Honble KHAN, J.–On 19.4.97 Suresh Chand Sharma, the informant, lodged a report with the P/s. Hindaun City, regarding the commission of rape by Vrindavan, applicant No. 2 on his wife Smt. Kusumlata. Against Madan Mohan, applicant No. 1, it was alleged that when Suresh went to protest against the mis- behaviour of Vrindavan, applicant No. 2, against his wife, he was beaten by Madan Mohan and Vrindavan, applicant Nos. 1 and 2. The police registered a case for offences u/Ss. 323, 451 and 376/511 IPC. After investigation the police came to the conclusion that no offence, punishable u/S. 376 r.w. Sec. 511 IPC was committed in the case. A police report for offence u/Ss. 451 and 323 IPC was accordingly submitted before the A.C.J.M., Hindaun. It appears that after the learned Magistrate had received the police report, he directed the police to get Smt. Kusumlata examined u/S. 164 Cr.P.C. Smt. Kusumlata was accordingly examined on 12.6.97 u/S. 164 Cr.P.C. though the chargesheet appears to have been submitted before the court on 13.5.97. It further appears that the applicants had been admitted to bail for offences u/Sec. 451/323 IPC by the police or by the learned Magistrate before recording the statement of Smt. Kusumlata u/S. 164 Cr.P.C. The applicants, apprehending their arrest in connection with the non- bailable offence of attempt to commit rape punishable u/S. 376/511 IPC, applied for anticipatory bail before the Addl. Sessions Judge, Hindaun City, who by his order dated 28.6.97 declined to accept their prayer mainly on the ground that the offences reported by the police to have been commi- tted in the case, were bailable and, therefore, an application u/S. 438 Cr.P.C. was not maintainable. The applicants further appear to have again applied for bail u/S. 438 Cr.P.C. on the basis of their apprehension of being arrested on the charge of commission of offence u/S. 376/511 IPC. The learned Addl. Sessions Judge again declined to pass appropriate order in favour of the applicants and dismissed their application on 2.8.97. That is how the applicants have approached this court for appropriate relief in the matter. (2). It was not disputed on behalf of the prosecution that a police report for offences u/Ss. 323, 451 IPC had been submitted to the Addl. Sessions Judge again declined to pass appropriate order in favour of the applicants and dismissed their application on 2.8.97. That is how the applicants have approached this court for appropriate relief in the matter. (2). It was not disputed on behalf of the prosecution that a police report for offences u/Ss. 323, 451 IPC had been submitted to the Addl. Chief Judicial Magistrate on 31.5.97 and thereafter the learned Magistrate had, may be on the request of the Investigating Officer or on his own, directed that the statement of Smt. Kusum Lata be recorded u/S. 164 Cr.P.C. and then her statement was accordingly recorded on 12.6.92. The learned Public Prosecutor did not dispute the position that before directing that the statement of Smt. Kusum Lata be recorded u/S. 164 the learned Magistrate had already taken cognizance of offences u/Ss. 323/451 IPC on the police report. If that was so, the procedure adopted by the learned Magistrate was not legally correct. Once the learned Magistrate had taken cognizance of the case and commenced the inquiry or trial he could not have directed the recording of the statement of a witness u/S. 164 Cr.P.C. Section 164 Cr.P.C. clearly says that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdic- tion in the case, record any confession of statement made to him in the course of an investigation under Chapter XII or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. Inquiry commences after the Magistrate has taken cognizance of an offence in a case. Cognizance of offence is deemed to have been taken by the Magistrate when he has applied his mind to the police report and the material submitted therewith and has either mentioned such a fact in some specific order made by him in that behalf or has proceeded with the hearing of the case and taken further steps in the direc- tion of holding inquiry or trial in the case. When he has already taken cognizance of offence in a case on police report and proceeded to hold inquiry or trial he may himself record the statement of the witness in the course of such inquiry or trial leaving no occasion for recording the statement of the witness u/S. 164 Cr.P.C. Investigation into an offence by the police is a stage coming to natural end if not kept pending u/S. 173(8) Cr.P.C., with the submission of the police report u/S. 173(2). Inquiry and trial by the Magistrate commence thereafter. The functions of judiciary and the police in the administration of criminal justice are in fact supplementary and not overlapping. Where the function of the police ends the function of courts in the adjudication of criminal cases commences. it is true that the addi- tion of sub-sec. (B) to Sec. 173 does not preclude further investigation by it but that does not mean that the added provision of sub-section (B) empower the Magistrate to order further investigation by the police. The statement of a witness recorded u/S. 164 Cr.P.C. does not go to make a new, further or additional evidence in the case as such evidence has already been obtained by examining him u/S. 161. State- ment of a witness recorded either u/S. 161 or 167 Cr.P.C. do not go to make substantive evidence at the trial. That may be used for contradiction purposes only. (3). In the instant case, it seems to me, the learned Magistrate had directed the recording of the statement of Smt. Kusum Lata to know or satisfy himself whether the accusation made against the applicants fell within the purview of the offence punishable by court of Sessions. But since he had, undisputedly, already taken cognizance of offence u/Ss. 323, 451 IPC on the police report submitted before him on 31.5.97 and had commenced inquiry or trial he could not have permitted or directed the investigating officer to collect evidence to the above effect by getting the witness, Smt. Kusum Lata, examined u/S. 164 Cr.P.C. That stage was already over on 31.5.97 and was not available on 12.6.97. The inquiry or trial had already commenced. The inquiry or trial had already commenced. The course open to the learned Magistrate was that as provided by Sec. 323 Cr.P.C. which says that if, in any inquiry into an offence or trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgement that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that court as per relevant provisions in that behalf. The learned Magistrate, in case it had appeared to him that the case was one which ought to be tried by the Court of Sessions, must have disclosed his mind to that effect upon the parties and proceeded as per Section 323 Cr.P.C. for the commitment of the case to the court of Sessions, if the material on his record at that stage of the proceedings prima-facie disclosed the commission of the offence punishable u/S. 376/511 IPC. (4). The procedure adopted by the learned Magistrate for directing the recording of the statement of Smt. Kusumlata under section 164 Cr.P.C. after the stage of investigation was over and his proceeding with the inquiry into the offence or trial of the case could have caused reasonable apprehension to the applicants that they may be arrested for the non-bailable offence under Section 376 or 376/511 IPC. At both the occasions, the applicants approached him under section 438 Cr.P.C., the learned Sessions Judges appears to be in some doubt or confusion regarding the effect or consequences of the orders made by the learned Magistrate. He, therefore, hesitated to pass orders u/S. 438 Cr.PC. as the applicants were already on bail in this very case. He was justified in his hesitation. Since the legal position has now been clarified by this court and as yet the learned Magistrate has not disclosed his mind to proceed or not to proceed in the case as per provisions of Sec. 323 Cr.P.C. and the applicants are already on bail there seems to be no necessity of issuing directions u/S. 438 Cr.P.C. by this court for the benefit of the applicants. This application is, therefore, dismissed with the observation that as and when the learned Magistrate has reasons to proceed in the case as per provisions contained in Sec. 323 Cr.P.C. he would disclose his mind to that effect upon the parties and would thereafter pass appropriate orders in the case according to law after hearing both the parties. (5). The present application is disposed of in the manner stated above.