The Magistrate taking cognizance of an offence on complaint is required to examine the complainant upon oath, and the transferee Magistrate has the power to issue process in a complaint case under Section 202 of the Code of Criminal Procedure, 1898.

Untwalia J.

This case was referred by a learned• single Judge of this Court for hearing and disposal by a Division Bench. That's how it has come before us. The facts which may be stated briefly are these. The opposite party filed a complaint petition against the petitioner on 17.11.70 in the court of the Magistrate, 1st Class, at Chapra, who had the power to take cognizance of cases on that date. On 18.11.70 the said Magistrate Shri R. Sharan took cognizance of the case for offences under Sections 420, 467 and 471 of the Penal Code. On that date he neither examined the complainant upon oath nor did he direct the issuance of any process, but simply transferred the case to the file of Shri S N. Jha, Munsif Magistrate 1st class, Chapra, for disposal. Shri Jha received the case on transfer on 20.11.70 and on the same day ORDER :ed issue of summons to the petitioner directing him to appear on 3.12.70. The transferee Magistrate also did not examine the complainant on oath. The petitioner filed the present application on 24.11.70 to get the proceeding or the ORDER :quashed. The facts to this extent are not in dispute. I need not state the facts stated by the opposite party in his complaint petition to make out his charge against the petitioner under the various provisions of the Penal Code, as, in view of the ORDER :which is ultimately going to be passed in this case it is not necessary to do so. The said facts are in dispute also.

2. Mr. Krishna Prakash Sinha, learned counsel for the petitioner, after submitting his main two points, also contended that no offence had been made out on the facts alleged in the complaint petition and, therefore, the criminal proceeding should be quashed. But in view of the fact that the case has to go back to the transferee Magistrate on remand, we did not proceed to examine those facts and find out for ourselves whether it was a case where the criminal proceeding could be quashed in exercise of the powers of this Court.

3. Learned counsel for the petitioner, however, on the undisputed facts relating to the procedure of this case so far adopted, submitted the following two points-

(i) That the court had no power to issue any process without examination of the complainant on oath.

(ii) That only the Magistrate taking cognizance of the offence could direct the issue of process, the transferee Magistrate could not do so.

4. In my considered JUDGMENT :, the first point urged on behalf of the petitioner is well founded and has got to succeed. But since the consequential direction has to be given to the court below and in that event a question will arise-to whom that direction should be given, so the second point also assumed importance and has got to be decided.

5. In Chapter XV of the Code of Criminal Procedure, 1898 hereinafter called the Code, the heading from where Section 190 starts is Conditions requisite for initiation of proceedings". Section 190 prescribes the mode of taking cognizance’s of offences by Magistrates. Any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate or any other Magistrate specially empowered in this behalf may take cognizance of any offence "(a) upon receiving a complaint of facts which constitute such offence".

It would be here noticed and it is settled by decisions also that the complaint need not necessarily be in writing although generally it is so. Clause (b) talks about taking of cognizance of any offence by the Magistrate "upon a report in writing of such facts made by any police officer". This report in writing by the police officer, which is commonly known as charge sheet, can be the basis of taking cognizance of any offence by the Magistrate. Then comes Section 192 under which the Sub-divisional Magistrate may transfer any case of which he has taken cognizance for enquiry or trial to any Magistrate subordinate• to him. Section 192 does not say that the ORDER :of transfer can be made after an ORDER :for issuing process has been made. The ORDER :