A magistrate cannot discharge an accused person after taking cognizance of the case on a police report, merely on the ground that the investigation was conducted by an unauthorized police officer.

C. B. BHARGAVA, J.

( 1 ) THIS is an application in revision by the state and arises under the following circumstances:

( 2 ) ON 23rd August, 1960, Station House Officer, Abu Road, apprehended the respondents while they were gaming at 3 public place, that is, in the verandah of the office of A. W. L. I. S. which is outside the railway platform. On 20th september, 1960, Station House Officer submitted a police report before the judicial Magistrate First Class, Abu Road. The learned Magistrate ordered the case to be registered and directed the party to bring witnesses on the date of hearing which was fixed on 22nd September, 1960. There appears to be a rubber stamp in the court of the learned Magistrate containing the aforesaid order and that rubber stamp was also affixed on the order sheet of this case, but the order is duly signed by the learned Magistrate. On the next date, that is, 22nd September, 1960, all the accused were present before him and the learned Magistrate, in compliance with the provisions of section 251-A Criminal Procedure Code, delivered copies of investigation papers to the accused and adjourned the case for hearing arguments with regard to the framing of cnarge. The accused were bound down to appear in his court on subsequent dates. For one reason or the other, arguments could not be heard and eventually the matter came up Tor hearing on 16th November, 1960. The learned Magistrate after hearing arguments on that date discharged the accused on these grounds (1) that the District Police was not authorised to investigate the case when the offence was committed within the jurisdiction of the railway police; and (2) that the charge sheet was not submitted to the Railway magistrate but to the First Class Judicial Magistrate. The State filed a revision before the Additional Sessions Judge, Sirohi, who by a very short order rejected the application on the ground that the place of occurrence lay within the jurisdiction of the Railway Police and so the District police officers had no jurisdiction to challan the case. Now, the State has come in revision to this Court.

( 3 ) IT is urged on behalf of the State that the order of discharge could have been passed only when the Magistrate considered the charge to be groundless. It is urged that the learned Magistrate had taken cognizance of the case and thereafter the accused could be discharged only under Section 251a (2) of the Criminal procedure Code on the aforesaid ground. It is further contended that in view of the provisions of Section 156 (2), Cr. P. C. , it was not open to the accused to question the investigation on the ground that it was done in contravention of Section 156 (1) of the Code of Criminal Procedure. It is urged that even if the offence was committed within the jurisdiction of the railway Police and investigation was made by the District Police, still the report submitted before the learned Magistrate disclosing facts which constituted an offence, was such on which the Magistrate was bound to take cognizance of the offence and could not throw out the case merely on the ground of the incompetency of the District Police to make investigation. On behalf of the respondents, it is urged that there was an irregularity with regard to investigation and the learned Magistrate could not be said to have acted megally if he directed the police to rectify the irregularity when it was brought to his notice at the initial stage, it is urged that no interference should be made with the order of the learned Magistrate which he was within his jurisdiction to pass. It is also urged that the Magistrate had not taken cognizance of the case because it does not appear that he applied his mind to the facts of the case with a view to take further proceedings in the matter.

( 4 ) IT may be observed that the Munsiff-Magistrate, before whom this charge sheet was submitted, is also a Judicial Magistrate for the Abu area and has jurisdiction to try cases pertaining to t