The interpretation of S. 202, Criminal P.C. in the context of a transferred case and the requirement of postponement of the issue of process as a necessary preliminary to an inquiry under S. 202.

Gruer, J—The Additional Sessions Judge, Nagpur, acting under S. 436, Criminal P.C., has set aside the dismissal of a complaint under S. 203, Criminal P.C., and remanded the case for further inquiry. The case, which is a complaint one under S. 323 and other Sections of the Penal Code, was started in the Court of an Honorary Magistrate, First Class, Digras; on 6th September 1937, it was transferred to the Tahsildar and Magistrate, First Class, Katol, by the Additional District Magistrate, Nagpur. The first Magistrate had examined the complainant and had summoned the accused persons, who were present in his Court on 12th June 1937. The second Magistrate re-examined the complainant, and then directed a preliminary inquiry. The accused had not appeared in his Court and no process was issued against them. The question is whether in these circumstances it was open to the second Court to order inquiry under Sec. 202, Criminal P.C. The transfer was not made under S. 192, Criminal P.C., as the Additional District Magistrate did not himself take cognizance of the case: he in fact acted under S. 528, Criminal P.C. Now S. 202 can be applied by a Magistrate in two cases: first, on receipt of a complaint of an offence of which he authorized to take cognizance; and second, on receipt of a complaint of an offence which has been transferred to him under S. 192, Criminal P.C. For the present applicants, it is urged that the first clause is very wide, and when the case came to the second Magistrate on transfer he received it as a complaint of an offence of which he was authorized to take oognizance. It is urged that if the Section were otherwise interpreted, it would preclude the possibility of preliminary inquiry when a case was transferred by the High Court under S. 526, Criminal P.C., even before any action at all had been taken in the first Court. It is also said that in any case, there will be no prejudice to the complainant if a preliminary inquiry were ordered in such cases also. But, in the present case, the preliminary inquiry has been followed by dismissal, whereas under the procedure now ordered the complainant might possibly succeed: the complainant therefore might be prejudiced if the action of the second Court although illegal were still upheld.

2. The Additional Sessions Judge takes the view that 1st part of S. 202, Criminal P.C., cannot apply to a transfer, and 2nd part deals only with a transfer under S. 192 and therefore excludes the case of a transfer under S. 528, Criminal P.C. It is to be noted that all this part of the Section was amended in 1923 as the result apparently of the rulings to the effect that a Magistrate to whom a case had been transferred for disposal had no jurisdiction to direct an inquiry or investigation under this Section: Mohamad Jmamuddin v. Debendra Nath,1915 18 CalWN 95 and Ram Barai v. Ram Pratap,1920 7 AIR(Pat) 563. If 1st part of S. 202 were to include all cases of transfer then 2nd part would be redundant. Clearly, 1st part applies only to cases in which the Magistrate has taken cognizance himself. Although it is not proper to rely on Select Committees' Reports for interpretation of a statute, I may just note that the Select Committee of 1916 said that the words ''transferred to him under S. 192'' were inserted to cover cases which have been transferred to a Magistrate under S. 192 as well as cases of which he has taken cognizance himself.

3. Section 192 is specially mentioned. We must conclude that the other kind of transfer under S. 528 does not come within the ambit of S. 202. This is on the principle of expressio unius est exclusio alterius. It may be urged that there is no apparent reason for distinguishing between two kinds of transfers and allowing preliminary inquiry in the case of one only. But where the language is clear it is not for a Court to probe into the mind of the legislator or to indulge in surmises such that the case of a transfer under S. 528 was overlooked when the Secti