Nagendra Prasad Singh, J.

1. The petitioner in the Criminal Miscellaneous case (Cr. Misc.2948 of 1977) has filed the present application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to s the code} for quashing an order dated 31.7.1974 by which the learned Chief judicial Magistrate, Katihar has summoned the petitioner along with some other accused persons to stand trial for offences under sections 380 and 504 of the Indian Penal Code.

2. It appears that on 14.11.1973 a first information report was lodged by the complainant (opposite party no.2) against this petitioner and some others. The investigation proceeded on the basis of that first information report. However, before the final form could be submitted the complainant-opposite party filed a petition of complaint on 21.11.1973 making certain allegations against the police investigation, and making a prayer that the accused persons should be summoned and put on trial. On 27.11.1973 the final form under section 173 of the Code of Criminal Procedure, 1898 was submitted saying that the case was maliciously false ; as such, accused need not be sent up for trial. Learned Chief Judicial Magistrate on 31.7.1974 examined the complainant on solemn affirmation and then he passed the impugned order saying :

"the complainant (informant) is examined on oath. Perused the case diary and statement of the complainant on oath. The prima facie case under sections 380 and 504 I. P. C. appears to have been made put. Cognizance taken under section 504 and 389 I. P. C. The Case is transferred to Shri H. C. Mittal, Judicial Magistrate, 1st Class, katihar, for disposal. Summon the accused to appear on 25.8.74. "

The petitioners in Criminal Writ Jurisdiction Case No.207 of 1977, who had also been summoned by the aforesaid order, filed a revision application before the Sessions Judge, Purnea which was heard by the Additional Sessions judge, Purnea, who by his order dated 20.9.1976, dismissed the said revision application. The writ application has been filed against that order.

3. Learned counsel appearing for the petitioners in both the applications has first pressed the criminal miscellaneous application saying that the petitioner of that application has not moved ths Sessions Judge for exercise of his re visional power and came to this Court directly. As such I propose to examine the legality of he impugned order in the criminal miscellaneous application first.

4. The grievance of the petitioner against the impugned order dated 11-7- 1974 is that for the purpose of summoning him learned Chief Judicial "magistrate has also perused the statements recorded in the case diary which was extraneous for the purpose of forming opinion as to whether a prima Jade case has been made out against the accused persons. According to him, after the petition of complaint was entertained and the complainant was examined on solemn affirmation it was not open to the learned Chief Judicial Magistrate to look into the police papers.

5. In order to appreciate the above contention certain provisions of the Code have to be examined. Sec.190 of the Code prescribes that a magistrate may take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts (c) upon information received from any person other than a police officer or pon his own knowledge that such offence has been committed. Chapter XV of the Code contains provisions which are applicable only to cases where cognizance has been taken on basis of a petition of complaint. Sec.200 says that the Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any If after examining the complainant on solemn affirmation he s of the opinion that before issuance of process an enquiry or investigation be held under section 202 he may pass an order for the same. Thereafter, section 203, p