M. B. SHARMA, J.

( 1 ) THIS revision petition involves an interesting question of law as to whether in a complaint case if the Magistrate decides to post Pone the issues of process under section 202 (1) Cr. P. C. he can direct the investigation to be made by a police officer without first examining the complainant?

( 2 ) THE relevant facts for the disposal of the above enumerated point are these. Lokuram non- petitioner filed a complaint in the court of learned Munsif and Judicial Magistrate, Anupgarh on 14- 10-1981 against Ramnarain, the petitioner herein and 8 others in all number 109 nine under sections 494 and 494/109 I. P. C. The learned Magistrate did not examine the complainant under section 200 Cr. P. C. and thought it proper to postpone the issue of process till the investigation was made by the police officer. He, therefore, sent the case under section 702 (1) Cr. P. C. to the S. H. O. police station, Anupgarh. The report of the S. H. O. was received and on 22. 10. 1981 the learned Magistrate took cognizance of the offence against the accused person and others as stated earlier.

( 3 ) THE contention of the learned advocate Shri S. R. Arora for the accused petitioner is that the provisions of proviso (b) of sub section (1) of section 20 Cr. P. C. are mandatory and no direction for investigation by a police officer before postponing of issue of process could have been given by the learned Magistrate without first examining the complainant. To appreciate the contention of the learned advocate it is proper to extract sub-section (1) of section 202 Cr. P. C. which reads as under: 202 (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which bas been made over to him under sec. 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the Case himself of 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 bas not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under sec. 200

( 4 ) IT will be clear from the proviso (b) of sub-section (1) of section 202 Cr. P. C. that no direction for investigation shall be made 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. It Can, therefore, be said that in the instant case without examining the complainant on oath the learned Magistrate postponed the issue of process and directed investigation by a police Officer and it was done against the mandate of the legislature contained in proviso (b) of sub-section (1) of section 202 Cr P. C. In Deena Nath v. Daitari Charan it has been held that under section 20 1 (1) (b) the Magistrate has no jurisdiction to direct investigation without examining the witnesses. In P. N. S. Aiyar v. K. J. Nathan2 it has been held that under section 202 (1) before issue of process complainant must be examined on oath and omission to examine is not an irregularity, which is curable under section 537 of the Code of Criminal Procedure. 1898. The Magistrate without examining the complainant in that case has directed the police Officer to make an investigation and till then postponed the issue of process. After the receipt of the result of the investigation the Magistrate refused to issue process. In Yakub Sheikh v. The King3 It has been held that the Magistrate has no jurisdiction to take cognizance unless he examined the complainant under section 202 Cr. P. C. on oath. The failure to do so is fatal.

( 5 ) MR. Garg learned counsel for the complainant non-petitione