P. C. Borooah, B. N. Maitra

( 1 ) THE allegation is that the opposite party No. 2, Tarapada Sen Gupta filed a petition of complaint on the 19th March, 1976, before the S. D. J. M. , Arambagh. The allegation was that the petitioners held out hope to him that he would get a permit for a bus and they would purchase the same for him. On the faith of that representation, they handed over a sum of Rs. 15,000/- to the petitioners. Further the petitioner took various sums of money from many persons on the assurance of providing them with jobs. On that date, the learned Magistrate perused the petition of complaint, took cognizance and directed the O/c of the Khankul Police Station under S. 156 (3) of the Criminal Procedure Code to treat the petition of complaint as F. I. R. , to make an investigation and to submit a report by the 10th April, 1976. That order was not complied with. The police did not make any investigation on the plea that they had no jurisdiction because the incident had taken place beyond the jurisdiction of the Khankul Police Station. Then on the 23rd March, 1976, the opposite party filed another petition of complaint before the S. D. J. M. He took cognizance, examined witness and thereafter passed an order of commitment. Hence this revisional application by the petitioners.

( 2 ) IT has been contended on behalf of the petitioners that the learned Magistrate made a mistake in taking cognizance on the basis of the alleged 'naraji' petition dated 23. 3. 1976. Cognizance was already taken by him on the first petition of complaint dated 19. 3. 1976. Moreover, the proviso to S. 202 (2) of the Criminal Procedure Code was not compelled with because all the witnesses were not examined. It has, thus, been contended that the learned Magistrate's order is illegal and must be set aside.

( 3 ) IT has been urged on behalf of the opposite party that though the learned S. D. J. M. purported to take cognizance on the basis of the first petition of complaint dated the 19th March, 1976, an illegal order was passed according to the provisions of S. 156 (3) of the Criminal Procedure Code to make an investigation by the police. That petitioner died a natural death and the matter has become time barred. The present order of commitment was passed by the learned Magistrate on the footing of the second petition of complaint dated 23. 3. 1976. There is distinction between an order of investigation, according to the provisions of S. 156 (3) of the Criminal Procedure Code, passed at the pre-cognizance stage, and an order of investigation under S. 202 (1) of the Code. The case of D. Lakshmi Narayan v. V. Narayana in AIR 1976 SC 1672 has been cited. It has been submitted that since the learned Magistrate passed the order of commitment on the basis of the second petition of complaint, the petitioners can have no grievance.

( 4 ) THE learned Public Prosecutor has stated that he cannot support the second order passed by the learned S. D. J. M.

( 5 ) IT appears that on 19. 3. 1976, the first petition of complaint was filed. The learned Magistrate peruse the same, took cognizance and passed an order under S. 156 (3) of the Code directing the O/c of the Khanakul Police Station to make an investigation and submit a report.

( 6 ) IN the case of State of Assam v. Abdul Noor in AIR 1970 SC 1365 at page 1367. A. N. Ray, J, has stated that a Magistrate can ask for investigation by the Police in accordance with the provisions of S 156 (3) of the Criminal Procedure Code before he takes cognizance. The decision, in the case of D. Lakshmi Narayan v. V. Narayana, does not, in fact, support the opposite party's contention. It appears from the pages 1677 and 1678 of the Report that the power to order the police to investigate under S. 156 (3) of the Code is different from the power to direct investigation conferred by S. 202 (1) of the Code. The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage and the sec

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