RAMPADARATH RAI Vs. BISHUN MANDAL

JUDGEMENT

(1.) - This case has come to us on a reference made by S. Shamsul Hasan, . The question for consideration is whether an Executive Magistrate can be asked to investigate a complaint under section 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as (he new Code.)

(2.) On 21st March, 1975, a complaint was filed by opposite party Bishun Mandal in the Court of the Chief judicial Magistrate, Bhagalpur. On the next. day, the learned Migistsate examined the complainant on solemn affirmation and directed Shri S. Ram, Executive Magistrate, Bhagalpur, to investigate into the allegations. Shri S. Ram, Executive Magistrate, recorded the statement of some witness is produced by the complainant and submitted a report. The learned Chief Judicial Magistate, on 17th June, 1976, disagreeing with the said report, took cognizance of the offences under sections 147, 148, 179 and 127. Indian Penal Code, against the petitioners and transferred the case to the file of Shri H. P. Yadavendu, Judicial Magistrate, 1st Class, for disposal.

(3.) It has been submitted on before of the petitiner that the Chief Judicial Magistrate could not, direct, at invvegation to be made by an Executive Magistrate under section 202 of the new Code, Reliance in this connection was placed on a decision of this Court in Umakant Dubey v. Bhunnu Bhuiyan, (1976 BBCI 388) as also on two unreparted decisions in Jodhi Pandey v. Mahendra Mohan andey. (Cr. Misc. no. 741 of 1978) and Sofi Mian v. Must. Asia Khntoon, (Cr.misc. no. 4593 of 1978) decided on 2nd May, 1978 and 8th November, 1979 respectively. The two unreported decisions referred to above are by S. Shamsul Hasan, J., who himself has expressed a doubt about their correctness, In the order of reference, the learned Judge has stated that these two cases were decided by him under a complete misrepresentation of the decision reported to the case of Umakant Dubey (supra).