A Magistrate is not bound to take cognizance of an offence merely because a petition of complaint is filed before him.

( 1 ) ON and February 1948, a petition of complaint was filed before the Chief Presidency Magistrate of Calcutta by one Haridas Mukherjee. On that petition of complaint, the learned Magistrate passed the following order:"to D. C. D. D. , for enquiry and report. If it is found that the Bank has ceased functioning, the enquiring officer to seize the books at once on the strength of a search warrant I should issue on his application. If the Bank is functioning he should apply to me for instructions. To 13/2. "on 9th February 1948, a report was received that the Bank had ceased functioning. On 10th February 1948, the learned Chief Presidency Magistrate ordered issue of a search warrant. A report from the police was received on 23rd March 1948. On 14th June 1948, the learned Chief Presidency Magistrate passed the following order: "heard learned Pleader. Let D. C. D. D. , take cognizance of this case at once, and seize the books of this Bank that are necessary. " Thereafter a challan was sent up by the police under Section 408, Penal Code, against Abani Kumar Banerjee. On 7th February 1949, the learned Chief Presidency Magistrate recorded the receipt of the challan under Section 408, Penal Code, and then transferred the case to Mr. C. C. Chakravartti for disposal.

( 2 ) THIS learned Magistrate came to the conclusion that the learned Chief Presidency Magistrate had acted illegally and that the accused Abani Kumar Banerjee was before him on the basis of illegal arrest, and accordingly ordered him to be set at liberty; and he fixed a date for the examination of the complainant, apparently under Section 200, Criminal P. C.

( 3 ) IT is against this order of the learned Presidency Magistrate Mr. C. C. Chakravarti, that the present Rule is directed.

( 4 ) THE real question for decision is whether the learned Magistrate is right in his view that when a petition of a complaint was filed before the Chief Magistrate, he was bound to take cognizance under Section 190 (1) (a), Criminal P. C. If he was so bound, he was certainly bound also to examine the complainant under Section 200, Criminal P. C. , and thereafter proceed in the ways indicated in subsequent Sections 202, 203 and 204 of the Code. If, however, he was not so bound, the action of the learned Chief Presidency Magistrate in sending the case to the police without himself examining the complainant under Section 200, Criminal P. C. , cannot be said to be illegal as he would be entitled to order investigation by the police, under Section 156 (3), Criminal P. C.

( 5 ) SEN J. in the case of Samaddar v. Sures Chandra 53 C. W. N. 270 : (A. I. R. (36) 1949 cal. 197) and in some other cases has taken the view that a Magistrate duly empowered to take cognizance is bound to take cognizance of the petition of complaint as soon as it is filed before him. The contrary view has been taken by several Division Benches of this Court of which mention need be made only of two recent decisions, viz. , decision of Roxburgh and Chakravartti JJ. in Robinul Hossain v. K. K. Ram, 82 C. L. J. 222 and the decision of Harries C. J. and Das J. in Pulin Behari Ghosh v. King, 53 C. W. N. 653. In these cases, the view has been clearly expressed that when a petition of complaint is filed before a Magistrate the Magistrate may take cognizance under Section 190 (1) (a), Criminal P. C. and proceed to examine the complaint under Section 200, and thereafter proceed according to the subsequent sections of the Code, or in the alternative, may not take cognizance and may instead send it to the police for investigation under the provisions of Section 156 (3), Criminal P. C. I feel bound to follow these decisions.

( 6 ) MR. Mukherjee has, however, tried to convince us that the view taken in these decisions mentioned above is wrong and that we should refer the matter to the Full Bench.

( 7 ) I have for myself no hesitation in feeling that there is nothing which would justify our referring the matter to the F