1. This is a petition for revision of an order of a learned Magistrate acquitting the opposite parties under Section 258, Criminal P. C.
2. The learned Magistrate held that the whole of the trial was illegal and he did not enter into the merits of the dispute.
3. It appears that a complaint was made to a learned Magistrate alleging offences under Sections 448 and 341, Penal Code. On 6th December 1947, the learned Magistrate passed the following order:'O/C Watgunge, P.S--to make an enquiry and take cognizance if any cognizable offence is made out and send a report by 6th January 1948.'
4. The police apparently reported, as an order of 6th January 1948, reads: 'Seen report. Complainant absent--file.' There is another order of the same date: ' Complainant appears by petition. Seen police report. Summon Balai Lal Das and Parmeswar Singh under Section 488 and 341, Penal Code for 4th February 1948.'
5. The proceedings continued after the evidence of the prosecution had been taken and charges framed and witnesses cross-examined. A point was taken by learned advocate for the defence that the whole trial was without jurisdiction by reason of the orders passed by the learned Magistrate.
6. When the complaint was filed before the learned Magistrate he could have adopted one of two courses. He could have examined the complainant upon oath, and then issued process. On the other hand, he could under Section 202, Criminal P. C. postpone the issue of process and refer the complaint to a Magistrate or the police for further enquiry and then take action on receipt of the report.
7. The other course open to the Magistrate was to send the complaint to the police asking them to take action under Section 166(3), Criminal P. C. In that case the Magistrate would not examine the complainant, but merely forward the complaint to the police for investigation and taking cognizance.
8. It will be seen that the learned Magistrate in this case forwarded the complaint to the police to make an enquiry and take cognizance if any cognizable offence was made out and send a report. It is an order which cannot possibly be made. Either the Magistrate himself examines the complainant and then asks the police to enquire and report or the complaint must be sent to the police for them to enquire and take cognizance if they think proper.
9. In the present case it is quite clear that the Magistrate acted under Section 202, Criminal P. C. and having seen the report he took cognizance and summoned the accused; but it is to be observed that he never examined the complainant on oath as required by Section 200 and therefore he could not in the circumstances take cognizance under Ch. 16 and the proceedings thereafter were illegal.
10. The case does not fall within Section 156(3) because the police though asked to enquire and take cognizance were also asked to report. The police did not submit a charge sheet or a challan but reported and, therefore, quite clearly they did not act under Section 156(3) of the Code. It seems to me that this case is completely covered by a recent Bench-decision of this Court in the case of Pulin Behari Ghose v. The King, 53 C. W. N. 653. There very much the same thing happened and the Bench held that when a complaint is filed before a Magistrate he should either take cognizance of it under Section 300 of the Code and proceed under Ch. 16 or send the complaint to the officer in charge of the Police Station directing him to proceed under Ch. 14 of the Code. He should not make a hybrid composite order, both under Section 156(3) and under Section 202 of the Code.
11. The Magistrate here took cognizance after a report without examination of the complainant and the proceedings thereafter were illegal and the learned Magistrate was right in so holding.
12. That being so, this petition which is directed against the order of discharge fails and is dismissed.
13. The Rule is discharged.
J.P. Mitter, J.