( 1 ) IN this petition the order dated 6-8-1977 passed by the Addl. Chief judicial Magistrate, Dharwar, in PC. No. 9 of 1977 and the order dated 22-6-1977 in the Said case are challenged. ( 2 ) THE relevant facts are that the petitioner filed a complaint against respondents 1 to 4 alleging that they had committed offences under Secs. 406, 417, 418, 468 and 447 (A) read with' Sec. 34 of IPC before the Chief judicial Magistrate, Dharwar, on 31-3-1977. The Chief Judicial Magistrate directed investigation and report of the police under Sec. 156 (3) Cr. PC. On 18-4-1977 the Chief Judicial Magistrate made over the case to the Addl. Chief Judicial. Magistrate by recording in the order sheet as follows :"complainant: By Shri M. S. B. for Police report. Returned the complaint to the Dharwar Town Police for investigation and report by 95. This ease may be called before the Additional C. J. M. "thereafter the case was being called before the Addl. Chief Judicial magistrate. Till 23-7-1977 the Addl. Chief Judicial Magistrate was awaiting the report of the police, as per the order passed by the Chief Judicial magistrate on 31-3-77. On 23-7-77 the Add] Chief Judicial Magistrate issued a reminder to the concerned police calling upon them to report within 2 weeks. He received the report on 1-8-77. Thereafter he found that the police had submitted the report to the Pril Chief Judicial Magistrate on 22-6-77 and the Chief Judicial Magistrate had accepted the report submitted by the police on that very day. Therefore, on 6-8-1977 he recorded in the order theet as follows :"complainant by Shri M. S. B. Advocate. Investigation report received on 1-8-1977. Final report submitted by the P. S. I, is already eccepted by the Principal Civil Judge and C. J. M. on 22-6-1977. Hence the complaint st'ands dismissed. "it is under the aforementioned facts and circumstances that the petitioner has challenged both the orders, viz. , the order of the Additional chief Judicial Magistrate d| 6-8-1977 and the order of the Chief Judicial magistrate dated 22-6-1977. Hence the complaint st'ands dismissed. "it is under the aforementioned facts and circumstances that the petitioner has challenged both the orders, viz. , the order of the Additional chief Judicial Magistrate d| 6-8-1977 and the order of the Chief Judicial magistrate dated 22-6-1977. ( 3 ) SRI R. V. Jayaprakash,slearned advocate appearing on behals Of the petitioner, urged that the Chief Judicial Magistrate had no jurisdiction and power to deal with the case when he had made over the case to the additional Chief Judicial Magistrate and as such, the order dated 22-6-1977 is not a valid order sustainable in law. He also argued that the order dated 22-6-1977 passed by the Chief Judicial Magistrate is not sustainable as he does not appear to have applied his mind to the facts and circumstances of the case before him while accepting the summary prayed for by the police in their final report, ( 4 ) SRI K. H. N. Kuranga, learned advocate appearing on behalf of the State, contended, that whether the Chief Judicial Magistrate had or not the power to make over the case to the Addl. Chief Judicial Magistrate desponds on the instructions of the Sessions Judge to both of them in regard to the distribution of cases and as such, it cannot be -straightaway said that there being necessary material available, the Chief Judicial Magistrate had no power to make over the case to the Additional "chief Judicial magistrate arid as such, the order passed by the Chief Judicial Magistra that the case be called before the Additional Chief Judicial Magistrate, is a valid order. He further argued that the Chief Judicial Magistrate has withdroawn the ease from the Additional Chief Judicial Magistrate in exercise case of his power under Sec. 410 of the Code of Criminal Procedure and as such, he had jurisdiction and power to pass the impugned order. Lastly he aargued that there is no provision in the Criminal Procedure Code requiring the Magistrate to record reasons for accepting 'b' report and therefore, it cannot be said that the Chief Judicial Magistrate had not 'applied his mind before passing the order dated 22-6-1977. . Lastly he aargued that there is no provision in the Criminal Procedure Code requiring the Magistrate to record reasons for accepting 'b' report and therefore, it cannot be said that the Chief Judicial Magistrate had not 'applied his mind before passing the order dated 22-6-1977. . ( 5 ) SRI Kothavale, learned Advocate appearing on behalf of respondents 1 and 2, argued that the Chief Judicial Magistrate might have commifted an irregularity in making over the case to the Additional Chief judietal Magistrate, but that irregularity by itself does not vitiate the proceeding and therefore, the Chief Judicial Magistrate had not lost jurisdiction Mid power to deal with the case and as such, he was entitled to pass the order dated 22-6-1977. He further adopted the arguments of the learned advocate appearing on behalf of the State in regard to the order passed by the Chief Judicial Magistrate on merits. ( 6 ) SRI J. S. Gunjal, learned advocate appearing on behalf of respondents 3 and 4 adopted the arguments advanced by Sri Kuranga, learned advocate appearing on behalf of the State. ( 7 ) THE material on record does not make out whether the Sessions judge had given any instructions in regard to making over the case from the Chief Judicial Magistrate to the Addl. Chief Judicial Magistrate by mutual agreement. This is a matter between the Chief Judicial Magistrate and the Additional CJM. The Additional CJM is not a Magistrate, subordinate to the Chief Judicial Magistrate. There is no provision, in regard to making over a case, in the Criminal Procedure Code, as the additional Chief Judicial Magistrate is not subordinate to the Chief Judicial magistrate. Therefore, the distributaon. of work between them has to be arranged in accordance with the directions of the Sessions Judge Or the high Court. ( 8 ) IN the light of the view that is expressed in the preceding paragraph, the Chief Judicial Magistrate cannot withdraw the case made over by him to the Addl. Chief Judicial Magistrate by exercising his power under Sec. 410 (2) Crlpc. This part of the reasoning put forth by the learned counsel for the State cannot be accepted. That power can be exercised by the Chief Judicial Magistrate only when a case is made over by him on his own to a Magistrate subordinate to him. This is not one of such cases. This part of the reasoning put forth by the learned counsel for the State cannot be accepted. That power can be exercised by the Chief Judicial Magistrate only when a case is made over by him on his own to a Magistrate subordinate to him. This is not one of such cases. Therefore, it cannot be said that on 22-6-1977 the Chief Judicial magistrate withdrew the case from the file of the Addl. Chief Judicial magistrate. ( 9 ) IN view of the fact that the Chief Judicial Magistrate had divested himself of the power to deal with the case after making it over to the Addl- chief Judicial Magistrate, it was highly improper on the part of the Chief judicial Magistrate, to exercise his powers and pass the order dated 22-6-1977 accepting the 'b' Summarv report submitted by the police. Moreover, if, in fact, he had made over the case to the Addl. Chief Judicial magistrate in "accordance wiih the instructions of either the Sessions Judge or of this Court, he could-not have secured the power to deal with this case by any legal procedure. In that view also he had no power to pass the order dated 22-6-1977. Hence that order cannot stand. When that is so the order dated 6-8-1977 passed by the Addl. Chief Judicial Magistrate on the basis of the order dated 22-6-1977 passed by the Chief Judicial Magistrate cannot also stand. ( 10 ) EVEN if, the order dated 22-6-1977 passed by the Chief Judicial magistrate, is scrutinised on merits, I am clearly pf opinion that the said order has been passed by the Chief Judicial Magistrate without applying his mind to the facts and circumstances that were before him in the form of a complaint filed by the petitioner and the report along with" the case diary submitted by the police after investigation. The Magistrate has got to apply his mind to the facts before him while examining a case under sec. 196 of the Code of Criminal procedure. I am constrained to observe that the Chief Judicial Magistrate does not appear to have applied his "mind to the facts and material that were before him in this case, particularly in view of the simple reason that he did not even know about the order dated 18-4 1977 by which he had made over the case to the Addl. Chief Judicial magistrate. Chief Judicial magistrate. Therefore, this reasoning of Sri Jayaprakash, learned Advocate appearing for the petitioner, has to be upheld. In any view of the matter, the orders challenged in this revision petition cannot be sustained in law. ( 11 ) IN the result, this petition is allowed and the order dated 22-6-1977 passed by tha Chief Judicial Magistrate and the order dated 6-8-1977 passed by the Addl Chief Judicial Magistrate, Dharwar, in PC. No. 9 of 1977 are set aside the Addl. Chief Judicial Magistrate is directed to dispose of the case according to law bearing in mind the observations made in the bodv 6f the order concerning merits of the case and the order passed by the Chief judicial Magistrate on 22-6-1977. --- *** --- .TEXT OF JUDGMENT (April 17, 1978) 1978 (TLS)1012556 1978-Kantlj-2-329 LALAJIBAISHAH Vs. ASALCHAND HUKMISCHAND PORAWAL ( 1 ) THE order dated 19-7-1977 passed by the Sessions Judge, Bijapur, in crrp. No. 69 of the 1976, setting aside the order dated 18-11-76 passed by the Judicial Magistrate First Class, II Court, Bijapur in a private complaint No. 15 of 1976, dismissing the complaint under Sec. 203 Cr. PC. , 1973 (to be hereinafter referred to as the Code), is challenged in this revision petition. The petitioners are the persons mentioned as accused in the private complaint filed by respondent-1 before the Magistrate. Respondent-l alleged in his complaint that at about 2-00 p. m. , on 13-5-1976 the petitioners had committed theft Of 20 dogras of cotton, stored in his godown situated in Bijapur City limits. The Magistrate directed investigation under Sec. 156 (3) of the Code, and the police after investigating filed a report submitting that 'b' summary recommended by them may be accepted. Respondent-l complainant undertook to prove his allegations and as such the Magistrate took cognizance of offences under Sec. 379 and 380 IPC, examined the complainant and his servant Bhima Shankar, and looked into the account books produced by the complainant. There-after the Magistrate proceeded to consider whether process should be issued against the petitioners Or not and while so considering, concluded that theft of cotton dogras, as alleged by the complainant-respondent-1, had not taken place as the cotton dogras said to have been stolen were really of the ownership of the petitioners. On coming to this conclusion, he dismissed the complaint under Sec. 203 of the Code. Respondent-l complainant filed Cr. RP. On coming to this conclusion, he dismissed the complaint under Sec. 203 of the Code. Respondent-l complainant filed Cr. RP. NO. 69 of 1976 as against respondent-2-State only. He did not make the petitioners parties in the said revision petition. The learned Sessions Judge has, by his order challenged in this revision petition, reasoned that the Magistrate had acted illegally in taking into consideration the material collected by the Police while investigating into the case as per the directions of the Magistrate by virtue of Sec. 156 (3) of the Code. He has pointed out that while dismissing the complaint under Sec. 203 of the Code, the Magistrate was, in law, bound to take into consideration only the statements on oath of the complainant and his witnesses, and the result of the investigation or enquiry made under Sec. 202 of the Code, but not the result of the investigation made by the police by virtue of a direction under Sec. 156 (3) of the Code. He has purely on the basis of this reason, decided to set aside the order of dismissal of the complaint. While doing so, he has analysed the evidence of respondent-1 the complainant and his witness Bhima Shankter, as if he was exercising his appellate powers, and concluded that their evidence provides ample material to enable the Court to proceed with the case and issue process to the accused viz. , the petitioners to answer the charge for an offence punishable under Sec. 380 IPC and, therefore, dismissal of the complaint under Sec. 203 of the Code, was not proper. Having concluded so, he has ended his order by directing that the case is transferred to the court of the Chief Judicial Magistrate, Bijapur, for registering the complaint as a private case for ah offence or offences disclosed by the complainant and his witness in the light of the discussion made by him earlier, and then to dispose of the case according to law. Sri Raya Reddy, learned Advocate appearing on behalf of the petitioners, firstly argued that the Sessions Judge has ignored the provisions in the proviso to Sec. 398 of the Code. He pointed out that according to the proviso, the Sessions Judge was not right in making a direction against. the interests of the petitioners while the petitioners had not been made parties to the revision petition. He pointed out that according to the proviso, the Sessions Judge was not right in making a direction against. the interests of the petitioners while the petitioners had not been made parties to the revision petition. The proviso referred to above reads as follows :"provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. "this proviso applies in the case of persons who have been discharged. Sec. 398 of the Code lays down that while exercising revisional powers, the High Court or the Sessions Judge may set aside the order of dismissal of a complaint under Sec. 203 or sub-sec (4) of Sec. 204 of the Code, and direct further enquiry into the complaint, and also may set aside the order of discharge in regard to any person accused of an offence. Therefore, the proviso applies only to the case of a person discharged, and not to the case where the complaint has been dismissed under Sec. 203 of sub-sec (4) of Sec. 204 of the Code. Hence this argument of Sri Raya Reddy fails. Sec. 203 of the Code lays down that a Magistrate has power to dismiss a complaint after taking into consideration the statements on path if any of the complainant and his witnesses and the result of the enquiry or investigation if any under Sec. 202 of the Code. Such a dismissal can be made under Sec. 203 of the Code if, after considering the aforementioned material, a Magistrate is of opinion that there are no sufficient grounds for proceeding in the case. Therefore, the Sessions Judge is right in pointing out that the Magistrate ought not to have taken into consideration the material before him which was collected by the police while investigating into the case as per the directions of the Magistrate by virtue ot Section 156 (3) of the Code. Therefore, the Sessions Judge is right in pointing out that the Magistrate ought not to have taken into consideration the material before him which was collected by the police while investigating into the case as per the directions of the Magistrate by virtue ot Section 156 (3) of the Code. The learned Sessions Judge has not stopped at pointing out the illegality committed by the Magistrate, but has gone on to assess the evidence of the complainant-respondent-1 and his witness Bhima Shankar, as if he was exercising his appellate powers, and conclude that that material was sufficient to disclose an offence under Sec. 380 IPC, and to make a direction to issue process against the petitioners. The Sessions Judge had no power to do so while exercising his revisional jurisdiction under Sec. 397 and 398 of the Code. The power that he is empowered to exercise is only to direct further enquiry into the complaint. He cannot direct either the chief Judl Magistrate or any subordinate Magistrate, to take cognizance of an offence or offences or to examine any person or persons or to issue process against any person or persons. But the learned Sessions Judge has done exactly what he is not empowered to do. The only order that the learned Sessions Judge could have passed in this case was to set aside the order of dismissal of the complaint on the ground that the learned magistrate had taken into consideration material not envisaged by Sec. 203 of the Code, and direct further enquiry into the complaint of respondent-1, by the Magistrate, may be by the Chief Judicial Magistrate. The Chief judicial, Magistrate has all the liberty to decide whether he should take cognizance of the offence or offences or whether he should proceed on the material already collected viz, the evidence of the complainant and his witness Bhima Shankar, and issue process against the petitioners, or not to do so. Therefore, the order of the Sessions Judge is bad in law to that extent. In the result, this revision petition is allowed and the order passed by the learned Sessions Judge is modified to the following effect: the order dated 18-11-1976 passed by the Judicial Magistrate First class, II Court, Bijapur, in private complaint No. 15 of 1976 dismissing the complaint of respondent-1-the complainant, is set aside. In the result, this revision petition is allowed and the order passed by the learned Sessions Judge is modified to the following effect: the order dated 18-11-1976 passed by the Judicial Magistrate First class, II Court, Bijapur, in private complaint No. 15 of 1976 dismissing the complaint of respondent-1-the complainant, is set aside. The Chief judicial Magistrate is directed to hold a further esquiry into the complaint of respondent-1 and dispose of the complaint according to law. --- *** --- .