1. This rule was obtained by two persons A. O. Samaddar. and Satyendra Nath Das against whom complaint had been filed in the Court of the Sub-Divisional Magistrate, Contai, alleging that the two petitioners had cheated them. The fact alleged against them may shortly be put thus: The petitioners sold ampules of quinine to the complainants declaring that those ampules contained a certain percentage of quinine and that fact was noted on the ampules themselves. Money was paid to the petitioners on this basis. It was subsequently discovered that the ampules contained very much less quantity than they were stated to contain. Thereupon the complainants filed a complaint charging the petitioners with cheating. The learned Magistrate without examining the complainants passed an order purporting to be one under Section 166 (3),Criminal P. C, directing the police to treat the com. plaint as a First Information Report and to start investigation. The police carried out the order and made a report to the learned Sub-Divisional Magistrate. The Additional Magistrate of Mid. impure withdrew the case to- his file and transferred it to the file of Mr. S. Biswas, Deputy Magistrate of Midnapore (Sadar).
2. Before this learned Magistrate it was argued that the whole proceedings were invalid because the learned Sub-Divisional Magistrate had not examined the complainant in accordance with the provisions of 8. 200, Criminal P. O. It was further contended that there could not be an order passed under Section 156 (8), Criminal P. C. where cognisance was taken of an offence upon a complaint. The learned Magistrate accepted this view and' held that the orders upon the police to investigate ware invalid and therefore the proceeding had become void and there was no bat-is for further action. Ha accordingly discharged the petitioners. Against this order of discharge a motion was taken to the Additional District Magistrate. He held that on receiving a petition of complaint a Magistrate may act either under Section 200, Criminal P. C., and examine the complainant on oath or he may take action under Section 166(3), Criminal P. C. and direct the police to investigate. The learned Additional Magistrate further says that if the Magistrate decided to proceed under Section 200, Criminal P. C. it was incumbent upon him to examine the complainant bat if he proceeded under s, 156 (8), Criminal P. C. no such examination was necessary. He further held, that in this case the Magistrate had decided to adopt the latter course viz,, to refer the matter to the police under Section 168 (3), Criminal P. C. and that therefore the examination of the complainant on oath was not necessary. In this view he set aside the order of discharge passed by Mr. Biswas and directed a further enquiry by some Magistrate other than Mr. Biswas. Against this order of the Additional District Magistrate this Court has been moved.
3. It was argued on behalf of the petitioners that the Magistrate upon receipt of the complaint took cognisance of it and therefore he had no option but to proceed in accordance with the provisions of Section 200, Criminal P. C. and examine the complainant on oath. Failure to do this, it was contended, rendered the whole subsequent proceedings void. Nest, it was contended that Section 156 (8), Criminal P. C. had no application where cognisance of an offence had been taken upon a complaint. On this ground it was contended by the learned advocate for the petitioners that the order of discharge was a proper One. It was also pointed out to me by the learn. fid advocate for the petitioners that the parties bad agreed to compound the offence and that in fact they had compounded the offence and therefore no farther proceedings should have been permitted. This argument, however, was given up when it was pointed out that the offence of cheating is compoundable only if the trying Magistrate consents to its being compounded and that in this case the trying Magistrate refused to consent. I shall therefore not deal further with this point. The learned advocate appearing for the Crown argued that cognisance of the offence had really not been taken by the learned Magistrate and he stated that upon receipt of a complaint the learned Magistrate had the option .to take cognisance or not and he stressed the use of the word 'may take cognisance of any offence' in Section 190(l), Criminal P.C. He then referred to Section 200 and stated that it had application only when cognisance had been taken by the learned Magistrate and that as in this case cognisance had not been taken there was no necessity for the learned Magistrate to examine the complainant. Next he contended that the learned Magistrate had the power to act under Section 156 (3), Criminal P. C. and send the complaint to the police to be treated as a First Information for investigation.
4. In my opinion the contentions urged on behalf of the Grown cannot be sustained. Upon complaint being filed before a Magistrate, the Magistrate is be und to take cognisance of the. offence disclosed by the complaint. He has no option in other matter. The word 'may' which appears in Section 190 (l), Criminal P. C. does not give the Magistrate any option in the matter, it merely empowers the Magistrate to take cognisance of any offence in the three circumstances mentioned in els. (a), (b) and (c), Sub-section (l) of Section 190, Criminal P. C. Put in another way what the section says is this, that a Magistrate is empowered to take cognisance (a) upon a complaint, or (b) upon a report in writing made by a police officer or (c) upon information received from any person. This view was taken by this Court in the case of Umer Ali v. Safer Ali and another., 13 cal. 334. In this case a reference was made by the Sessions Judge exactly on this point and this Court gave the opinion that upon receipt of a complaint the Magistrate was not competent to refuse to take cognisance of the offence but he was be und to examine the com. plainant and proceed to issue summons on the accused or order an enquiry in accordance with the provisions of subsequent sections of the Chapter. Their Lordships say this:
The use of the term 'may take cognizance of any offence does not make it optional with a Magistrate to hear the complainant. It refers rather to the action of a Magistrate in taking cognizance of an offence in either of these specified courses in which the facts, constituting an offence, may be brought to his notice.
I respectfully agree with this view, and I hold that the learned Magistrate was be und to- take cognisance of the offence disclosed by the complainant. Now if that is so, the next thing which the Magistrate is be und to do is to act under Section 200, Criminal P. C. which says- 'A Magistrate taking cognisance of an offence on complaint shall at once examine the complainant upon oath.' There can be no doubt here of the mandatory nature of this provision. A failure to examine the complainant upon oath, renders subsequent proceedings invalid. This was held by Derbyshire C. J. in criminal Ref. No. 40 of 1940, Kashmiri Lai Garga v. Ismail and others. This was also the view taken by me in certain unreported decisions.
5. The next point for decision is whether a Magistrate taking cognisance of an offence upon complaint is permitted under the law to refer the matter to the police for investigation and submission of a report in accordance with the provisions of Section 166 (3), Criminal P. C, In my opinion, the Magistrate has no jurisdiction to make such an order. This was the view held by the Madras High Court in the case of In re Arula Kotiah and In re Kasetti Ademma, 12 Cr. L. J. 468 : (11 I. C. 999 Mad.). It was pointed out there that Section 156 (3) is to be found in chap. 14, Criminal P. C. and that it was not intended to provide an alternate procedure to that laid down in Section 200 and the following sections which are in Chap. 16, Criminal P. C. I agree with this view. Cognisance has been taken of the offence according to the provisions of chap. 16, Criminal P. C. and the procedure laid down by the different sections of that chapter must be followed. That procedure cannot be substituted by the procedure mentioned in Section 1S6 (8), Criminal P. C. The learned Magistrate, therefore, had no jurisdiction to refer the matter to the police under Section 156 (3) and the learned Additional District Magistrate who was moved by the complainant was wrong in holding that s .156 (8) is meant to provide, an alternate procedure with respect to proceedings initiated upon complaint. A similar view seems to be indicated. in the case of Lohenath Patra v. Sanyasi Charan Manna, 80 cal. 928. This matter was considered in a later case, Isaf Nasya v. Emperor : AIR1928Cal24 and it was held that a Magistrate taking cognisance of an offence under Section 190 (l)(a), Criminal P. C., i. e., upon a I complaint, acted without jurisdiction when he I referred the matter to the police under Section 156(3), I Criminal P. C.
6. It is thus clear that the order of the learned Magistrate who took cognisance of the offence upon a complaint directing the police to investigate the matter and submit a charge sheet was without jurisdiction. The question remains as. to what should be done in these circumstances. In my opinion, the learned trial Court was wrong in discharging the petitioners. The petitioners cannot be discharged until they were summoned and made accused persons. The use of the word 'accused' in Section 253, Criminal P. C. makes it quite clear. The order of discharge was, therefore, wrong and must be set aside but for reason other than those given by the Additional District Magistrate. The trial Magistrate shall examine the complainant on oath and follow the provisions of Section 200 and the' following relevant sections of chap. 16 and thereafter decide the case according to law in the light of the observations made above.
7. The rule is disposed of in this way.