The powers of a Magistrate under Sec.159 of the Code of Criminal Procedure and the legality of investigation by a police officer below the rank of Deputy Superintendent of Police under Sec.5-A of the Prevention of Corruption Act.

1. These two applications in revision are by the same person and have been heard together. They have been referred by a learned Single Judge of this Court to a Division Bench, as some important questions of law arise therein.

2. The petitioner was a writer constable or an assistant sub-inspector of police attached to Gopalpur police-station within the district of Bhagalpur in October 1964. Two first informations were lodged against him on the 17th October 1964, through two written reports, one by Bothri Prasad Thakur and the other by Harihar Dass On the basis of the two first information reports, two cases were instituted at the police station under Sec.161 of the Penal Code and Section 5(2) of the Prevention of Corruption Act, allegations against him being those of bribery and criminal misconduct. Under the orders of the Deputy Superintendent of Police, Naugachia, the investigation in both the cases was taken up by an Inspector of Police. Copies of the first information reports were received by the Sub-Divisional Magistrate. On the same day, the petitioner appeared before the learned Magistrate through a lawyer and prayed for judicial enquiry in both the cases. On the 30th November 1964, the Magistrate, under the provisions of Rule 50 of the Bihar and Orissa Police-Manual, 1930, passed an order suspending the investigation by the police in both the cases and directing Mr. T.K. Mishra, a Deputy Magistrate, to hold an enquiry on the spot after giving intimation to the petitioner, the investigating officer concerned and the Superintendent of Police. The enquiring Magistrate was also directed to submit his import by the 12th January 1965; but, in the meantime, the police submitted charge-sheets in both the cases against the petitioner on the 18th December 1964. Thereafter, the petitioner made a petition on the 6th January 1965, before the Sub-Divisional Magistrate re-questing him not to take cognizance on the basis of the charge-sheets. In absence of the records which had been sent to the District Magistrate in connection with some matter, no order was passed by the Sub-divisional Magistrate on this petition. The records were received back by him on the 9th February, 1965, and the learned Magistrate considered the petition dated the 30th January 1965, which had been filed by the sub-inspector of police, Sadar Court, Bhagalpur, praying for transfer of both the cases for trial, as charge-sheets had already been filed, and also stating that the judicial enquiry ordered in the case was unnecessary. The learned Magistrate fixed the 16th February 1965 for hearing the parties on this petition, on which date he did hear the Senior District Prosecutor and the lawyer for the petitioner. The learned Magistrate, by his orders dated the 17th February 1965, directed the Public Prosecutor to give his opinion in the matter by the 23rd February. 1965; but, on that date, as the opinion was not received, he adjourned the case for orders to the 8th, March 1965 In the meantime, on the 6th March 1965, the Court sub-inspector requested the Subdivisional Magistrate to keep the judicial enquiry pending till the matter was decided by the Sessions Judge. This matter was put up for hearing on the 22nd March 1965 and the matter was adjourned to the 6th April 1965. On the 27th March 1965, two applications in revision were filed on behalf of the State before the Sessions Judge, Bhagalpur, who admitted both the applications and stayed further proceedings in the Court below. The applications were finally heard by the Second Additional Sessions Judge of Bhagalpur, who dismissed the" same by an order dated the 7th September 1966, but, being aggrieved by certain observations made by the learned Judge in that order, the petitioner has come up in revision to this Court.

3. The learned Judge held that the order of the Subdivisional Magistrate suspending the police investigation and directing a judicial enquiry was illegal and without jurisdiction. In regard to