Birendra Prasad Sinha, J.

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

2. On 21-3-1975 a complaint was filed by opposite party Bishua Mandal in the Court of the Chief Judicial Magistrate, Bhagaipur. On the next day, the learned Magistrate examined the complainant on solemn affirmation and directed Shri S. Ram, Execute Magistrate, Bhagalpur, to investigate into the allegations. Shri S. Rum, Executive Magistrate, recorded the statement of some witnesses produced by the complainant and submitted a report. The learned Chief Judicial Magistrate, on 17-6-1976, disagreeing with the said report, took cognizance of the offences under Sections 147, 148, 379 and 427, Indian Penal Code, against the petitioners and transferred the case to the file of Shri R.P. Yadavendu, Judicial Magistrate, 1st Class, for disposal.

3. It has been submitted on behalf of the petitioners that the Chief Judicial Magistrate could not direct an investigation to be made by an Executive Magistrate under Sec.202 of the new Code. Reliance in this connection was placed on a decision of this Court in Umakant Dubey V/s. Bhunnu Bhuiyan, 1975 0 BBCJ 388, as also on two unreported decisions in Jodhi Pandey V/s. Mahendra Mohan Pandey, Cri.Misc. No. 741 of 1978, and Safi Mian V/s. Most. Asia Khatoon, Cri.Misc. No. 4593 of 1978, decided on 2-5-1978 and 8-11-1979, 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 mis-representation of the decision reported in the case of Umakant Dubey (supra).

4. The facts of the case of Umakaut Dubey (supra) was as such. On the receipt of a complaint and after examining the complaint on solemn affirmation, the Sub-divisional Judicial Magistrate directed the police to investigate into the case and submit report. Later, the Sub-divisional Judicial Magistrate directed that the case be sent to Shri ,R. Chand, Judicial Magistrate, 1st Class, to hold an enquiry into the matter and submit a report. A report was received from Shri R. Chand and the Sub-divisional Judicial Magistrate passed an order directing issuance of a warrant of arrest. This order was challenged in this Court. It was in that context that it was observed that any Judicial Magistrate on receipt of the complaint of an offence, of which he was authorised to take cognizance, could enquire in the case himself or direct an investigation to be made by a police officer or by any other person: but he could not get it enquired into by any other Magistrate. In the case of Umakant Dubey (scpra) the question whether an Executive Magistrate could hold an investigation as contemplated under Sec.202 of the Code, did not come up for consideration at all. The facts of that case were also quite different in as much as a .Judicial Magistrate had been directed to hold an enquiry. In the two unreported decisions of this Court the orders were quashed on the basis that investigation could not be held by any Executive Magistrate under Sec.202 of the new Code. It has been stated in both the decisions that this point was decided in the case of Umakant Dubey (supra). This was obviously not correct.

5. Sec.202 of the new Code provides that any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Sec.192, may, if he thinks fit, postpone the issue of process against the accused, and 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 is sufficient ground