1. It appears that the real facts in this case are that when the Sub-Magistrate referred the case under Section 202 to the Police for investigation the Police sent in a charge-sheet to the Sub-Magistrate, who accepted it and sent it up to the Sub-Divisional Magistrate under Section 346, as he was of the opinion that it was a first class case. It is argued that Section 346 does not permit such action by the Sub-Magistrate at such a stage of proceedings. The argument takes up two positions (1), that evidence in Section 346 is 'evidence' taken by the Magistrate himself and not the statements recorded by the Police, (2) that 'inquiry' does not begin until the Magistrate himself begins to take evidence. No authority is cited for either position.
2. As to (1), I see no reason to restrict the word 'evidence' to depositions recorded by the Magistrate. Evidence in this section I take it to mean all facts and statements which have been disclosed by his enquiry. As to (2), I also see no reason for so restricting the meaning of the word 'enquiry'. I take it that when the Magistrate directs under Section 202, Criminal Procedure Code, inquiry by another Magistrate or Police Officer or other person, he is doing so in the course of his own enquiry into the offence and that his own enquiry is, therefore, already begun. It was open to the Sub-Magistrate when he received the Police report under Section 202, which in this case took the form of a charge-sheet, to dismiss the complaint or proceed with it. He chose to proceed with it on the facts disclosed in that report and refer it under Section 346 to the Sub-Divisional Magistrate. I cannot find here any lack of jurisdiction.
3. I note that the petition to the Sub-Divisional Magistrate objecting to his jurisdiction was not put in till several months after the trial of the case began before him and after several of the prosecution witnesses had been examined. There is thus considerable ground for the Public Prosecutor's contention that the petition was merely put in for the purpose of delaying the trial. The petition is dismissed.