R.N. Misra, J.
1. This is a reference made by the learned Additional Sessions Judge, Puri, recommending the quashing of the order dated 15-9-67 in a pending G. R. case on the file of the Sub-Divisional Magistrate, Khurda. By the impugned order the learned Magistrate directed,
'The C. S. I. applies that one Anam Padhan who has been named in the F. I. R. and by the witnesses before the police, but has not been charge-sheeted be summoned. Summon this accused to next date.'
2. Two contentions were raised before the learned Additional Sessions Judge. They are:--
(1) The order of the Magistrate directing the police to submit charge-sheet upon a final report is contrary to law and without jurisdiction; so the subsequent orders passed including the order directing the petitioner to appear as an accused are illegal and liable to be set aside.
(2) The learned S. D. M. while directing issue of summons to the petitioner to appear as an accused has not applied his mind and as such the order is illegal and cannot be sustained.
In the present case the final report after investigation was sent to the Court with an endorsement therein from the Superintendent of Police, Puri, dated 5-7-67 to the following effect:
'Forwarded to the S. D. O., Khurda. There appears to be prima facie evidence for trial. The S. I. may be directed to submit charge-sheet.'
On this report on 7-7-67, the S. D. O. and Magistrate, First Class passed the following order:
'S. I. Banpur
Please submit charge-sheet in the case.'
It has been held by their Lordships of the Supreme Court in AIR 1968 SC 117, Abhinandan Jha v. Dinesh Mishra that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the Police are entirely different, and though, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon, the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. In paragraph 18 of the judgment, Vaidialingam, J., speaking on behalf of the Court, said
'We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.'
Investigation in this case was carried on by the Officer-in-charge of the police station and he formed the opinion that it was not a case where the accused should be placed before the Magistrate for trial. The endorsement made by the Superintendent of Police can-not change the position. As the superior of the investigating machinery it was open to the Superintendent of Police to require the investigating officer, in case it was so necessary on the facts, to send a charge-sheet, but when the final report was being placed before the court it was not open to the Superintendent of Police to make the endorsement in the manner indicated and thereby allow the learned Magistrate to compel the investigating officer to accord with his view. The dictum laid down by their Lordships of the Supreme Court in the aforesaid decision would equally apply to the facts of the present case notwithstanding the endorsement of the Superintendent of Police. In the circumstances, I overrule the objection raised by Mr. Patnaik appearing on behalf of the informant and accept the view adopted by the learned Additional Sessions Judge.
3. This leads to the examination of the correctness of the second proposition. Normally such a question need not be examined as on the conclusion of mine on the first aspect the prosecution is to fail. But since that matter has arisen, I am prepared to indicate my views. The petitioner was not charge-sheeted by the police. No evidence has been led in the court as yet. If the investigating machinery having not been satisfied with whatever evidence was collected was not prepared to charge-sheet the petitioner, it was not open to the prosecutor to ask the learned Magistrate without any further evidence being placed before the court to summon somebody who had not been charge-sheeted. There has been no improvement in the position between the date when the charge-sheet was submitted and the date of the impugned order. The Magistrate's power to summon a person to stand trial when there is prima facie evidence before him during examination of witnesses for the prosecution is undisputed. But in the present case where no evidence had been led and the learned Magistrate had no other papers before him than the charge-sheet or the case diary, on the analogy of the Supreme Court decision indicated above I must hold that the learned Magistrate had no jurisdiction to direct summons to be issued to the petitioner. The decision of their Lordships of the Supreme Court in AIR 1967 SC 1167, Raghubans Dubey v. State of Bihar would also be applicable as indicated by the learned Additional Sessions Judge. In the circumstances the impugned order is also bad on that account.
4. The petitioner in this revision is only one against whom summons was ordered to be issued on 15-9-67. Charge-sheet had been submitted pursuant to the order of the learned Magistrate against 28 other persons. In consideration of the conclusions reached by me that the direction to submit a charge-sheet was wrong I am bound to hold that the prosecution in the court below is with-out jurisdiction. Therefore, while accepting the reference of the learned Additional Sessions Judge, for the reasons indicated above I also assume jurisdiction under Section 439, Cr. P. C. and direct that the entire proceeding forming the subject matter of G. R. 564 of 1966 on the file of the S. D. M., Khurda be quashed. The reference is accepted.