A Magistrate has no jurisdiction to direct an investigation under Section 202, Cr.P.C., without examining the complainant and his witnesses present in Court, as required by proviso (b) to Section 202(1), Cr.P.C.

JUDGEMENT

G. K. Misra, C.J. :- Facts may be stated in short. The petitioner is an Assistant Settlement Officer and was in charge of the Baripada Town Settlement Camp on the date of occurrence. The accused were working as Amin, Inspector, Draftsman etc. in the same Settlement Camp on purely contract basis. Some days prior to the date of occurrence opposite parties were agitating for service benefits and resorted to strike. On 5-3-1974 the petitioner was not able to deposit undisbursed money as it was late after his attending to a staff meeting. He carried with him Government money amounting to Rs. 881.50 p. with challans and other papers in a bag to deposit the same next day. While he was coming from the office on a cycle the accused came from behind, caught hold of and assaulted him. They took away the cash and threw away the papers kept in the bag. The petitioner was rescued after the intervention of the police. When he came to his sense he found that the bag was lying on the ground and the money was missing. F.I.R. was lodged on the spot. After registering the case under Sections 379 and 147, I.P.C. the police started investigation. Finally charge-sheet was submitted only against three out of twelve accused under Sections 323 341 and 504/34, I.P.C. The petitioner filed a protest petition as no charge-sheet was submitted against nine of the accused persons and as the investigation under Sections 147 and 379, I.P.C. had been dropped. A complaint was made against the inaction of the investigating officer. The petition was rejected by the Sub-divisional Judicial Magistrate, Baripada, on 4-9-1974. A revision application before the Sessions Judge is pending.

On 6-9-1974 the petitioner instituted a regular complaint case (I.C.C. Case No. 78 of 1974) against the opposite parties under Ss.147, 379, 341, 323 and 504 read with Section 34, I.P.C. before the Sub-divisional Judicial Magistrate, Baripada. Therein he made serious allegations against the investigating officer. On 9-9-1974 initial statement of the petitioner was recorded but three witnesses on his behalf present in Court were not examined and the case was posted to 19-10-1974. On that day the Magistrate did not examine the other three witnesses who were present in Court but directed investigation under Section 202, Cri. P.C. by police. As the order of the Magistrate was contrary to proviso (b) to Section 202(1), Cri. P.C. 1973 (hereinafter to be referred to as the new Code) Criminal Revision No. 30-M of 1974 was filed before the learned Sessions Judge who rejected the same as the impugned order was interlocutory. This application has been filed against the order of the Magistrate dated 19-10-1974.

2. Mr. Mohanty for the petitioner contended that the impugned order is without jurisdiction as it is contrary to proviso (b) to Section 202(1), Cri. P.C.

Mr. M.N. Das, on the other hand, contends that a second criminal revision at the instance of the petitioner does not lie.

Both the contentions require careful examination.

3. Section 202 runs thus :

"202. (1) 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 Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or 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 has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :

Provided that if it appears to th