Order.- This petition is directed against the Order made by the learned Sessions Judge, Chikmagalur, in Cr.R.P.No. 17 of 1966 on his file, on 24th October, 1966. The learned Sessions Judge by his Order has set aside the Order of discharge made by the learned Munsiff-Magistrate, Chikmagalur, in C.C. No. 1008 of 1965. He has also directed that the accused, the present revision petitioners, should be arrested and a fresh enquiry be held in the manner prescribed by law under section 207-A, Criminal Procedure Code. He has further directed that the Magistrate should direct the police concerned to submit a charge-sheet against the concerned accused persons. The facts relevant for the purpose of this application are briefly as follows: One Thammaiah Setty, a resident of Chikmagalur Town, lodged a complaint against the present revision petitioners, namely, Kitti and Jagga, who were also the residents of Chikmagalur Town. The allegations in the said complaint were that complainant and the accused were neighbouring cultivators of lands which were separated by a road and situated in Khasaba Hobli of Chikmagalur. It was also alleged that since 7th September, 1965 there were differences between them as regards the right to the use of water for cultivation by the accused. He has further alleged that on 17th September, 1965 his brother Siddappa Setty went to his field at 4 a.m. to attend to some agricultural operation. At about 6-30 a.m. on the same day, one Ameer, a jutka-driver, informed the complainant that the said Siddappa had been beaten and buried, leaving his face exposed and covered with thorns and that he should go quickly to the spot. On arriving at the spot along with others, he found Siddappa in the posture described by Ameer. He further alleges that he complained to the police and that a police officer came to the spot and removed Siddappa to the hospital. He also complained that no further action was taken by the police. That was the reason for his approaching the Court on 21st September, 1965, the date on which the complaint petition was presented by him. The learned Magistrate recorded the sworn statement of the complainant on 21st September, 1965. He also complained that no further action was taken by the police. That was the reason for his approaching the Court on 21st September, 1965, the date on which the complaint petition was presented by him. The learned Magistrate recorded the sworn statement of the complainant on 21st September, 1965. It is relevant to set out the sworn statement as much of the argument addressed at the Bar centred round the question whether the Magistrate had taken cognisance of the complaint with a view to taking further action under the Criminal Procedure Code. The statement is as follows; "The contents of this petition are all true and correct. On hearing the words of a Muslim boy I went with ladies in my family and found my brother buried under earth except for the head which had been covered by thorns. I removed thorn and portion of mud. People came there and advised me to inform police. After police were informed my brother was taken to hospital. All the people there removed the mud. Police were examined my brother." After recording the said statement, the Magistrate passed the following Order: "Send the copy of this petition to C.I., Chikmagalur for investigation and report under section 156, Clause (3), Criminal Procedure Code, by sixth October. It is also relevant to observe that no summons were issued to the accused immediately thereafter. The police after investigation submitted a report on 27th November, 1965 along with the case diary. On 7th December, 1965, the learned Magistrate made a further order as follows: "7th December, 1965 case called. Complainant in person. Take the case on file under section 307, Indian Penal Code." Notwithstanding the Order made on 7th December, 1965, the Magistrate proceeded to enquire into the complaint under section 208, Criminal Procedure Code which relates to an enquiry into a proceeding instituted otherwise than on a police report. After enquiry, he made an Order discharging the accused on 19th September, 1966. Against this Order of discharge, the complainant preferred Criminal Revision Petition No. 17 of 1966 before the learned Sessions Judge at Chickmagalur. The learned Sessions Judge without going into the merits of the Order in question, as disclosed by the evidence therein, confined himself to the question of law arising from the procedure followed by the learned Magistrate in making the enquiry under section 208, Criminal Procedure Code. The learned Sessions Judge without going into the merits of the Order in question, as disclosed by the evidence therein, confined himself to the question of law arising from the procedure followed by the learned Magistrate in making the enquiry under section 208, Criminal Procedure Code. On a detailed discussion of the matter he came to the conclusion that the Magistrate took cognisance of the matter only on 7th December, 1965 on the police report, and as such he should have proceeded with the enquiry in accordance with the provisions of section 207-A, Criminal Procedure Code, after directing the police to submit a charge-sheet under section 173 Criminal Procedure Code. In the result, he set aside the order of the learned Magistrate and remanded the matter back to him with directions which have been referred to earlier. Against this Order, the present petition has been presented before this Court by the accused named in the original complaint. The contentions of Sri M. Gopala Krishna Shetty, the learned Counsel for the petitioners are; (1) that the learned Magistrate took cognizance of the complaint on 21st September, 1965 when the complainant was examined on oath, and not on 7th December, 1965 as found by the learned Sessions Judge; (2) that the consequential order made on 21st September, 1965 to the effect that the petition be sent to the Circle Inspector for investigation and report under section 156(3), Criminal Procedure Code was in effect a direction to investigate, issued by virtue of the power conferred by section 202, Criminal Procedure Code. In any event reference to section 156(3) would not make any difference, and does not affect the fact that cognizance of the complaint was taken only under section 202, Criminal Procedure Code; (3) in the alternative, if this Court were to set aside the Order in revision made by the learned Sessions Judge, the order of discharge passed by the learned Magistrate should be allowed to stand. It is hot a case in which this Court should exercise its powers of revision under section 436, Criminal Procedure Code. In elaboration of his contention that the learned Magistrate took cognizance of the case actually on 21st September, 1965 when the complainant’s sworn statement was recorded by him, the learned Counsel for the petitioners relied on a case reported in Jamuna Singh and others v. Bhadai Shah1. In elaboration of his contention that the learned Magistrate took cognizance of the case actually on 21st September, 1965 when the complainant’s sworn statement was recorded by him, the learned Counsel for the petitioners relied on a case reported in Jamuna Singh and others v. Bhadai Shah1. The Supreme Court has observed in the said case as follows: "In the case before us the Magistrate after receipt of Bhadai Shah’s complaint proceeded to examine him under section 200 of the Criminal Procedure Code. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under section 200 of the Criminal Procedure Code puts it beyond doubt that the Magistrate did take cognisance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by section 200 the Magistrate could have issued process at once under section 204 of the Criminal Procedure Code or could have dismissed the complaint under sections 203, of the Criminal Procedure Code. It was also open to him, before taking either of these courses, to take action under section 202 of the Criminal Procedure Code. That section empowers the Magistrate to postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a Police officer or by such other person as he thinks fit for the purposes of ascertaining the truth or falsehood of the complaint." In the same judgment, it is further observed as follows: "We find that in the case before us the Magistrate after completing the examination under section 200 of the Criminal Procedure Code and recording the substance of it made the order in these words: ‘Examined the complaint on solemn affirmation. The offence is cognizable one. To S.I., Baikunthpur for instituting a case and report by 12th December, 1956.‘ If the learned Magistrate had used the words ‘for investigation’ instead of the words ‘for instituting a case’ the order would clearly be under section 202 of the Code of Criminal Procedure. The offence is cognizable one. To S.I., Baikunthpur for instituting a case and report by 12th December, 1956.‘ If the learned Magistrate had used the words ‘for investigation’ instead of the words ‘for instituting a case’ the order would clearly be under section 202 of the Code of Criminal Procedure. We do not think that the fact that he used the words ‘for instituting a case’ makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under section 156(3) of the Criminal Procedure Code. Once however he took cognizance he could order investigation by the police only under section 202 of the Criminal Procedure Code and not under section 156(3) of the Criminal Procedure Code. As it is clear here from the very fact that he took action under section 200 of the Criminal Procedure Code, that he had taken cognizance of the offence mentioned in the complaint, it was open to him to order investigation only under section 202 of the Criminal Procedure Code and not under section 156(3) of the Code. It would be proper in these circumstance to hold that though the Magistrate used the words ‘for instituting a case’ in this order of and November, 1956, he was actually taking action under section 202 of the Criminal Procedure Code, that being the only section under which he was in law entitled to act. It is clear from the above observations of the Supreme Court that once a complainant is examined under section 200, Criminal Procedure Code, it would amount to taking cognisance of the offence mentioned in the complaint. It is further made clear that once such cognizance is taken, if the Magistrate desires to postpone the issue of process for compelling the attendance of persons complained against, he could act only under section 202, Criminal Procedure Code. If the facts of the present case are examined, it will be seen that there is no escape from the conclusion that the Magistrate took cognizance on 21st September, 1965, the date on which the complainant’s sworn statement was recorded. If the facts of the present case are examined, it will be seen that there is no escape from the conclusion that the Magistrate took cognizance on 21st September, 1965, the date on which the complainant’s sworn statement was recorded. It was contended on behalf of the State and the complainant, who is also heard in the matter, that the only effective order which gives an indication as to the mind of the Magistrate was the one made directing the complaint to be forwarded to the Police for investigation under section 156(3). It was contended that in view of this direction for investigation, the Magistrate had really not intended to proceed under Chapter XVI, Criminal Procedure. This argument, according to the complainant, derives further support from the second order passed on 7th December, 1965 taking the case on file under section 307, Indian Penal Code, after the perusal of the police report submitted in compliance with the direction issued on 21st September, 1965 by the learned Magistrate. In view of the conclusion arrived at earlier that the learned Magistrate took cognizance on 21st September, 1965 itself, there cannot be a second order of taking cognizance in the matter. In Jamuna Singh v. Bhadai Shah1, it is stated thus: “Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officer’s report was received.” Hence the contention of the respondent in this regard cannot be accepted. Sri Naranappa the learned Assistant State Public Prosecutor, tried to distinguish this case on the ground that the facts therein were different inasmuch as while making a direction to investigate, section 156(3) was not mentioned by the learned Magistrate in the said case. It makes no difference whether the provision of law is mentioned at all, or rightly or wrongly mentioned. All the same, once a Magistrate takes cognizance in the matter, he could only proceed under section 202, Criminal Procedure Code, if he thinks of postponing the issue of process to the person complained against. This is also clear from the observations of the Supreme Court extracted earlier. All the same, once a Magistrate takes cognizance in the matter, he could only proceed under section 202, Criminal Procedure Code, if he thinks of postponing the issue of process to the person complained against. This is also clear from the observations of the Supreme Court extracted earlier. This Court, in two cases reported in K.B. Subbiah Shetty v. N. Surendra Rao and another2, and B.M. Santhuramasa and others v. State of Mysore3, following the decision of the Supreme Court in Jamuna Singh v. Bhadai Shah1, affirmed the principle enunciated above. If the Magistrate had taken cognizance on 21st September, 1965, he had no alternative but to proceed to enquire into the matter under section 208, Criminal Procedure Code, which prescribes the procedure for an enquiry in a proceeding instituted otherwise than on a police report. Hence, there is no question of Magistrate being required to follow the procedure prescribed under section 207-A, Criminal Procedure Code as directed by the learned Sessions Judge in his Order. In the light of the aforesaid discussion, I am of the opinion that the Order of the learned Sessions Judge made in Crl.R.P.No. 17 of 1966 requires to be set aside. I order accordingly. Sri S.R. Ramanathan, the learned Counsel appearing for the complainant, strenuously contended that the learned Magistrate has exceeded the limits of the judicial discretion vested in him, in the matter of appreciating the evidence under section 209, Criminal Procedure Code. He contended that the learned Magistrate had taken upon himself the functions of a trial Judge and appreciated the evidence although, there was no other view possible on the evidence adduced in this case He relied on a case reported in K.P. Raghavan and another v. M.H. Abbas and another1 in support of his proposition that the learned Magistrate’s order does not satisfy the requirements of the tests for discharging the accused under section 209, Criminal Procedure Code. There appears to be some force in the contention of Sri Ramanathan. There appears to be some force in the contention of Sri Ramanathan. Sri Gopala Krishna Shetty the learned Counsel for the petitioners relying on a decision reported in Thakur Ram and others v. The State of Bihar2, submitted that having regard to the facts and circumstances of the case and the time that has elapsed since the lodging of the complaint, and invited this Court to look into the order as a whole in order to see whether a case for interference under section 436, Criminal Procedure Code had been made out. He further contended that even on the facts disclosed, and assuming them to have been proved, it could never fall under section 307, Indian Penal Code. He also submitted that in any event it would fall under sections relating to some of the minor offences for assault and hurt which are triable by the Magistrate himself. On this assumption, he proceeded to argue that the Magistrate was entiled to appreciate the evidence as he had done by virtue of the provisions of section 253, Criminal Procedure Code which provision would be attracted to the case in case the Magistrate had thought of proceeding to frame charges which are triable by himself by following the procedure prescribed under section 252, Criminal Procedure Code, which prescribed for enquiry in a case instituted otherwise than on a police report. In view of the above submissions, the learned Counsel at the Bar were requested to go through the entire evidence on record, and also the order of the learned Magistrate. On a careful perusal of the order and the evidence let in, it is not possible to come to the conclusion that an offence under section 307 Indian Penal Cade had been made out. The evidence of the Doctor and the Deputy Superintendent of Police who have been examined as P.Ws. 7 and 8 respectively, and who are the only disinterested witnesses in the case, makes it abundantly clear that the victim had not suffered any injuries and that he was lying in a trench covered with earth to a thickness of 3 to 6 inches and that his face, hands and elbows were completely exposed. In these circumstances, the examination of the evidence by the learned Magistrate cannot be said to have exceeded the jurisdiction vested in him under section 253, Criminal Procedure Code. In these circumstances, the examination of the evidence by the learned Magistrate cannot be said to have exceeded the jurisdiction vested in him under section 253, Criminal Procedure Code. I am of the opinion that a prima facie case for an offence under section 307, Indian Penal Code, is not made out on the facts alleged and the evidence let in, even after an examination of the same in the light of the provisions of section 209, Criminal Procedure Code. It is also apparent from the order that the learned Magistrate has also examined the entire matter from the point of view of finding out whether any offence which would be triable by himself had been made out. Hence, the discussion of the evidence in the order is clearly referable to his intention to examine the evidence in exercise of the powers vested in him under section 253, Criminal Procedure Code. Section 253 Criminal Procedure Code, prescribes a test as to the circumstances under which an accused could be discharged. It enjoins that the accused would be entitled to a discharge, if on an examination of the evidence and statement of the accused no case had been made out which, if unrebutted, would warrant his conviction. This test is wide enough to vest a discretion in the Magistrate to appreciate the evidence as has been done in the present case. No other reason was brought to my notice which impels me in any manner to interfere with the order of discharge passed by the learned Magistrate. In the result, this revision petition is allowed and the order of the learned Sessions Judge, in Crl.R.P. No. 17 of 1966 is set aside. The order of discharge passed by the learned Magistrate is restored. S.V.S. ----- Petition allowed.