Judgment Gupta, J.-This is a reference made by the District Magistrate, Cehuru, who has recommended that the proceedings taken by the First Class Magistrate Rajgarh, being without jurisdiction be questioned by this

Court. The facts relevant for the present purpose are stated as below

2. On 14-1-1949 a report of theft was made to the Railway Police Rajgarh, who after making necessary enquiry, challaned one Naurang under Section 320, Penal Code, in the Court of the Additional District Magistrate, who transferred the case to the file of Tehsildar at Rajgarh. On 9-2-1949, as a result of further investigations while the Tehsildar was trying it, the case against Naurang was withdrawn. On 16-2-1949, the Police put up another challan based on the same report, against one Hanuman & his brother Rupa. It may be mentioned here that Hanuman had been produced as a prosecution witness in the challan against Naurang. This latter challan was not put up either before the Additional District Magistrate before whom the former challan was put up or before the Tehsildar who had taken cognizance of that challan, bat, it was put up before the Magistrate, First Class Rajgarh. On 123-1949, an application was presented to the trial Court on behalf of the accused raising two objections to the effect that the challan did not lie and that the Magistrate had no jurisdiction to take cognisance of the case. The Magistrate, however, paid no heed to these objections even though by one of them his very jurisdiction was challanged by the accused and they were pressed from time to time. It is alleged on behalf of the accused that the Court put off consideration of the objections by saying that they will be considered at the stage of framing of charge. It is not for the first time that this allegation is made in the appeal. Similar allegation appears to have been made before the Magistrate himself (vide application, dated 9-5-1949, by the Counsel for the accused). The proceedings were in spite of the objections continued and ultimately on 4-5-1949 the accused were charged with an offence under Section 379, Penal Code, without deciding the objections. Thereupon, another application, already referred to above, was made on behalf of the accused on 9-5-1949 and it has been very cursorily dismissed, as it appears from the order of the Court of that date. The course adopted by the Magistrate is, to say the least, highly undesirable. The accused thereupon went up in revision to the District Magistrate who has, as had already been stated, accepted the revision petition and made this reference.

3. Twoquestions have been raised in this reference. Firstly, it is said that the Police, having put up on a filial challan against Naurang, which they subsequently withdrew, had no power left in them to put up another fresh challan against the applicants on the same report. Secondly, it is said that the subsequent challan, if the Police could put up any, could be put up only before that Court which bad taken cognisance of the former challan on transfer or before the Court before which the first challan was originally put up.

4. It has been argued by the learned Counsel for the applicants that the power of the police in the matter of investigation of cognizable offence in respect of which information is given to the police are defined in the Code of Criminal Procedure, that when an investigation has been completed and a case sect up under Section 173 of the Code, the police has no power to resume investigation as is alleged to have been done in this case, that it is no case of the prosecution, that the case was incomplete when Naurang was challaned and was put up under Section 170, Criminal P. C., or that the accused in this case had been mentioned in the former challan as those who had not been challaned and that the entire proceedings beginning with the resumption of investigation by the police when the former case was pending before the Tehsldar, Rajgarh, and ending with the withdr

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