D. P. SENGUPTA, J.

( 1 ) -INSPITE of service none appears for the opposite parties. Affidavit of service may be kept with record. The matter is taken up for hearing.

( 2 ) THIS revisional application is for quashing of a proceeding being C. R. Case No. 177 of 1994 pending in the court of the learned sub-Divisional Judicial Magistrate, Kalna, Burdwan.

( 3 ) THE Opposite party No. 1 filed a petition of complaint in the court of the learned Sub-Divisional Judicial Magistrate, Kalna alleging commission of an offence under section 406/420 of the Indian Penal Code. In the petition of complaint it was alleged that the opposite Party No. 1 took a loan of Rs. 6000/- on 28. 6. 1991 from the Bank of India, Dhatrigram Branch by mortgaging a gold ornament weighing about 0. 38 grams. It was alleged that the Opposite Party No. 1 paid Rs. 8,328/- in full payment of the said loan with interest on 10. 6. 94. But the Bank authority refused to return the mortgaged gold ornament.

( 4 ) ON receipt of the said complaint the learned Magistrate by his order dated 8. 9. 94 took cognizance of the offence and directed the Officer-in-Charge, Kalna police station to make an enquiry under section 202 of the Code of Criminal Procedure and submit a report. Pursuant to such direction one Assistant sub-Inspector of Police, Kalna police station made an enquiry and submitted a report under section 202 of the Code of Criminal Procedure. The said report was forwarded to the learned Magistrate by the Officer-in-Charge of Kalna police station.

( 5 ) MR. Pradip Ghosh, learned Advocate appearing for the petitioners submits that the order dated 8. 9. 94 is illegal and without jurisdiction in as much as the learned Magistrate directed an enquiry under section 202 (1) Cr. PC by the Officer-in-Charge of Kalna P. S. without examining the complainant and his witnesses present in utter violation of the mandatory provision of proviso (b) to sub-section (1) of section 202 of the Code of Criminal Procedure. Mr. Ghosh further submits that the report submitted by the police is also illegal and unauthorised as the said report was submitted on the basis of an enquiry made by an Assistant sub-Inspector of Police who was not authorised by the learned Magistrate for holding such enquiry. Mr. Ghosh relies on a judgment reported in 1998 (3) Crimes-page 143, in which it was held by learned single Judge of this court that the person directed by the learned Magistrate to hold an enquiry under section 202 (1) Cr. PC can not delegate his function to some other person and the person so delegated acquires no jurisdiction to investigate.

( 6 ) I have carefully gone through the entire order sheet of the court below and I am of the opinion that the initial order dated 8. 9. 94 taking cognizance of the offence and directing an enquiry under section 202 Cr. PC, suffers from serious illegality. Proviso (b) to section 202 (1) Cr. PC runs as follows:-"postponement of issue of process- (i) 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 section 192 may, if he thinks fit, postpone the issue of process against the accused, and either inquire 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 for proceeding; provided that no such direction for investigation shall be made. (a)where it appears to the Magistrate that the offence complained of is triable exclusively by the court of session; or (b)where the complaint has not been made by a court unless the complainant and the witnesses present (if any) have been examined on oath under section 200. "from a reading of the aforesaid section it becomes evident that unless the complainant and the witnesses present are duly examined an enquiry and report under section 202 (1) can not be called for and if it is done the same would be

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