A Magistrate cannot take cognizance of an offence after referring the matter to enquiry under Section 202, Code of Criminal Procedure, without waiting for the submission of the report.

1. This application is directed against the ORDER :of the Sub-divisiona1 Magistrate taking cognizance of the offence under Section 354, Indian Penal Code, against the petitioners.

2. On the 15th of July, 1956, a complaint was filed by one Mt. Zohra before the Subdivisiona1 Magistrate on the allegation that the petitioners were putting earth on her bamboo clumps. She objected to it with the result that she was assaulted by petitioner no. 1 on the head with a khurpi. The other petitioners also assaulted her and made her naked.

3. The Sub-divisional Magistrate did not take cognizance of the offence initially but referred the matter to Shri G. D. Misra, Magistrate, first class, for making local enquiry and report within two months. The enquiry report was not submitted for about four months. On the 4th of April, 1968, the Sub-divisional Magistrate recalled the enquiry and took cognizance of the case.

4. The point urged on behalf of the petitioners by Mr. Keshri Kishore Saran is that the Sub-divisional. Magistrate having referred the matter to the enquiry of Shri G. D. Misra ought to have waited for submission of the report by him or referred the matter to some other Magistrate after recalling it from Shri Misra, but it was not open to the Sub-divisional Magistrate to take cognizance of the offence. The point urged by Counsel has got force and has to be accepted in view of the various decisions of this Court and the Supreme Court to some of which I will presently refer.

5. When a complaint is filed before a Magistrate three courses are open to him firstly, to dismiss the complaint or, secondly, to summon the accused persons or thirdly, to refer it for enquiry under Section 202, Code of Criminal Procedure. The very fact that initially the Magistrate did not summon the petitioners clearly indicates that he was not satisfied that a prima facie case had been made out in the petition of complaint which was solemnly affirmed before him. He was, therefore, fully justified in referring the matter to Shri Misra for enquiry and report under Section 202, Code of Criminal Procedure. But, once having referred the complaint to enquiry, it was not open to him to take cognizance unless further materials had been brought to his notice, which is not the case here. The object of the enquiry under Section 202, Code of Criminal Procedure, was laid down by their Lordships of the Supreme Court in (1) Chandra Deo Singh V. Prakash Chandra Bose alias Chabi Bose (A. I. R. 1963 Supreme Court 1430) in the following words. :

"No doubt, one of the objects behind the provisions of Section 202, Criminal Procedure Code is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view - to prevent a person named therein as accused from being called Upon to face an obviously frivolous complaint."

In (2) Bindeshwar V. Rambujhawan (I.L.R. 29 Patna 1059) their Lordships referred to an unreported decision of this Court in (3) Criminal Reference No. 106 of 1949 (decided on the 29th November, 1949) wherein it was held by Agarwala, C. J. that once a Magistrate refused to summon the accused until after the receipt of a judicial enquiry, it was not open to him to summon the accused before he was satisfied that it was a fit case in which the accused should be summoned. Their Lordships quoted with approval the following observation of Agarwala, C.J. :

"As this Court has pointed out on many occasions, when a Magistrate doubts the truth of the complainant and ORDER :s a judicial enquiry under Section 202, he should not proceed further with the case until that doubt has been removed by the receipt of a report by the officer who holds the judicial enquiry. If it is found that the original person appointed to hold the enquiry is unduly delaying the matter, the enquiry should be entrusted to some one else, but in no case should process be issued against the accused until a report has been received."

In (4) Md. Obais V. The State (1959 B.L.J.R. 6