SURINDRA MOHAN MAJUMDAR Vs. BABULAL TUDU

JUDGEMENT

(1.) - This rule seeks to quash an order passed by the learned Sub Divisional Judicial Magistrate, Islampore on the 23rd march 1982 whereby he had issued process against the petitioner under Sections 143/379 etc. I.P.C. in the circumstances as under.

(2.) The opposite party no. I had filed a petition of complaint before the learned Magistrate alleging commission of certain offence by the present petitioner. The learned Magistrate postponed the issue of process and for the purpose of deciding whether there was sufficient ground for proceeding directed an investigation by the Schedule Castes and Schedule Tribes Welfare Officer in accordance with the provisions of Section 202(1) Code of Criminal Procedure. The report was ultimately received and considering the same the learned Magistrate had issued process by an order made on the aforesaid date which is sought to be revised inter alias on the ground that the investigation was held not by the Schedule Castes and Schedule Tribes Welfare Officer as directed by the learned Magistrate but by a K.G.O. (T & W) to whom the investigation was entrusted by the Schedule Castes and Schedule Tribes Welfare Officer.

(3.) The short point for determination, therefore, is whether the result of the investigation as mace by the KGO (T & W.) could be taken note of by be learned Magistrate for the purpose of deciding whether there was sufficient ground for proceeding. Section 202(1) Code of Criminal Procedure provides inter alia that the Magistrate may direct an investigation by such person as he thinks fit for the purpose of deciding whether or, not there is sufficient ground for proceeding. Therefore, it is entirely for the Magistrate to decide the fitness of a person to hold an investigation and not open to the person so found fit to entrust the investigation to somebody else. In other words the person ordered by a Magistrate to hold an investigation cannot delegate his function to somebody else and if he does so the person delegated acquires no jurisdiction to investigate. Therefore, in the instant case it must be held that the entrustment of the enquiry-by the Scheduled Cases and Scheduled Tribes Welfare Officer was not within his competence nor the K.G.O. (T & W) acquired any authority to hold the investigation by reason of such delegation. The result in that the learned Magistrate ought not to have looked into the result of such investigation and the order Sliming process upon the petitioner cannot consequently be sustained.