ORDER A police case was started against the petitioner an a complaint made by the opposite party which, however, ended in a final report and on accepting the same the learned Magistrate discharged the petitioner. About ten weeks thereafter it is laid that the opposite party made a complaint before a competent Magistrate on the same allegation. The learned Magistrate examined the complainant and the witnesses hut postponed the Issue of process and sent for the police diary in the Investigation by the police and eventually on perusal of the same and the testimony of the complainant and his witnesses, he took the view that a prima fecie case again the present petitioner was made out under s.342 I.P.C. and process was Issued accordingly. In this Rule the petitioner has challenged this order on the ground that the learned Magistrate had exceeded jurisdiction in looking to tile police diary before issuing process. 2. Section 202 code of Criminal Procedure permits a Magistrate to postpone the issue of process and either enquire Into the case himself or direct an Investigation by police or by such other persons a may he thought fit for the purpose of deciding whether or not there was sufficient ground for proceeding. In the Instant easel there was no direction for investigation by police or by any other person and, therefore, the question which calls for adjudication in this Rule is whether it was open to the learned Magistrate to look to the police diary as a part of the enquiry made by him under s.202 Cr P C. The issue of process is a matter for judicial determination and in this process the Magistrate is expected to confine himself to the materials on the record before him. If the position was otherwise, It would enable a Magistrate to turn to almost anything he might lay his hand upon which cannot be allowed in any judicial proceeding If really the Magistrate was of the opinion that there were persons whose statements in police papers provided material justifying issue of process, the Magistrate could and certainly should have secured the presence of such poisons for examination in court Without such examination, It will be manifestly unjust to use the statement occurring In the police' diary Reference may be made in this connection to the decision of the Supreme Court in Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose & anr. AIR 1963 SC 1430 . In that case one Panchanon lodged an FIR with the police alleging that one Prakash had killed a man named Nageshwar who was a darwan under the Informant's master The police undertook investigation but submitted a final report Thereafter one Mahendra, claiming himself to be a relative of the deceased, filed a complaint before a Magistrate which was referred to another Magistrate for holding a judicial enquiry During the pendency of this enquiry, one Chandra Deo a nephew of the deceased, filed another complaint stilting that Prakash had murdered the deceased This complaint was also sent to the same Magistrate for a judicial enquiry and in such circumstances. it has been observed by the Supreme Court that in deciding whether there was ground to proceed on the complaint filed by Chandra Deo, It was not open to the Magistrate to consider the statements recorded by the police during Investigation In the case started by Panchanon or even the evidence adduced before the Magistrate in the enquiry arising out of the complaint filed by Mahendra Therefore, there cannot be any manner of doubt that the contents of the police diary to a previous Investigation by police even relating to the same allegation must be regarded as matters extraneous to the proceeding before the Magistrate All that the learned advocate fen the State had to say by way of reply was that s.172(2) Code of Criminal Procedure permits a Magistrate to send for police diary and to use the same not as evidence but an aid to enquiry or trial. He has also tried to derive support from the Full Bench decision of this Court in A.K. Roy v. State of west Bengal, AIR 1962 Cal 135 . Now, s.172(2) Cr P. C provides that a criminal court may send for the police diary of a case under enquiry or trial to such court and may use such diary not as evidence in the case but to aid it in such enquiry or trial Therefore, a plain perusal of s.172(2)Cr P.C makes it abundantly clear that a police diary may be used but only in the enquiry or trial to which the diary relates and it contains no warrant for use of the diary to any other case, The result is that in the instant case the Magistrate could not use the police diary to arrive at a decision whether process should be Issued or not on the complaint filed by the opposite party, for the simple reason that the diary did not relate to the enquiry before the Magistrate. The Full Bench decision cited by the learned advocate for the State is hardly relevant In that case, a final report was submitted by the police after investigation but a Magistrate on consideration of the material in the diary took the view that prima facie the accused was guilty of the offence alleged and accordingly he directed the police to submit a charge sheet In such circumstances questions arose among others, whether a Magistrate can direct the police to submit a charge sheet and whether the Magistrate could call for and peruse the case diary. Their Lordships answered the latter question in the affirmative and the majority decision was that the Magistrate could not direct the police to submit a charge sheet. The learned advocate for the State probably relied upon this decision because it was held that it was open to the Magistrate to look to the police diary and to take cognizance of the offence. The learned advocate for the State probably relied upon this decision because it was held that it was open to the Magistrate to look to the police diary and to take cognizance of the offence. The power of the Magistrate to look to the police diary in connection with the enquiry before him can never be doubted as it is expressly provided in s. 172(2) Cr P C The question in the instant Rule is whether use of police diary is permissible In some other enquiry and the foregoing decision is by no means an authority for the proposition that a police diary can be used even In connection with an enquiry in some other case. 3. For reasons stated above I am clearly of the opinion that the learned Magistrate has committed an error by issuing process after perusal of the police diary in the previous investigation. Therefore, the impugned order cannot be sustained and the learned Magistrate should be given a direction to decide whether any ground to proceed bas been made out by the evidence on record and the result of such further enquiry as may be held in accordance with law and considered necessary by him. 4. The order under revision is, therefore, set aside and the learned Magistrate is directed to dispose of the proceeding in the manner indicated above with utmost expedition. The Rule is thus disposed of. Rule disposed of Direction given