MADAN MOHAN GHOSH Vs. THE STATE

JUDGEMENT

(1.) The petitioner filed a complaint before the learned Sab-Divisional Judicial Magistrate, Arambagh, against 11 accused persons for having committed offences punishable under Sections 141.447,395, 412 and 506(2) of the Indian Penal Code. The learned Magistrate took cognizance upon the complaint and being of the view that the same disclosed offences under "S. 395 397 of the Indian Penal Code decided to hold an enquiry in accordance with proviso to Sec. 202(2) of the Code of Criminal Procedure. After all the witnesses produced by the complainant were examined, the learned Magistrate felt it absolutely necessary to find out the present position of the record-of-rights in respect of the land in question, where in the dacoity was alleged to have been committed and accordingly by his order dated 30.11.1978 directed the Charge Officer, Settlement Camp, Goghat, to furnish him a report communicating the names of the persons in whose name some of those plots stood recorded in the R.S. Settlement. He also directed the Charge Officer to report whether there was any bargadar or bargadars recorded in respect so such lands and asked the Charge Officer to answer some of his further queries. The above order dated 30.11.1978 forms the subject-matter of challenge in the present Rule.

(2.) Under Sec. 202(1) of the Code of Criminal Procedure if the learned Magistrate thinks fit to postpone the issue of process against the accused, he can either enquire 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 was sufficient ground for proceeding. The proviso (a) to the said section expressly provides that no such direction for investigation can he made where it appeared to the Magistrate that the offence complained of was triable exclusively by the Court of Sessions and in such cases he has to act in accordance with the provision of sub-section (2) read with the provision thereof. In the instant ease the learned Magistrate himself recorded in order to the effect that the offence was exclusively triable by the Court of Sessions. In all such circumstances the learned Magistrate was required to enquire into the matter in accordance with the provision of Sec. 202(2) read with the proviso thereof and he cannot ask any officer to make an investigation into the matter. That being the position in law the order of the learned Magistrate regarding the directions given to the Charge Officer of the Settlement Camp, Goghat, cannot be supported.

(3.) In the result, the application succeeds and Rule is made absolute. The direction of the learned Magistrate for an investigation by the Charge Officer, Settlement Camp, Goghat, as passed in the impugned order is hereby set aside and the learned Magistrate is directed to proceed with the complaint in accordance with law and in the light of the observations made hereinbefore. Rule made absolute.