1. This is a petition for revision of an order of a learned Magistrate whereby he declined to hold that certain proceedings were void ab initio.
2. A complaint was made to a learned Magistrate by one Khagendra Nath Haldar alleging that the present petitioner had set fire to a stack of straw on 18th December 1948, and that they were guilty of offences under the Penal Code. It is clear from the order sheet that the Magistrate took no action at all except to send the complaint to the Officer-in-charge of the Mandirbazar Police Station for taking cognizance. In fact that is the allegation made in para. 2 of the petition.
3. The Police investigated and eventually framed a charge sheet and the case proceeded in Court based on the charge sheet. Later it was suggested that the whole of the proceedings were void ab initio because the Magistrate had acted wrongly and reliance was placed on a number of authorities including a very recent authority of this Court to which I am a party.
4. It is quite clear that a Magistrate may order an investigation by the police and it appears to me that that was all the Magistrate did in this case. Section 156 (3) expressly provides that any Magistrate empowered under Section 190 may order such an investigation as mentioned in the preceding sub-sections of that section.
5. The Magistrate of course can also take cognizance of the offence, examine the complainant and if necessary send the complaint to the police for investigation and report. It as a result of such an order the police submit a charge sheet and proceedings are based thereon, such proceedings, according to the recent authorities, would be wholly without jurisdiction. However, if the Magistrate does not take cognizance, but merely forwards the complaint to the police for investigation and for taking cognizance he acts under Section 156 (3), Criminal P. C , and a charge-sheet can be submitted by the police and proceedings based thereon.
6. The view of the learned Magistrate in this case cannot possibly be assailed and. accordingly the petition fails and is dismissed. The Rule is discharged.