’ used in this section refers to a person who was accused of an offence. Therefore, it does not include persons against whom proceedings have been taken under Sections 109, 110, 125, 133 and 145 of the Code.
ADVERTISEMENTS:
The proviso to this section makes it imperative for the Court to issue show-cause notice to the accused person stating why further inquiry should not be directed against him. Obviously, the proviso applies only to the cases where the accused has been discharged and it does not apply to the dismissal of the complaint. Non-compliance of this formality would be an illegality which is bound to be prejudicial for the accused person against whom further inquiry is contemplated.