A report submitted by the police after an investigation into a non-cognizable offence without obtaining an order of the Magistrate before hand under Section 155 (2) of the Criminal Procedure Code cannot be treated as a report after investigation within the meaning of Section 173 of the Code.

( 1 ) THIS rule was issued on the application of the petitioner for quashing a proceeding under Section 506 of the Indian Penal Code pending before the Police Magistrate, Alipore, and in the alternative for the direction that the case should be tried according to the procedure laid down in Section 252 and the subsequent sections of the Criminal Procedure Code.

( 2 ) THE facts of the case are briefly as follows: The police while investigating a cognizable case, namely, an offence under the Arms Act, became aware of a non-cognizable offence, namely, an offence of criminal intimidation, punishable under S, 506 or the Indian Penal Code committed or alleged to have been committed by the petitioner Tarapada Sarkar. The police investigated into that offence also without having obtained any order from a Magistrate for the investigation of the non-cognizable case. The police, after investigation, submitted a charge-sheet in the cognizable case under the Arms Act and submitted a report styled as complaint for the prosecution of the petitioner in respect of the non-cognizable offence, namely, criminal intimidation punishable under Section 506 of the Indian Penal Code. The learned Police Magistrate took cognizance of the offence under Section 506 of the Indian Penal Code on the report submitted by the Officer-in-Charge Tallygunge P. S. and after the appearance of the accused, he decided that the case had been started on a police report and, therefore, he could proceed to try the case under new procedure prescribed by Section 251a of the Criminal Procedure Code. In that view he directed that the copies of the report and the record of the evidence made by the police and other document mentioned in Sub-section (4) of Section 173 of the Code be furnished to the accused free of cost. This order was passed on 5-6-1957. On 19-6-1957, according to the order of the learned Magistrate, copies of police report and other necessary documents were supplied to the accused. On 18-7-1957, when the trial was to be taken up, an objection was taken on behalf of the accused as regards the procedure to be followed in the trial of the case; and the learned Magistrate heard arguments of both sides on the point on 26-7-1957 and then held that he had properly taken cognizance on the police report under the provisions of Section 190 (1) (b) of the Code, and that he could treat the report of the police as a report submitted by the Police after investigation within the meaning of Section 173 of the Code and, therefore, the trial should proceed under the new provisions of Section 251a of the Criminal Procedure Code.-

( 3 ) AFTER moving the Sessions Judge for making a reference the accused petitioner has obtained this rule from this Court, praying that the proceedings be quashed altogether as the learned Magistrate had taken cognizance of the case wrongly, and praying in the alternative that in any case it should be ordered that the case be tried in accordance with the old procedure contained in section 252 and subsequent sections of the Code.

( 4 ) MR. Ajit Kumar Dutt appearing on behalf of the petitioner has not pressed the first point, He has conceded that the learned Magistrate was right in his view that cognizance of the case was rightly taken on the report of the police under the provisions of Section 190 (1) (b) of the Criminal Procedure Code. In fact, after the amendment of the wording of Clause (b) of Section 190 (1), it has been held in numerous cases that a Magistrate is entitled to take cognizance eyen of a non-cognizable case upon a report in writing of the facts made by any police officer. Even in the case on which Mr. Dutt has relied in support of his contention on the second point regarding the correct procedure for the trial namely, Manik Chand v. The State, the law on the point was discussed at p. 108 (of Cal WN): (at pp. 333-334 of AIR) and other pages, and it was held that the established position of law was that since the amendment