B.K. Behera, J.
1. On July 10, 1981, a petition of complaint was made in the Court of the learned Subdivisional Judicial Magistrate, Baripada, by the opposite party No. 1, as the complainant, against the petitioner, the opposite party No. 2 and Smt. Ginidevi Saha for commission of offences punishable under Sections 241, 366 and 498 of the Indian Penal Code. The learned Subdivisional Judicial Magistrate recorded the initial statement of the opposite party No. 1 and fixed August 11, 1981 as the date of inquiry under Section 202 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), to be referred to hereinafter as the Code, with a direction to the opposite party No. 1 to produce all his witnesses, On the date fixed for inquiry, the learned Subdivisional Judicial Magistrate made a direction to send copies of the complaint and the initial statement of the opposite party No. 1 to the court of Mr G. P. Rao, Judicial Magistrate, First Class, to hold the inquiry under Section 202 of the Code and submit his report. On October 24, 1981, the learned Subdivisional Judicial Magistrate, on the basis of the report of inquiry of the Judicial Magistrate, dismissed the complaint against the accused Smt. Ginidevi Saha, took cognisance of the offences punishable under Sections 341. 356 and 498 of the Indian Penal Code against the petitioner and the opposite party No. 2 and issued processes against him. By making an application under Section 482 of the Code, the petitioner assails the order taking cognisance and the order directing issue of processes against the petitioner and the opposite party No. 2 as being illegal and invalid in law and invokes the inherent jurisdiction of this Court to quash the criminal proceeding.
2. Inviting my attention to the provision contained in Section 202 of the Code and the principles laid down by two Division Benches of the Patna High Court in I. L. R. LVII (1978) Patna 903 Jitan Tiwari v. The State of Bihar and Anr., and I, L. R. LVIII (1979) Patna 79 Shrimati Janki Devi v. The State of Bihar and Ors., and by a Division Bench of the Calcutta High Court in 1976 Criminal Law Journal 876 Asoke Chatterjee v. Sm. Manisha Mukherjee, to the effect that after coming into force of the Code., no direction for investigation can be issued to a Judicial Magistrate, it has been submitted by Mr. Panigrahi for the petitioner that the impugned order taking cognisance on the basis of a report of inquiry made bv a Judicial Magistrate is illegal and invalid. The opposite party No. 1 has not entered appearance in spite of service of notice personally on him.. Mr. Nayak, appearing on behalf of the opposite party No. 2, has supported the stand taken by the petitioner. No decision of the Supreme Court or of this Court has been cited at the Bar.
3. Section 202 of the Code provides : '202. Postponement of issue of process :-
(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance of which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and other 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 witneses on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusvely by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.(3) If an investigation under sub-section (1) is made by a person not being a police officer, he. shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.'
4. The questions for consideration are as to whether the inquiry could be entrusted to another Judicial Magistrate and as to whether the expression ''such other person' occurring in sub-section (1) of Section 202 of the Code to whom a direction can be issued for investigation includes a Judicial Magistrate.
5. In I. L. R. 1978 Patna 903 (Supra), it has been held that according to the scheme of Section 202 of the Code, if a Magistrate does not feel persuaded to issue process againest an acensed on receipt of the complaint and on complainant's examination on solemn affirmation and wants to remove his doubt as to whether there is sufficient ground for proceeding aginst the accused and dacides to hold an inquary into the matter and not to get it investigated, that inquary has got to be adopted by the said Magistrate and he cannot get it enquired into by any other Magistrate as he could under the old Code. Referance has been made in this reported case to an earlier decision of a learned Single Judge of the same High Court in the case of Umakant Dubey v. Bhunnu Bhuyan 1975 B. L. J. R. 388 and to the decision of a Division Bench of the Calcutta High Court in 1976 Cri. L. J. 876 (Supra). The same High Court has held in I. L. R. LVII (1979) Patna 79 (Supra) that aftar coming into force of the Code on and from the 1st April, an order under Section 202 cannot be passed entrusting a Judicial Magistrate to conduct an inquiry and such an inquiry report made by another Magistrate on the basis of an order passed by tha Subdvisional Judicial Magistrate would be invalid and the accused persons cannot be summoned on the basis thereof and as such, the order summoning the accused persons is illegal and against the provisions of the Code.
6. It would be useful to, go into the legislative history of this-new provision. Under the old Cold, a Magistrate other than a Magistrate of the third class could direct an inquiry or investigation to be made by any Magistrate subordinate to him or by a police officer or by such other person as he thought fit for the purpose of ascertaining the truth or falsehood of the complaint. In its Forty-First Report, the Law Commission of India suggested the following changes in the corresponding Section 202 of the Code:
'(1) The requirement of recording reasons for postponement of the summoning of the accused should be done away with as no real purpose can be served by any expression of opinion at that stage and the Magistrate find it difficult at that stage to record their reasons.
(2) The real purpose of enquiry under Section 202 being to ascertain whether the grounds exitst for proceeding further' which expression is used in Section 203, verbal alteration should be made in Section 202 so that language of Sec, 202 should correspond to the language of Section 203.
(3) As the evidence taken by a Subordinate Magistrate making inquiry is to be finally weighed by the Magistrate who sent the case for such inquiry the power to have an inquiry made by a Subordinate Magistrate should be deleted.
(4) Proposed abolition of commitment inquiries necessitates amendments in the procedure to be followed in an inquiry into complaint where the offence complained of is exclusively triable by the Court of Session. The Magistrate who takes cognizance of such offence on complaint must himself make an inquiry into the complaint and call upon the complainant to produce all his witnesses and examine them on oath.
In the instant case, this Court is concerned with the third suggestion made by the Law Commission. Section 202 of the Code authorised a Magistrate to have an inquiary made by a Magistrate subordinate to him. Such a course is not open to him under Section 202 of the present Code. The provision in the old Code to hold an inquiry by any Magistrate subordinate to the Magistrate making the direction has been omitted and the present section does not envisage any inquiry by a 'Magistrate' which exsression,as provided in Section 3 of the Code, would mean a Judicial Magistrate.
7. As now provided, an investigation can be made by a police officer or by such other person as the Magistrate directing, investigation thinks fit. The terra 'investigation' has been defined in Section 2(h) of the Code thus:
'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf:'
Thus investigation can be conducted either by a police officer or by any person other than a Magistrate who is authorised in that behalf.
Section 2(g) of the Code defies 'inquiry' and it reads:
'inguiry' means every inquiry, other than trial conducted under this Code by a Maggistrste or Court.'
The Legislature has deleted the word 'inquiry' in Section 202 which could previously be conducted by a subordinate Judicial Magistrate and has kept the word 'investigation' which can only be conducted by a police officer or by any person other than a Magistrate.
8. With the separation of the Judiciary from the Executive, the power to take cognizance has been assigned to a Magistrate. The reference to a Magistrate in Section 202 is to be construed as reference to Judicial Magistrate. On receipt of a complaint, if the Judicial Magistrate thinks fit to postpone the, issue of process, he may himself inquire into the complaint. If a case has been made over to him under Section 192, he may also inquire into the case himself. As provided in Section 202, the Magistrate may direct an investigation to be made Judicial Magistrate can be entrusted with an inquiry into a complaint under the direction of the Chief Judicial Magistrate, the Subdivional Judicial Magistrate or any other Judicial Magistrate who is empowered to take cognisance of the offence.
9. For the aforesaid reasons, I must hold that the impugned orders taking cognisance and directing the issue of processes to the accused persons on the basis of a report of inquiry by a Judicial Magistrate are illegal, having been passed in violation of Section 202 of the Code, I would, with respect, agree with the Honourable Judges of the Calcutta and Patna High Courts and adopt the views recorded in the reported cases, referred to above.
10. The inherent jurisdiction of this Court is to be exercised in rare and exceptional cases and in the interests of justice to prevent an abuse of the process of the Court. As the criminal proceeding against the petitioner and the opposite party No. 2 has not been st3rted in accordance with law in view of what has been recorded by me, it is necessary in the intersts of justice that the impugned orders taking cognisance and issuing processes against the petitioner and the oppo. site party No. 2 are quashed.
11. At the hearing, another illegality committed by the learned Subdivisional Judicial Magistrate has come to my notice. Initially, the petition of complaint had been made for commission of offences punishable under Sections 341, 396 and 468 of the Indian Penal Code. Of the three offences, the offence punishable under Section 366 is triable exclusively by the Court of Session. While directing the inquiry, it had not been recorded by the learned Magistrate that the offences complained of were not triable exclusively by the Court of Session. As provided in Section 202(2) of the Code, no investigation shall be ordered if it appears to the Magistrate that an offence complained of is triable exclusively by the Court of Session and the Magistrate shall have to call upon the complainant to produce all his witnesses and examine them on oath. Although the Magistrate inquiring into the matter had found that there was a prima facie case under Sections 341, 365 (not exclusively triable by the Court of Session) and 498 of the Indian Penal Code, initially an offence exclusively triable by the Court of Session had been complained of. It was, therefore, the duty of the learned Subdivisional Judicial Magistrate to call upon the complaint to produce all his witnesses and to examine them. This the learned Subdivisonal Judicial Magistrate did not do. This is yet another violation of the mandatory provision of law. In this connection. reference may be made to the cases of Gokulananda Mohanty and Ors. v. Muralidhar Mallik 47(1979) C.L.T. 244 and Guljar Hussain v. Krishna Loila and others 1983 Cuttack Law Reports (Criminal) 383. It was for the learned Subdivisional Judicial Magistrate to have taken up the inquiry himself and then find out as to whether any offence triable exclusively by the Court of Session complained of had been committed.
12. In the result, I would allow the application, set aside the impugned orders taking cognizance of the offences on the basis of a report of inquiry made by a Judicial Magistrate and directing issue of processes against the petitioner and the opposite party No. 2 and quash the criminal proceeding against them. The learned Subdivisional Judicial Magistrate may proceed in accordance with law.