Judgment

Narasimham, C J

[1] This is a petition in revision to quash proceeding under Section 411 of the Indian Penal Code pending against the petitioners in the Court of a 1st class Magistrate of Boudh on the ground that the entire proceeding was initiated without jurisdiction.

[2] On 14-12-55 one Ramgopal Seth gave a written report at Manmunda police station in Boudh sub-division to the effect that some gold ornaments and cash were stolen from his house. The local police at first recorded merely a station-diary entry but on 16-12-55 they instituted a regular F. I. R. and took up the investigation of the case. After completing investigation a Final Report was submitted on 8-2-56 to the effect that though there was some suspicion against the petitioner Mahatair Prasad Agarwala the evidence was insufficient for submitting charge-sheet against him.

The Final Report appears to have been received in the Sub divisional Magistrate's office on 13-12-56 but there was some delay in its being put up before the Subdivisional Magistrate. On 18-2-56, however, the informant Ramgopal Seth filed a protest petition before the same Magistrate alleging that police had not investigated the case properly and requesting the Magistrate either to call for charge-sheet or direct a judical enquiry. On this protest petition a Magistrate in-charge (as the S. D M. was not in station) passed the following order

"To C. S. I. to put up with F. I. R. and case diary on 28-3-56 before the S. D. M."

On 28-3-56 all the papers including the case diary appear to have been placed before the Sub-divisional Magistrate who passed the following order:

"Seen the Final Report, case diary and the protest petition. The case is true under Section 457 / 380 I. P. C. Return the properties seized to the person from whom seized.

Sd/- Illegible S. D. M Boudh"

[3] On 12-4-56, however, the Subdivisions Magistrate passed the following order in the order-sheet:

"Heard the lawyer for the complainant Ramgopal Seith. Sri L.N. Ghose will hold an enquiry and submit a report by 15-5-56."

Sri L.N. Ghose held a regular enquiry, examined the informant Ramgopal Seth on solemn affirmation and four other witnesses cited by him and then submitted a report to the Subdivisional Magistrate dated 5-6-56 to the effect that there was prima facie evidence to prosecute the petitioner Mahabir Prasad Agarawala and his sister Lakshmi for an offence under Section 411 I. P. C. The Subdivisional Magistrate then passed the following order on 6-6-56:

"Seen the report of Judicial enquiry. There is a prima facie case against Mahabir Prasad Agarawala and Mst. Lakshmi. The I. O. is directed to submit charge-sheet under Section 411 I. P. C. against Mahabir Prasad Agrawala and Mst. Lakshmi by 21-6-56."

On carefully examining the original of the order-sheet I find that the Subdivisional Magistrate first wrote.

"Cognizance taken against them under Section 411 . P- C. Issue bailable warrant Hinder section".

Then he scored out these words and wrote out

The I. O is directed to submit charge-sheet under Section 411 I. P. C. ........ ."

The case was then transferred to the file of one T. Misra, 1st class Magistrate, for trial.

[4] On behalf of the petitioners Mr. R.K. Das urged that the entire proceeding was without jurisdiction on account of the following illegalities committed by the Subdivisional Magistrate, Boudh:

(i) After having accepted the Final Report of the police on 28-3-56 the Sub-divisional Magistrate had no jurisdiction to revise his order and call for charge-sheet on 6-6-56;

(

ii) The protest petition of the informant dated 18-2-56 should have been treated as a regular complaint and the complainant should have been examined on S. A. as required by Section 200 of the Criminal Procedure Code. The omission of the Subdivisional Magistrate to so examine him was an illegality in consequence of which the subsequent judicial enquiry under Section 202 Cr. P. C. made by Sri L.N. Ghose under the orders of the Subdivisional Magi