- (1.) ON July 10, 1981, a petition of complaint was made in the court of the learned Sub -divisional Judicial Magistrate, Baripada, by the opposite party No. 1, as the complainant, against the petitioner, the opposite party No. 2 and Smt. Ginidevi Saha for commission of offences punishable under Secs. 341, 366 and 498 of the Penal Code. The learned Sub -divisional Judicial Magistrate recorded the initial statement of the opposite party No. 1 and fixed August 11, 1981 as the date of inquiry under S. 202 of the Criminal P. C., 1973 (Act No. 2 of 1974), to be referred to hereinafter as the Code, with a direction to the opposite party No. 1 to produce all his witnesses. On the date fixed for inquiry, the learned Sub -divisional Judicial Magistrate made a direction to send copies of the complaint and the initial statement of the opposite party No. 1 to the court of Mr. G. P. Rao, Judicial Magistrate, First Class, to hold the inquiry under Section 202 of the Code and submit his report. On October 24, 1981, the learned Sub -divisional Judicial Magistrate, on the basis of the report of inquiry of the Judicial Magistrate, dismissed the complaint against the accused Smt. Ginidevi Saha, took cognisance of the offences punishable under Secs. 341, 356 and 498 of the Penal Code against the petitioner and the opposite party No. 2 and issued processes against him. By making an application under Section 482 of the Code, the petitioner assails the order taking cognisance and the order directing issue of processes against the petitioner and the opposite party No. 2 as being illegal and invalid in law and Invokes the inherent jurisdiction of this Court to quash the criminal proceeding.
(2.) INVITING my attention to the provision contained in Section 202 of the Code and the principles laid down by two Division Benches of the Patna High Court in ILR (1978) 57 Patna 903 Jitan Tiwari v. State of Bihar and ILR (1979) 58 Patna 79 Smt. Janki Devi v. State of Bihar and by a Division Bench of the Calcutta High Court in 1976 Cri LJ 876 Asoke Chatterjee v. Sm. Manisha Mukherjee, to the effect that after coming into force of the Code, no direction for investigation can be issued to a Judicial Magistrate, it has been submitted by Mr. Panigrahi for the petitioner that the impugned order taking cognisance on the basis of a report of inquiry made by a Judicial Magistrate is illegal and invalid. The opposite party No. 1 has not entered appearance in spite of service of notice personally on him. Mr. Nayak, appearing on behalf of the opposite party No. 2, has supported the stand taken by the petitioner. No decision of the Supreme Court or of this Court has been cited at the Bar. Section 202 of the Code provides: "202. Postponement of issue of process: - (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Sec. 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, - (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, or (b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under Sec. 200. (2) In an inquiry under Sub -sec. (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub -s. (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
(3.) THE questions for consideration are as to whether the inquiry could be entrusted to another Judicial Magistrate and as to whether the expression "such other person" occurring in sub -sec. (1) of Section 202 of the Code to whom a direction can be issued for investigation includes a Judicial Magistrate.;