Judgment R.N.Sahay, J. 1. These cases present an interesting though peculiar situation and problem. 2. On 5-11-1990, Ram Kumar Sao son of Prayag Sao (petitioner in Crl. Misc. No. 212/93-R) was shot dead near Piska More while he was returning with the petitioner after purchasing medicine. The details of the occurrence are stated in the F. I. R. instituted by Prayag Sao (Sukhdeonagar P. S. Case No. 704/90). The case under Section 302/34, I. P. C. was registered against Uday Shankar Ojha and Basudeo Ojha @ Tun Tun Ojha (petitioners in Crl. Misc. 5318/921-R). 3. According to the allegation in the F. I. R., while the informant was returning back from medicine shop with his deceased son Rara Kumar Sahu and had reached in front of the house of Pappu Kedia, he had seen one Maruti Van, in which the two petitioners and their guard (Police Havildar Sudarshan Pandey) were there. The vehicle was stopped near the informant. It was being driven by Tuntun Ojha and Uday Shankar Ojha was sitting by theside. Both got dowq of the vehicle and Tuntun handed over ride to Uday Shankar Ojha. Uday Shankar Ojha fired 6 to 7 rounds hitting informants ton Ram Kumar Sahu who fell down on the Galiara. Uday Shankar Ohja wat saying that he had come to murder them and hence he would kill him. Body guard of Uday Shankar Ojha sitting in the vehicle and Tuntun was saying that killing should be done today. After that they all went away on Maruti Van. -Informants son died over there. 4. On the same day after a few hours of the occurrence, Basudeo Ojha also gave a written report in Kotwali P. S. in which he admitted having shot Ram Kumar Sao, but did so in his right of private defence since he was attacked with explosives by the deceased. It it, however, not clear whether any counter case was registered on the report of Basudeo Ojha. 5. On 6-11-1990 and 8-11-1990, 164 Cr. P. C. statement of seven witnesses in all was recorded out of whom five are said to be eye-witnesset. They supported the case in the F. I.R. 6. On 31-1-1991, the Investigating Officer, of Sukhdeonagar Police Station submitted charge-sheet against Basudeo Ojha and Uday Shankar Ojha under Section 302/34, I. P. C. There are 16 witnesses in the charge-sheet. P. C. statement of seven witnesses in all was recorded out of whom five are said to be eye-witnesset. They supported the case in the F. I.R. 6. On 31-1-1991, the Investigating Officer, of Sukhdeonagar Police Station submitted charge-sheet against Basudeo Ojha and Uday Shankar Ojha under Section 302/34, I. P. C. There are 16 witnesses in the charge-sheet. Paaagraph 153 of the Case Diary showed that the charge-sheet was submitted on the orders of the Senior Superintendent of Police, Ranchi. 7. On 4-2-1991, the Crime Branch sent a wireless message to the Sr. Superintendent of Police, Ranchi to the effect that the C. I. D. had taken control of the case and one Md. Mushtaquim would investigate the case. The wireless message is quoted below : "C. I. D. has taken over investigation of Ranchi Kotwali (Sukhdeo Nagar) P. S. Case No. 704/90 dated 5-11-1990 under Section 302/ 34, I. P. C. and Arms Act. Inspector Md. Mokim of C. B. team C. 1. D. Ranchi has been appointed I. O. of the case. He will start investigation of the case atonce. He will inform the concerned court through P. P. Ranchi regarding investigation of this case and send compliance report to this office." 8. After few days of the wireless message, cognizance on the charge-sheet was taken by the C. J. M., Ranchi by his order dated 9-2-1991. On 27-2-1991, Inspector Md. Mokim of the Crime Branch Patna informed the P. P. Ranchi that the Crime Branch shall make further investigation under Section 173(8) of the Code of Criminal Procedure (in Sukhdeo Nagar P. S. Case No. 704/90) and that he has been entrusted to investigate the case. The circumstances under which further investigation had been ordered were also stated in the letter. The case was committed to the court of sessions on 1-6-1991. On 29-4-1994, Md. Mokim submitted a detailed report in Non-F. I. R. No. 1/92 to the effect that the case against Uday Shankar Ojha has been found to be false and he further recommended prosecution of the informant Prayag Sao under Section 211, I. P. C. and submitted charge-sheet under Section 307/34, I. P. C. against one Budhuwa Kachhap. On 29-4-1994, Md. Mokim submitted a detailed report in Non-F. I. R. No. 1/92 to the effect that the case against Uday Shankar Ojha has been found to be false and he further recommended prosecution of the informant Prayag Sao under Section 211, I. P. C. and submitted charge-sheet under Section 307/34, I. P. C. against one Budhuwa Kachhap. The Chief Judicial Magistrate issued notice to Prayag Sao who appeared through his counsel and submitted that cognizance had already been taken in the Kotwali P. S. Case No. 704/90 against Uday Shankar Ojha and his brother Basudeo Ojha and the case has also been committed to the court of sessions and the C. J. M. had no jurisdiction to do anything in the matter. Further, Inspector Mokim had given information that Basudeo Ojha had fired in exercise of right of private defence and Uday Shankar Ojha was not present at the time of occurrence. These facts came to light ou further investigation. It was submitted that prayer for prosecution of Prayag Sao under Section 211, I. P. C. was misconceived. It was also contended that after cognizance, no reinvestigation should be done. 9. The Chief Judicial Magistrate passed the following order on 21-1-1993 : "First of all I went to say that admittedly the case i.e., Kot. (S) 704/90 dated 5-11-1990 under Section 302/34, I. P. C. was committed to the court of Sessions against Uday Shankar Ojha and Basudeo Ojha @ Tuntun. The Session trial is pending in the court of Shri M. Haque, A. J. C, Ranchi. The record was called for from the court but unfortunately it has not been received. But both the parties have admitted the fact while arguing the case. As it appears that the Sr. S. P. had requested the C. I. D. for taking re-investigation in this case under Section 173(8), Cr. P. C. and accordingly the Inspector C. I. D. Md. Mokim took the investigation in this case and recorded evidence. I have also gone through the case diary in which the Inspector of C. I. D. collected evidences in this case. In the report submitted to this Court by Md. P. C. and accordingly the Inspector C. I. D. Md. Mokim took the investigation in this case and recorded evidence. I have also gone through the case diary in which the Inspector of C. I. D. collected evidences in this case. In the report submitted to this Court by Md. Mokim dated 29-4-1992 prayed for taking cognizance against Prayag Sao under Section 211, I. P. C. also to take cognizance against one Budhwa Kachhap under Section 307/ 14, I. P. C. The police has reinvestigated the matter under Section 173(8), Cr. P. C. and found new facts. Under the facts and circumstances I find that the police has got power to reinvestigate the matter under the provisions of Section 173(8), Cr. P. C. There are materials on the record for taking cognizance against accused Prayag Sao under Section 211, I. P. C. The show cause filed by the petitioner Prayag Sao is hereby rejected and the cognizance against him is taken under Section 211, I. P. C. and the case is transferred to the court of Shri A. H. Anand J. M. 1st class after opening a separate record. As regards the cognizance against Budhwa Kachhap is concerned. I take cognizance against him also under Section 307/34, I. P. C. and under Section 27 Arms Act and the case is transferred to the aforesaid court. As regards discharge of Uday Shanker Ojha and Basudeo Ojha alias Tuntun who were facing trial before the court of Shri M. Haque Additional Judicial Commissioner, Ranchi, in S. T. No. 248/91 is concerned, this court has got no jurisdiction to discharge them. As such accused Uday Shankar Ojha and Basudeo Ojha alias Tuntun may take step in the court concerned for the same. Sd. C. J. M. 14-9-1992." 9-A. It may be pointed that the Chief Judicial Magistrate passed the aforesaid order without looking into the entire evidence collected earlier on the basis of which he had taken cognizance. As a matter of fact, he had no opportunity to look into the evidence as the entire record had been despatched to the court of sessions. 10. The scene now shifts to the court of Additional Judicial Commissioner where the sessions case is pending. Armed with the order passed by the C. J. M. dated 21-1-1993, Uday Shankar Ojba and Basudeo Ojha applied for their discharge. 10. The scene now shifts to the court of Additional Judicial Commissioner where the sessions case is pending. Armed with the order passed by the C. J. M. dated 21-1-1993, Uday Shankar Ojba and Basudeo Ojha applied for their discharge. Learned Additional Judicial Commissioner, passed the following order on 4-12-1992 : "In this back ground I went through both the case diary and I find that not only in the 1st case diary but also in the 2nd case diary. There are specific and categorical accusation against both Udai Shankar Ojha and Basudeo Ojha alleging offence under Section 302/34, I. P. C. and 27 of the Arms Act. There are both eye-witness and witnesses on circumstances pointing complecity of the petitioners. Besides thre are confessional statement in both the case diaries of accused Basudeo Ojha leading production of riflle used in the commission of the offence. Accused Basudeo Ojha has raised the plea of right of private defence of person. This plea can be judged at the trial and not at this stage. Hence having considered arguments of both the sides and statement of witnesses recorded in both the case diaries I find that there are grounds for presuming that the accused petitioners have committed the alleged offence under Section 302/34, I. P. C. and 27 of the Arms Act and so the charges have to be framed against them accordingly. Hence their petitition for discharge is rejected." 11. Prayag Sao has challenged the order of the Chief Judicial Magistrate dated 14-9-1992 whereby he has taken cognizance of offence under Section 211, I. P. C. against Prayag Sao and transferred the case to the court of Sri Ansari Judicial Magistrate 1st class for trial. The accused person of Sessions Trial No. 248/91 Uday Shankar Ojha and Basudeo Ojha have prayed for quashing of the order dated 4-12-1992 passed by the Additional Judicial Commissioner, Ranchi by which he disallowed the prayer of the accused persons and for discharge in view of the supplementary charge-sheet submitted by the Inspector C. I. D. 12. The question for consideration is as to whether the order of the C. J. M. is in accordance with law and whether the Additional Judicial Commissioner justified in the facts and circumstances of the case to disallow the prayer of the accused persons to discharge them. 13. The question for consideration is as to whether the order of the C. J. M. is in accordance with law and whether the Additional Judicial Commissioner justified in the facts and circumstances of the case to disallow the prayer of the accused persons to discharge them. 13. In our opinion, the order of the C. J. M. is completely without jurisdiction. There is no question of prosecution of the informant under Section 211, I. P. C. so long the sessions case against accused persons was not disposed of. No case under Section 211, I. P. C. was instituted against Prayag Sao. There was also no separate investigation. The Inspector who reinvestigated the case found the case against the accused persons to be false and he simultaneously prayed to the court for prosecution of the informant. 14. In AIR 1967 SC S28, a report was lodged by the informant alleging commission of cognizable offence against the accused. During the pendency of the investigation by police, the accused filed a complaint before a Magistrate against the informant for commission of offence under Section 211, I. P. C. The Magistrate took cognizance of the complaint. On the date cognizance was taken, there was no judicial order by any Magistrate in respect of the report lodged by the informant. It was held by the Supreme Coutt that legality of the cognizance has to be judged in relation to the date on which the cognizance was actually taken and as on that date there was no proceeding pending in any court in relation to any offence alleged to have been committed, the Magistrate was not barred from taking cognizance. 15. In the old Cr. P. C, there was no provision proscribing the procedure followed by the police after submission of the report under Section 173(1) and after the Magistrate had taken cognizance of the offence, if fresh facts came to light which required further investigation. There was, of course, no express provision prohibiting from launching upon an investigation into fresh facts coming to light after submission of the report under Section 173(1) or after the Magistrate had taken cognizance of the offence. Even under the old Code it was generally thought by many High Courts that the police were not barred from further investigation of the circumstances when report under Section 173(1) had already been submitted. Even under the old Code it was generally thought by many High Courts that the police were not barred from further investigation of the circumstances when report under Section 173(1) had already been submitted. Law Commission in its 41st report recognised the position and recommended that the right of the police to make further investigation should be statutorily affirmed. It was observed by it as follows : "A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and sent it to the Magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence send a report to the Magistrate, Copies concerning the fresh material must of course be furnished to the accused." Section 173(8), Cr. P. C. reads a follows : "Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or doumentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed ; and the provisions of sub-section (2) to (6) shall, as far as may be apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 16. The power of the police to make further investigation in the instant case cannot be questioned. The question for consideration is whether the procedure followed by the Chief Judicial Magistrate is said to be in accordance with law. The case was pending before the sessions court. The power of the police to make further investigation in the instant case cannot be questioned. The question for consideration is whether the procedure followed by the Chief Judicial Magistrate is said to be in accordance with law. The case was pending before the sessions court. What would be the effect of further investigation in respect of a case pending before the court of sessions has been considered in the State of Bihar v. N. Nagmani, 1977 PLJR 152. In that case, the trial of N. Nagmani had commenced before the court of sessions. In course of trial it transpired that certain facts required further clarification and it was thought desirable to hold a further investigation under Section 173(8), of the Code. Accordingly further investigation was done and investigation officer submitted supplementary diary which had been recorded during further investigation. A petition together with the supplementary case diary was filed before the sessions court saying that further investigation had been held by the Investigating Officer who had forwarded a report regarding the evidence collected by him, copies whereof had been furnished to the accused persons and that it was being filed in accordance with the provision of sub-section (8) of Section 173 of the Code. Prayer was made that materials produced by the Investigating Officer should be taken into evidence and the prosecution may be allowed to lead evidence on the basis thereof. The Additional Sessions Judge rejected the petition taking a view that once sessions trial has commenced, the Investigating Officer could not hold any investigation in connection with the said case and that also after cross-examination of the prosecution witnesses. 17. It was held by N. P. Singh, J. as His Lordships then was that sub-section (8) does not speak about the stage upto which this power can be exercised by the Investigating Officer. The learned Judge observed that even if it is assumed that this power of submitting a further report after further investigation is available to the Investigating Officer during pendency or continuation of trial, a further question has to be answered i.e., as to whether any such report can be submitted to the court of sessions while the sessions case is pending trial. This was the main question which was considered in that case. The learned Judge observed that no difficulty arises if the case is triable by the court of sessions. This was the main question which was considered in that case. The learned Judge observed that no difficulty arises if the case is triable by the court of sessions. If, however, the offence alleged is one which is exclusively triable by a court of sessions then under Section 209 the Magistrate before whom the case is pending has to pass an order of commitment. After passing the order of commitment, the Magistrate has to remand the accused to custody during and until the conclusion of the trial. The Magistrate is also to forward the record of the case and documents etc. to the court of sessions. Thereafter, the provision of Chapter 18 of the Code becomes applicable which prescribed the procedure for trial before the court of sessions. There is nothing in the Chapter 18 of the Code from which it can be inferred that the Investigation Officer can submit a report regarding further investigation directly to the court of sessions where the trial is pending. In para 7 it was observed as follows : "Section 173(8) States in clear words that the words that the officer-in-charge of the police station shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed." It was therefore held that the report of further investigation cannot be forwarded directly to the court of sessions. It was also not permissible to send the report through the Magistrate who took congnizance. This was so because when an order of commitment under Section 209 is to be made or trial is to be commenced, the procedure prescribed under Section 207 is to be followed. Therefore, it was held that if supplementary case diary sent to the Magistrate who took cognizance and summoned the accused or to the Magistrate who passed the order under Section 209 of the Code, the Magistrate in any view cannot send the records of the supplementary case diary to the court of sessions as there was no provision in the Code. Ultimately it was held that although the police has statutory power to investigate into a case, still, if the sessions trial has commenced, then no such report as contemplated by Section 173(8) can be forwarded to the court of sessions directly or through the Magistrate who had taken cognizance and summoned the accused persons or have committed the accused to the court or sessions. The prosecution, however, is not precluded from examining the witness or from producing any evidence which may have been discovered during the pendency of the trial. 18. Applying the ratio of that case, it must be held that an anomalous situation is created in the instant case. Here it is not a case of further evidence, but after further investigation, the case was found to be false. It is, however, in my opinion not necessary nor possible to decide this case on the ratio of Nagmanis case (supra). 19. Let us now advert to the supplementary charge which is indeed an interesting and intreguing document. The supplementary, charge-sheet was filed on 30-4-1992 by Inspector Mohsin. In the first column of the charge-sheet, Prayag Sao is shown to be the informant of the case. The second column requires the names of accused persons sent up for trial to be mentioned. In the supplementary charge-sheet above, Uday Shankar Ojha and Basudav Ojha original accused, the deceased Ram Kumar Sao son of the informant and one Budhu Kachap have also been shown to be accused. It is something remarkable that the deceased himself has been made an accused for his own murder. There is no case on Budhu Sao who was in any way involved in the killing of Ram Kumar Sao. In column No. 6 of the supplementary charge-sheet, apart from five other witnesses, the accused Basudeo Ojha and Uday Shakar Ojha have also been shown to be witnesses. It is also remarkable as to how accused persons have beed shown to be charge-sheeted witnesses. In column No. 7 of the supplementary charge-sheet (Annexure-6), the Investigating Officer made the following remarks : "In this case C. S. No. 4/91 dated 31-1-1991 under Sections 302/34, IPC and 27, Arms Act was submitted against the accused Nos. 1 and 2 named in Col. 2 by the local police. Due to certain allegations against the investigation agency and as per recommendation of Sri S. P. Ranchi, the CID had to take up the investigation of the provision of Section 173(8), Cr. P. C. as per the order of DG Police CID Bihar, Patna. During the investigation it was established that it was not at all a case under Section 302, IPC and the accusation in the FIR are palpably false and are motivated. P. C. as per the order of DG Police CID Bihar, Patna. During the investigation it was established that it was not at all a case under Section 302, IPC and the accusation in the FIR are palpably false and are motivated. The accused persons had to fire in right of private (self) defence of person and property as he was attacked by the deceased and other co-accused person mentioned in Col. 4 in order to do away with his life and further snatch his arm. During further investigation, a prima facie case was established under Sections 307/34, IPC and 27, Arms Act against the accused Ram Kumar Sao (deceased) and Budhua Kachhap. Hence supplementary C. S. aginant the persons named in Col. 4 is being submitted under Sections 307/34, IPC and 27, Arms Act showing accused Ram Kumar Sao (deceased) in Col. 2 Sl. No. 3 so that he may stand trial in the court of law. Accused Udai Shankar Ojha and Basudeo Ojha previously charge-sheeted may be discharged accordingly. Sd. 29-4-1992. Inspector of Police CID Bihar, Patna, Camp Ranchi". 20 According to the supplementary charge-sheet, the Investigation Officer found that during investigation it was established that it was not a case under Section 302, IPC since Ram Kumar Sao was killed by Basudeo Ojha in exercise of his right of private defence and hence the case was palpably false. Investigating Officer also says that the supplementary charge-sheet exonerating Uday Shankar Ojha and Basudeo Ojha was based on the statement of Budhua Kachhap whose statement was recorded under Section 164, Cr. P. C. before the S. D. J. M. soon after the occurrence and before further investigation was undertaken. The statement of Budhua Kachhap was as follows : "At 10.30 a. m. at Ratu Road new market bus stand 2 or 3 students were standing. I was also there. Ram Kumar Sao came with 2/3 boys. Ramkumar Sao leave Ratu road and go to Piska more. When we reached Ratu road, the road was found jammed. One Maruti of white colour was parked. We were going on a tempo with Ram Kumar to Piska more. We stopped on seeing white Maruti. Ramkumar got down with 2 to 3 boys. There was jhanjhat. In Maruti van one boy wag sitting. Then we returned. When we reached Ratu road, the road was found jammed. One Maruti of white colour was parked. We were going on a tempo with Ram Kumar to Piska more. We stopped on seeing white Maruti. Ramkumar got down with 2 to 3 boys. There was jhanjhat. In Maruti van one boy wag sitting. Then we returned. On reaching Ratu road bus stand I came to know that Ram Kumar has been murdered." Inspector Mokim has characterised this statement as confessional statement. There is nothing in the statement to show that he was in any way involved or that Ram Kumar had done anything. His statement is simply vague and does not lead to any inference. 21 It will be relevant at this stage to refer to another important document. It is a petition riled by accused Uday Shankar Ojha, before the Officer-in-charge Kotwali, P. S. on 5-11.1990 at 11 a. m., that is a few hours after the occurrence. In this petition, he says that on 5-11-1990 he along with his brother Basudeo Ojha (accused) and two leaders of Janta Dal and body guard Sudarsan Pandey started from his residence at Hehal. He got down at near Upabar talkies. He asked his brother Basudeo to deposit his rifle in Sharma Gun House. Basudeo proceeded to the Gun House alone and after 15 minutes one tempo-wala came and said that bis brother had been surrounded by Ramkumar and 5-6 criminals who were about to murder him near Singh Motor. On hearing this, Uday Shankar and his guard ushed on a scooter to the place, disclosed by the tempowala. On reaching there and on enquiry he learnt that the aforesaid criminal had thereatened his brother with bomb in order to snatch his rifle. His brother fired in self-defence by which Ramkumar washurt. Uday Shankar rushed to Kotwali and narrated the story to the DSP. He also stated that Ram Kumar had earlier attacked him in his house. He had been in jail and after coming out had been threatening him on phone. Basudeo Ojha simultaneously filed a separate petition to the effect that he went to deposit his rifle in the Sharma Gun House and when he reached near Singh Motor, a tempo stopped and 8 persons got down. They attempted to kill him by bomb. He had identified Budhua Kachhap and Ram Kumar who were criminals. Basudeo Ojha simultaneously filed a separate petition to the effect that he went to deposit his rifle in the Sharma Gun House and when he reached near Singh Motor, a tempo stopped and 8 persons got down. They attempted to kill him by bomb. He had identified Budhua Kachhap and Ram Kumar who were criminals. Finding no alterntive, he fired from his rifle by which Ram Kumar was injured. 22. It is significant to state that there is nothing on record to show that any case was registered on the aforesaid report against Budhua Kachhap and any other person. It is also significant that Inspector Mokim while submitting supplementary charge-sheet ignored the entire material in the case diary collected during the initial investigation. It has been held in Shambhu Nath Singh v. State of Bihar, 1982 BBCJ 561 (DB) that no doubt police may make further investigation into a case, but even if supplementary charge-sheet is filed, the previous police report is not wiped out. 23. Inspector Mokim although was an experienced police officer, was not efficient enough to understand the intrecasies of law. According to him since Basudeo Ojha had fired in self-defence, it was not a case under Section 302, IPC. Assuming that the finding of the Inspector that Basudeo Ojha had killed Ram Kumar in his right of private defence, the case may not be under Section 302, IPC, but under Section 304, IPC. 24. There can be no escape from the fact that Ram Kumar was murdered which has been admitted by the accused. The act of the accused clearly comes within the purview of Section 299, IPC which defines culpable homicide. Section 300, IPC defines murder and lays down exception when culpable homicide is not a murder. 25. According to Section 96 of the IPC, nothing is an offence if it is done in exercise of right of private defence. Section 97 lays down the limits and latitude of right of private defence. These provisions are complete in themselves and the words used in the section themselves must be looked to for finding the limits and extent of the right. The determination of the question whether in a particular case there existed a right of private defence is always a question of fact. These provisions are complete in themselves and the words used in the section themselves must be looked to for finding the limits and extent of the right. The determination of the question whether in a particular case there existed a right of private defence is always a question of fact. Section 67 is subject to the restriction as made by Section 99 of the Code ; where it has been provided that right of private defence in no case extends causing of more harm than it is necessary for the purpose of defence as held dy the Supreme Court in AIR 1979 SC 1259 , so long as force is used within the limits prescribed by the law, no offence is committed, but when the force exceeds the limits prescribed, an offence is clearly committed. Section 100 of the Penal Code lays down the extent of the right of private defence and voluntarily causing the death against six specified kinds of assault mentioned in the section. The person claiming the right of private defence. under Section 100 has to establish that he had reasonable apprehension of death or grieveous hurt and further that he could not have protected himself than by use of force in the occurrence. 26. Whether in this case the right extended to causing death is purely a question of fact and Investigation Officer was to record a finding that the act was done in exercise of right of private defence. There is no suggestion in the supplementary charge-sheet that Section 100, IPC was applicable to the facts and circumstances of the case. 27. In the further investigation, the Investigating Officer has found that Uday Shankar Ojha was not present at the time of occurrence. Again it is a question of fact and having regard to the evidence collected earlier, absolving the accused persons from criminal liability in the facts and circumstances of the case is highly undesirable. As held in NagmanVs case (supra) there is no provision in the Cr. P. C. to enable the prosecution to put forward the supplementary case diary to the court of sessions. It will be open to the prosecution to lead evidence during trial that the act was done in right of private defence. This is a different matter. As held in NagmanVs case (supra) there is no provision in the Cr. P. C. to enable the prosecution to put forward the supplementary case diary to the court of sessions. It will be open to the prosecution to lead evidence during trial that the act was done in right of private defence. This is a different matter. But in any view of the matter, the accused persons cannot claim discharge from the court of sessions only because the supplementary report favours the accused persons. Consequently the order of the Chief Judicial Magistrate taking congnizance under Section 211, IPC against the informant is without jurisdiction apart from serious procedural irregularity. 28. Section 211, IPC deals with institution of criminal proceeding against a person making a false charge against another person of having committed an offence. An offence under Section 211, IPC is a non-cognizable offence. Section 155(2) of the Code of Criminal Procedure provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. It therefore, follows that a police officer cannot submit a report without the order of the Migistrate. The Police officer on his own motion, where he is sending an alleged offence committed, makes a formal report or complain in respect of non-cognizance offence, it would be bound to him to complain within the meaning of Section 2(d) or where there is no provision, he can in such a case make a police report. 29. In the instant case, admittedly no case under Section 211 was registered. The Investigaitng Officer had not filed any complaint for prosecution of the informant empowering the CJM to take cognizance. Finding in the supplementary charge-sheet that the case was false, the supplementary charge-sheet cannot be deemed to be a complaint within the meaning of Section 2(d) of the Cr. P. C, The order of the CJM is, therefore, without Jurisdiction, 30. There is another aspect of the matter which is to be considered. There was no counter case registered on the report of the Uday Shanker Ojha or Basudeo Ojha. The Supplementary charge-sheet does not say whather any counter case was registered and investigated by Md. Mokim otherwise charge-sheee under Section 307, IPC would not have been submitted against Budhua Kachhap. There is another aspect of the matter which is to be considered. There was no counter case registered on the report of the Uday Shanker Ojha or Basudeo Ojha. The Supplementary charge-sheet does not say whather any counter case was registered and investigated by Md. Mokim otherwise charge-sheee under Section 307, IPC would not have been submitted against Budhua Kachhap. It is also a peculiar feature of the case and that is why I have said that efficiency and knowledge of law and procedure of Md. Mokim is questionable and leads us to no-whera. He had not done hiB job faithfully. We have also found that he did not obtain the order of the Superintendent of Police before supplementary charge-sheet was filed. 31. The upshot of the above discussion is that Criminal Misc. No. 2I2/93-R is allowed and the order of the Chief Judicial Magistrate taking cognizance is quashed. Crim. Misc. No. 5318/92-R is dismissed. Let the lower court records be sent down at once. PRASUN KUMAR DEB, J. 32 I agree