M. SADASIVAYYA, J.

( 1 ) BY his order dated 16. 10. 1967 made in Criminal Case No. 6144 of 1966 on the file of his court, the Special First Class Magistrate, Kolar Gold Fields decided that the procedure which had to be adopted for the trial of the accused (the present petitioner), was that prescribed in section 251-A of the Code of Criminal Procedure. It is the correctness of that order that has been challenged in this criminal revision petition which has been filed by the said accused.

( 2 ) I have heard Sri A. C. Nanjappa, the learned counsel for the petitioner and Sri Rego, the learned Counsel appearing for the State Public Prosecutor.

( 3 ) THE alleged offence for which the accused was being tried before the learned Magistrate, was one punishable under Section 420 of the I. P. C. It was one in regard to which the procedure prescribed by the Code of Criminal Procedure in respect of the trial of Warrant cases had to be followed. Section 251 of the Cr. P. C. states that the Magistrate shall - (a) in any case instituted in a police report, follow the procedure specified in Section 251-A; and (b) in any other case follow the procedure specified in the other provisions of that Chapter, (Chapter XXI ). As to whether the procedure to be adopted was the one set out in Section 251-A, depended upon as to whether the case had been instituted on a police report. The view taken by the learned Magistrate, is, that the case is one instituted on a police report. The relevant facts which influenced the learned magistrate, to take this view, briefly stated, are as follows:

The complaint petition had been presented before one of the predecessors of the Magistrate that has passed the order now under revision. That predecessor, after receiving the said complaint, examined the complainant on oath and made an order to the effect that the facts of the complaint clearly showed that there is a dispute between the parties of a civil nature, and hence no action could be taken on the complaint and it was therefore, dismissed. That order was made on 4. 11. 1965. The complainant then preferred a revision to the Sessions Judge, Kolar. That criminal Revision Petition (12 of 1965) was allowed by the Sessions Judge and the order of dismissal which had been made by the Magistrate was set aside. The case was remanded to the magistrate for being disposed of in accordance with law. After the case has been so remanded by the Sessions Judge, an application was made by the complainant, to the Magistrate, requesting that the case be referred to the police for investigation and report. In compliance with the request of the complainant, the Magistrate directed the police to make an investigation and to submit a report. In consequence of the investigation made by them, the police then submitted a charge sheet. It is on the basis of these facts, that the Magistrate has taken the view that this is a case instituted on a police report.

( 4 ) THE learned Magistrate has stated as follows in the course of his order: the complainant has not been examined on oath under Section 200 of Cr. P. C. and therefore it goes without saying that no offence was taken cognizance of by predecessor before sending the complaint to the police under Section 156 (3) Cr. P. C. As such the complaint was not sent to the police under Section 202 Cr. P. C. and it was sent only under Section 156 (3) of Cr. P. C. Therefore the report submitted by the police is a report under Section 173 Cr. P. C. , and it cannot be treated as the one filed under Section 202 Cr. P. C. As such the procedure that was adopted under Section 251a of Cr. P. C. was perfectly all right. "obviously, the learned Magistrate was referring to the order made by the immediate predecessor, directing the Police to make an investigation and submit a report under Section 156 (3) of the Cr. P. C. But, what he has forgotten is, that before his immediate predecessor directed the police as stated above, to make an investigation and submit

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