Sub-sections (2) and (3) of Section 210 CrPC are not independent provisions and must be read in the context of Sub-section (1), which requires the Magistrate to stay proceedings and call for a report from the police if an investigation is ongoing.

1. - In this petition, the petitioner has challenged the order dated March, 27, 1986 of the Additional Sessions Judge No. 1, Bharatpur passed in criminal revision. In the aforesaid order, the learned Addition?! District Judge, Bharatpur dismissed the revision petition preferred before him against the order of the Additional Munsif cum Judicial Magistrate No. 1, Bharatpur dated January 21st, 1986 under which he had taken cognizance for offence under Section 302/34 Indian Penal Code against the accused petitioner.

2. The main ground on which the order taking cognizanee of offence has been challenged is that it is contravention of Section 210 Criminal Procedure Code. To appreciate the rival contentions it is necessary to state the facts which are no longer in dispute.

3. In the night intervening 24th-25th of June, 1985 in the house of Biri Singh, his wife Budhdevi was murdered. A report was lodged by Biri Singh in the police station in which he is said to have admitted his guilt. After investigation a report under Section 173 Cr.PC was filed by SHO in the court of learned Additional Judicial Magistrate No. 1 on 19th July 1985. The learned Magistrate after taking cognizance of the offence under Section 302 against Beersingh committed the case to the Court of Sessions under his order dated August 1, 1985. After the case was committed as aforesaid a complaint was filed on August 8, 1985 by Chhitar against the 4 accused petitioners and Birisingh in the court of Additional Judicial Magistrate No. 1 under Section 302/34 IPC. The learned Magistrate recorded the statement of the witnesses and under its order dated 21st January, 1986 took cognizance of the offence under Section 302/34 Indian Penal Code against the accused petitioners. The said order was challenged in the revision petition before the Additional Sessions Judge No. 1 Bharatpur who under its order dated 28th March, 1983 dismissed the same.

4. The contention of the learned advocate for the petitioner is that the learned Magistrate could not have taken cognizance of the offence against the accused petitioners in view of Section 210 Criminal Procedure Code and the proper procedure to be adopted by him was to direct the SHO Police Station to further investigate the case. Section 210 Criminal Procedure Code may now be read. It reads as under:

(1). When in a case instituted otherwise than on a police report (here in after referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation;

(2). If a report is made by the Investigating Police Officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate he shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report;

(3). If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions.

5. Sub-section(2) and Sub-section(3) of Section 210 Criminal Procedure Code are not independent provisions and have to be read in the context of Sub-section(1) of Section 210 Criminal Procedure Code. The Magistrate as already stated earlier had taken cognizance against the accused petitioners and the accused had been committed to the Court of Sessions or August 1, 1985 and the complaint was filed only thereafter on August 8, 1985. Thus, Section 210 Criminal Procedure Code was not attracted to the facts of the case. The learned counsel for the petitioner has placed reliance on