( 1 ) THIS Revision Application is preferred by the petitioneroriginal accused against the order passed by the learned J. M. F. C. , Borsad dated 2-5-1983 on application Exh. 16 and 18 in Cri. Case No. 1985 of 1982. A complaint was filed by the respondent against the present petitioner for an offence punishable under Secs. 78 and 79 of the Trade and Merchandise Marks Act, 1958 in the Court of Judicial Magistrate, Borsad. On receiving this complaint, the learned Magistrate ordered to send this complaint for enquiry under Sec. 202 and sought the report from the police. The offence is alleged to have been committed by the petitioner under Secs. 78 and 79 of the Trade and Merchandise marks Act, 1958 alleging that the petitioner had used a new trade mark "jaswant chhap Special Telephone Bidi", which trade mark belonged to the complainant alone and it is registered under the Trade Mark Registry in the name of the complainant. The petitioner is also dealing in bidi business and he being the rival in the bidi business, the filing of this complaint was necessitated. The petitioner-accused submitted an application to the learned Magistrate Exh. 16 contending that the Court has no jurisdiction to send the complaint for enquiry under Sec. 202 without examining the complainant and his witnesses in support of the complaint.

( 2 ) IN the original complaint, the learned Magistrate passed an order on 10- 4-1981 which reads as under :"heard the learned Advocate Shri R. K. Shah for the complaint. This complaint is ordered to be sent in inquiry as per the provisions of Sec. 202 of the Code of Criminal Procedure to the P. S. I. Anklav. P. S. I. Anklav is directed to hold the inquiry of this complaint by himself and he is also directed to submit his report within ten days. He is also directed to seize the M. M. as stated in the complaint. "the preliminary objections taken by the petitioner in applications Exh. 16 and 18 has been overruled and on receiving the report of the police, the learned magistrate issued process against the petitioner-accused.

( 3 ) LEARNED Counsel Mrs. Ghosh for the petitioner challenged that said process and contended that the learned Magistrate has violated the mandatory provision of Sec. 202 (b) of the Criminal Procedure Code. Secretion 202 (b) reads as under :"any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Sec. 192, may, if he thinks fit, postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a Police officer or by such other person as the thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Provided that no such direction shall be made : (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 Sec. 200. "

( 4 ) LEARNED Counsel further submitted that the learned Magistrates order to make inquiry into the alleged offence under Sec. 202 (b) without examining the complainant is in violation of the provisions of Sec. 202 (b ). An inquiry required to be carried out by police under Sec. 202 is to be ordered after the complainant is examined. This complaint is filed by a private person, and therefore, it is obligatory for the Magistrate to learned Counsel relied on the judgment in the case of Deena Nath Acharya v. Daitari Charan Patra and Ors. , reported in 1975 cri. LJ 1931 wherein it is held that the Magistrate has jurisdiction to direct an investigation to be made by a Police Officer for the purpose of deciding whether or not there is sufficient ground for proceeding provided that no such direction for investigation shall be made unless the complainant and his witnesses present in Court have been examined on oath under Sec. 200. The exception is only where the complaint has been made by a Court. The learned Counsel