A Magistrate cannot direct a further enquiry by another Magistrate under Section 202 of the Code of Criminal Procedure, 1973.

P. C. Borooah, J. :- On December 23, 1974 Sm. Manisha Mukherjee, the Opposite Party in this Rule, filed a complaint before the Chief Metropolitan Magistrate, Calcutta, alleging commission of offences by the petitioner Asoke Chatterjee under Section 417 and 493 of the Indian Penal Code. The learned Magistrate examined the complainant and her mother Sm. Pratima Mukherjee but thought that further probe would be necessary and accordingly directed the Deputy Commissioner of Police, Central, to make a personal enquiry and submit a report. On January 27, 1975 the record was put up before Sri R.N. Kali, Metropolitan Magistrate, who was dealing with the file of the learned Chief Metropolitan Magistrate, Calcutta. The police had in the meantime submitted a report which did not support the complaint. The complainant then made an application for transfer of the case to some other Magistrate for favour of disposal. Sri Kali directed the records to be placed before the learned Chief Metropolitan Magistrate, Calcutta. On February 18, 1975 the records were put up before the learned Chief Metropolitan Magistrate who perused the police report and also the petition filed by the complainant. The learned Chief Metropolitan Magistrate thereafter on a consideration of the application allowed time to the complainant until February 21, 1975 to produce certain documents and the said date was also fixed for hearing. On February 21, 1975 the Chief Metropolitan Magistrate heard the complaint and directed the documents filed on her behalf to be kept on record and fixed March 1, 1975 for orders. On March 1, 1975 the learned Magistrate rejected the enquiry report filed by the police and directed Sri G.C. Dey, Metrapolitan Magistrate, 6th Court, Calcutta, to make an enquiry into the allegations of the complaint and submit a report. The learned Metropolitan Magistrate, 6th Court, Calcutta, held an enquiry and recorded evidence and submitted a report recommending issue of process against the petitioner under Sections 417 and 493 of the Indian Penal Code. The learned Chief Metropolitan Magistrate after considering the records and the report of the learned Magistrate, 6th Court, Calcutta, by his order dated April 19, 1975 ordered issue of process against the petitioner under Section 493 of the Indian Penal Code and on May 19, 1975 transferred the case to Sri R.N. Kali, Metropolitan Magistrate, 11th Court, Calcutta, for disposal.

2. On July 2, 1975 the petitioner filed an application before Sri Kali submitting, inter alia, that the issue of process was in violation of the provisions of Section 202 of the Code of Criminal Procedure, 1973 and the whole proceeding was as such illegal and prayed that the proceeding may be dropped. The learned Magistrate by his order dated July 21, 1975 rejected the contention of the petitioner and fixed August 7 and 8, 1975 for further evidence. The order passed by Sri R.N. Kali on July 21, 1975 has been impugned in this Rule.

3. It is the contention of Mr. Balai Chandra Ray, learned Advocate appearing on behalf of the petitioner, that the order passed by the learned Chief Metropolitan Magistrate, Calcutta, on March 1, 1975 directing a further enquiry by a learned Magistrate under Section 202 of the Code of Criminal Procedure, 1973 was without jurisdiction and has vitiated the issue of process based on such a report. Mr. Sudihir Gopal Poddar, learned Advocate appearing on behalf of the State, has supported Mr. Ray. Mr. Nalin Chandra Banerjee, learned Advocate appearing on behalf of the complainant opposite party, very fairly conceded that the order of the learned Chief Metropolitan Magistrate Calcutta, ordering an enquiry by a learned Magistrate cannot be supported in view of the language of Section 202 of the Code of Criminal Procedure, 1973.

4. Section 202(1) of the Code of Criminal Procedure, 1973 is in the following terms :-

"Any Magistrate, on receipt of a complaint of are offence of which he is authorised to take cognizanc