M. S. NESARGI, J. ( 1 ) THIS petition is directed against the order dated 3-9-1980 passed by the Judicial Magistrate First Class, Hangal, in private Complaint No. 38 of 1979. ( 2 ) THE few facts necessary may be narrated as follows : an incident took place on 30-4-1979 in which the petitioners were alleged to have assaulted the son of the respondent because of land dispute before the Land tribunal relating to land survey No. 17 of Hirekanshi Village. Hangal police registered Crime No. 49 of 1979 and commenced investigation. On 27-9-1979, the respondent filed the said private complaint against all the petitioners. Apart from other things he has narrated in his complaint that his son had expired subsequently because of the injuries sustained by him, but the concerned police appeared to have ignored that fact and, therefore, he was forced to file the complaint. ( 3 ) PERUSAL of the order in question passed by the Magistrate, particularly paragraph 8 onwards, clearly discloses. that the magistrate embarked on an enquiry after recording the sworn statement and summoned witnesses including a Doctor and then observed that the material placed before him was sufficient to take cognizance of the offence under S. 302 of the Indian Penal Code, but before doing so, he had to go into the question whether the cause of the death was as a result of the assault on the son of the respondent on 30-4-1979. Thereafter, he has proceeded to look into the material to determine that point and then decided to call for the report of the police submitted under S. 173 of the Code of Criminal procedure. It is to be stated here itself that on 4-10-1979 the police submitted charge-sheet with the allegations that the present petitioners had committed offences punishable under Ss. 147, 148, 323, 324 and 326 all read with 149 of the Indian Penal Code and so on, but not under S. 302 read with S. 149 or S. 302 of the Indian Penal Code simpliciter, and a case in C. C. No. 431 of 1979 was registered. This also has been noted by the learned Magistrate in the impugned order. This also has been noted by the learned Magistrate in the impugned order. After noting this much, he has directed that warrant under S. 204 of the code of Criminal Procedure be issued against the petitioners and that all of them were to be tried for the offences alleged in the charge-sheet and also for the offence under S. 302 of the Indian penal Code. ( 4 ) THE facts narrated above show that the Magistrate has failed to follow the mandatory provision in S. 210 of the code of Criminal Procedure, and has decided to take cognizance after recording the sworn statement of the respondent and other witnesses including a doctor. Therefore, his taking cognizance of the offence on the complaint of the respondent is not in accordance with law and as such not sustainable. ( 5 ) S. 210 (1) of the Code of Criminal procedure reads as follows :"when in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. " ( 6 ) IN view of the averments in the complaint of the respondent that the police were investigating but it appeared to him that they had not taken notice of the subsequent death of his son because of the assault, it is to be held that it was made to appear to the Magistrate, during the course of the enquiry into the complaint of the respondent, that investigation by the police was in progress in relation to the very offence. When that is so, it was the duty of the Magistrate to stay his hands in proceeding further in the complaint filed by the respondent. He has failed to do so. When that is so, it was the duty of the Magistrate to stay his hands in proceeding further in the complaint filed by the respondent. He has failed to do so. ( 7 ) IN view of the fact that the Magistrate has taken cognizance of the offence alleged by the police in the charge-sheet against the petitioners, it was open to him to proceed with the trial of the case after observing the requirements of Ss 210 (2) and 210 (3) of the Code of Criminal Procedure as far as may be applicable. If in the course of trial but before recording judgment it appeared to him that a case which ought to be tried by a Court of Session had been made out, S. 323 of the code of Criminal Procedure would be applicable. This aspect of the matter has been over-looked by the learned Magistrate. Therefore the proper procedure that was to be adopted by the learned magistrate was as narrated above and then act under S. 323 of the Code of Criminal Procedure in case the material available in the evidence during the trial but before signing the judgment warranted such an action. ( 8 ) IN view of the foregoing reasons, this revision petition is allowed so far as the action of the Magistrate in taking cognizance of the offence under S, 302 of the indian Penal Code on the complaint of the respondent is concerned, and that part of the impugned order is set aside. The Magistrate is directed to follow the procedure as made clear in the body of this order. --- *** --- .