A Magistrate has the power to order an investigation under Section 156(3) of the CrPC before taking cognizance of the offense. The Magistrate is not bound by the conclusion of the police in their report and can proceed to examine the complainant and his witnesses under Section 200 of the CrPC. However, the Magistrate is not required to examine the complainant and his witnesses before discharging the accused persons if the Magistrate accepts the police report and drops action.

( 1 ) THIS Rule is directed against the order dated August 29, 1980 passed by the learned Chief Metropolitan Magistrate, Calcutta in Case No. C/1918 of 1980 under sections 380/341/504/506 I. P. C. discharging the accused opposite parties Nos. 1 to 3.

( 2 ) THE complainant petitioner filed a petition on 23-7-1980 before the learned Chief Metropolitan Magistrate, Calcutta alleging that since 1977 the petitioner was running a betel shop at 29/1a, Chandni Chowk Street, Calcutta and took the said shop by executing a deed of agreement along with his brother-in-law S. A. Wahid on November 25, 1979 and the said Wahid had taken the shop from Md. Osman. The petitioner and his younger brother had been running the shop and had the licence in petitioner's name. The petitioner left for Patna to appear before the Bihar Public Service Commission and his younger brother was looking after the business. On 3-5-1980 the petitioner's younger brother also went to Patna for his treatment and he kept the key of the shop with the servant Sharfu. In the meantime the accused opposite party No. 1 snatched away the key from the possession of the servant. The petitioner returned on 18-6-1980 and he came to know of the fact. The accused persons refused to hand over the key to the petitioner in spite of demand. The accused persons abused the petitioner in filthy language and threatened him with dire consequences if any attempt was made to open the shop. The petitioner filed a written complaint against the accused persons and lodged a general diary at the thana on 19-6-1980. On 20-6-1980 the petitioner complained before the Assistant Commissioner, Central Division and on his direction K. D. Tewari and Ramchandra Singh went to the spot but no action was taken against the accused. The petitioner made several attempts, but when no legal action was taken against the accused persons the petitioner went to the Police Commissioner, Calcutta and lodged a written complaint. The petitioner also prayed that the learned Magistrate would be pleased to direct the Deputy Commissioner, Detective Department, Lal Bazar to take cognizance under Section 156 (3) of the Code of Criminal Procedure (hereinafter referred to as the Code ).

( 3 ) ON receipt of the complaint, the learned Magistrate perused the same and sent the petition to the Deputy Commissioner, Detective Department for causing investigation to he made under Section 156 (3) of the Code fixing 10-9-1980 for report. In the meantime on 4-8-1980 the accused opposite parties Nos. 1 and 2 made a prayer before the learned Chief Judge, City Sessions Court, Calcutta for anticipatory bail under Section 438 of the Code in the event of their arrest in connection with Case No. C/1918/80.

( 4 ) THE learned Chief Judge by the order dated 4-8-1980 granted them bail on certain conditions. The opposite parties Nos. 1 and 2 surrendered before the learned Chief Metropolitan Magistrate on 18-8-80. The learned Magistrate by order dated 18-8-1980 called for the F. I. R. fixing 29-8-1980. On 18-8-1980 opposite party No. 2 also filed an application before the learned Magistrate for relaxation of the condition of the bail bond as he was going to Haj Pilgrimage from 4-9-1980. The learned Magistrate fixed the application for hearing on 29-8-1980. On that date a report was received from the Investigating Officer with the original petition of complaint. In the report the Investigating Officer stated that the petitioner failed to produce any document showing his bona fide possession of the shop room in his favour nor could he produce any witness. The Investigating Officer further stated that the opposite party No. 1 was a direct tenant under the landlady in respect of the hotel and the shop room. In the further report it was stated that a suit being Suit No. 1283 of 1980 was pending before the City Civil Court, Calcutta against the petitioner and others over the right of the shop in question. The learned Magistrate recorded that