Judgment S.B.Sinha, J. 1. This application is directed against an order, dated 2.6.1988 passed by Sri. N.K. Sinha, Sub-divisional Judicial Magistrate, Leather, Panama in Case No. 91/85, where by and whareunder cognizance has been taken as against the petitioners under Secs. 325/34 of the Indian Penal Code. 2. The facts of the case lie in a very narrow compass. 3. A complaint petition was filed by the complainant-opposite-party in the Court of Chief Judicial Magistrate, Latehar on 3.10.1985 purported to be in relation to an offence under Secs. 304-A, 342 and 325/34 of the Indian Penal Code. 4. It appears that the complainant filed a petition on 3.10.1985 praying therein that a report be called for from the poltce and the said prayer was allowed The Police report was received in the court on 14.10.1985. 5. Thereafter, the complainant was examined on a solemn affirmation on 11.12.1985 and the learned court below directed that the issuance of processes against the accused persons be postponed and an enquiry be held under Section 202 of the Code of Criminal Procedure. 6. On 4.2.1986, one Rahil Toppo was examined by the learned court below and thereafter, the learned court below fixed the date on 15.3.1986 for further evidence, on which date some documents were filed. 7. On 8.3.1986, the learned court below came to the conclusion that on the basis of materials on record, it is necessary, in the interest of justice, to ex-mine some more witnesses and issued summons in terms of proviso to Sec. 311 of the Code of Criminal Procedure, as against Dr. N.K. Mishra, Dr. C.D. Bink, Banesh Graon and Budhu Oraon. 8. Despite issuance of the aforementioned notices, no further witnesses was examined, as apparently they did not turn up. 9. However, by reason of the impugned order, dated 2.6.1988, cognizance was taken by the learned court below. 10. Mr. Debi Prasad, thus learned Counsel appearing on behalf of the petitioners, raised a short question. The learned Counsel submitted that in view of the fact that by reason of me order, dated 18.3.1986, the learned court blow formed an opinion that it is not possible to issue summons against the accused persons and thought it fit to examine some more witnesses as court witness, no cognizance could have been taken as against the petitioners in absence of the evidences of those persons. The learned Counsel, in this connection, had relied upon a decision of the Supreme Court in Mohammad Ataullah V/s. Ram Satan Mahto reported in -- . 11. Mr. Manjul Prasad, the learned Counsel appearing on behalf of the complainant-opposite-party, on the other hand, submitted that the Magistrate in exercise of its power conferred upon him under Sec. 190 of. the Code of Criminal Procedure may lake cognizance of an offence of the basis of the materials on record and even on the basis of the statements made in the complaint petition only. The learned Counsel, in this connection, has relied upon a decision of the Supreme Court in Commissioner of Sales Tax, Gujarat V/s. Union Medical Agency reported in -- and in J.P. Sharma V/s. Vinod Kumar Jain reported in -- 12. The necessity of postponment of issuance of process appears to be that the court at the time of taking cognizance of an offence also intends to satisfy himself as to whether any offence has been committed by the accused persons or not. 13. There cannot be any doubt that a Magistrate is entitled to take cognizance of an offence only on the basis of the statements made in the complaint petition, if the complainant is a public servact, as was the case in the Supreme Court in J.P. Sinha V/s. Vinod Kumar Jain reported in -- or upon examination of the complainant on solemn affirmation in terms of Sec. 200 of the Code of Criminal Procedure. 14. However, the parliament in its wisdom thought it fit to safeguard the interest of the accused persons also so that an innocent person, who should not face trial, may not be unnecessarily summoned to stand trial. 15. 14. However, the parliament in its wisdom thought it fit to safeguard the interest of the accused persons also so that an innocent person, who should not face trial, may not be unnecessarily summoned to stand trial. 15. Sec. 202 of the Code of Criminal Procedure has been enacted in order to meet such a situation, which reads as fallows: Postponment of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Sec. 192, may, if he thinks lit, postpone the issue of process against the accused, and cither 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 tribal 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 Sec. 200. (2) in an inquiry under Sub-sec. (1), the Magistrate, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively 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-sec. (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code or an officer-in-charge of a police station except the power to arrest without warrant. 16. From a perusal of the aforementioned provisions it is evident that the Magistrate in his discretion may postpone the issuance of summons unless he finds that, a prime Jack case has been made out as against the accused person on the basis of she statements made in the complaint petition, the statements made by the complainant of solemn affirmation and the statements of the witnesses examined in an enquiry under Suction 202 of the Cods of Criminal Procedure. 17. 17. From the order-sheet, dated 18.3.1986, it is evident that till that date the learned court below as not satisfied that the sufficient material have been brought on record so as to enable him to come to a conclusion that a prima facie case has been made out against the petitioners, so they may be summoned to stand their trial. It is only, with that end in view, the learned court below exercised his power under the proviso to Sec. 311 of the Code of Criminal Procedure for the purpose of examining some of the witnesses named in the complaint petition as court witnesses. 18. It may be mentioned that before the learned court below, the complainant categorically stated that he has no fu there witnesses to be examined It is admitted that thereafter the witnesses who were summoned by the learned court below, were not examined. 19. Inasmuch as the learned court below could not have issued summons as against the petitioners, the decisions cited by Mr. Manjul Prasad are not applicable to the facts of the present case. 20. The Supreme Court in Mohammad Atullah V/s. Ham Saran Mahto reported in -- , stated the law thus: It was submitted on behalf of the appellant that the learned Sub-Divisional Magistrate had directed an investigation under Sec. 202 presumably because he was prima facie not satisfied that the complaint and the sworn statement of the complainant, justified the issue of process to the accused. Having directed an investigation under Sec. 202, what was there in the report of investigation to justify the issue of process to the accused, it was asked. The report of investigation merely sat out the conclusion of the Executive Officer, Samastipur Municipality, without mentioning or referring to any material which would justify the issue of a process. It was, therefore, said that the Chief Judicial Magistrate was wrong in issuing process, on the basis of the report of investigation made by the Executive Officer, Samastipur Municipality, We are afraid the submission hats to be accepted, There is no answer to it. As already pointed out by us the Executive Officer, Samastipur Municipality, in his report, merely expressed his opinion but mentioned no detail of the investigation made by him and referred to no witness examined by him or any document perused by him. As already pointed out by us the Executive Officer, Samastipur Municipality, in his report, merely expressed his opinion but mentioned no detail of the investigation made by him and referred to no witness examined by him or any document perused by him. Therefore, when the Chief Judicial Magistrate took cognizance of the case and ordered issue of process against the accused there was no additional material before him except what was already there when he ordered an investigation under Sec. 202, Criminal Procedure Code. Obviously the learned Chief Judicial Magistrate, without any reference to any further material, took) cognizance of the case and ordered the issue of process to the accused merely on the basis of the opinion expressed by the Executive Officer, Samastipur Municipality. That he was not right in doing. 21. This Court also in Shiva Sanker Prasad V/s. Hardeo Sahay reported in 1962 BLJR p. 183, held as follows: It is now well-settled that when once a Magistrate refuses to summon the person complained against until after the receipt of an enquiry, it is not open to him to summon the accused before he is satisfied that it is a fit cast in which the accused should be suasion. When therefore, a Magistrate doubts the truth of the complaint and orders an inquiry under Sec. 202 of the Code, he should not proceed further with the case until that doubt has been samovar by the receipt of a report by the officer concerned, who holds the inquiry under Sec. 202 of the Code, if until any other adequate material has been placed before him for the purpose of removing his doubt. If it is found that the original person appointed to hold the enquiry is delaying the matter, or if there is any other good reason, the Magistrate may recall it and entrust the inquiry to some one also, but in no case should process be issued against the person complained against until the enquiry report under Section 202 has been received. Where, therefore, a Magistrate directs an inquiry under Sec. 202 to be held into a complaint, he should await the result, and it is improper for him to issue process against the person complained against until he receives a report from the inquiry officer, or, until any other adequate material is placed before him for the purpose of removing his doubt. If, therefore, a Magistrate summons the accused, without receiving a report of the enquiry under Sec. 202, or, without any other material having been placed before him for removing his doubt, and, without recording any reason for doing so, his order summoning the accused must be set aside. 22. In view of the aforementioned authoritative pronouncements. I have no other option but to hold, that as no fresh materials were brought on record after passing of the aforementioned order, dated 18.3.1986, the impugned order dated 2.6.1981, whereby and whereunder the learned court below has issued processes as against the petitioners for standing trial under Secs. 325/34 of the Indian Penal Code, cannot be sustained. 23. In the result, this application is allowed and the order, dated 2.6.1988 is hereby quashed.