Judgment : 1. Pran Kumar Mandal has sought to invoke this court’s jurisdiction u/s 438 Cr. P.C. on the ground that he is being wanted by the police in connection with Burdwan P.S. Case No. 753/09 dated 22/11/09 under sections 498A/ 307/306/304B/354/420/379 IPC. 2. On perusal of the relevant CD it is found that one Santana Mondal @ Jhuma Kundu filed an application u/s 156(3) Cr. P.C. against her husband, the present petitioner and her in-laws alleging inter alia that her husband frequently used to hurl abusive and obscene languages and also to assault her regularly under the influence of liquor. Her mother-in-law also instigated her to commit suicide by setting fire on herself. She was treated with cruelty and even denied food by her husband now and then. Ld. C.J.M. Burdwan asked ‘I.C. Burdwan to treat the same as FIR’. On receipt of such petition of complaint Burdwan P.S. Case No. 753/09 dated 22/11/09 under sections 498A / 307 / 306 / 304B /354 /420 /379 IPC was registered. In course of investigation I.O. examined three witnesses i.e. the parents of the victim and landlord of the rented premises where the victim used to reside with her husband. 3. On appreciation of entire materials on record as are available in the CD in the light of submissions advanced by both sides, we do not find any reason to refuse the prayer for anticipatory bail. 4. We, therefore, feel inclined to extend the benefit of anticipatory bail in favour of the petitioner. Accordingly, accused petitioner Pran Kumar Mandal may be admitted on anticipatory bail on furnishing sufficient sureties on the following conditions:- (i) the Petitioner shall make himself available for interrogation by the Investigating Agency once a week until further order. (ii) He shall not leave the jurisdiction of Burdwan Police Station without the leave of the ld. C.J.M, Burdwan. (iii) No direct or indirect threat or any inducement would be made to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any Police Officer. (iv) The Petitioner must submit to the jurisdiction of the Regular Court within a period of four (4) weeks. 5. (iii) No direct or indirect threat or any inducement would be made to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any Police Officer. (iv) The Petitioner must submit to the jurisdiction of the Regular Court within a period of four (4) weeks. 5. Upon his surrender before the learned Court below, the learned Magistrate shall consider the prayer for bail of the Petitioner on the basis of the materials available against him as on that date without being guided by the disposal of this application. 6. In course of hearing of this prayer for anticipatory bail a grim, nay-dismal picture about the mode of discharge of magisterial function emerges and after noticing the same, we feel it imperative on this occasion to streamline the function of magisterial courts while exercising power u/s. 156 (3) Cr. P.C. 7. Burdwan P.S. Case No. 753/09 dated 22/11/09 under sections 498A / 307 /306 /304B /354 /420 / 379 IPC against the accused petitioner & others was registered by Sri Nepal Chandra Roy S.I. Burdwan P.S. on 22.11.2009 as a fall- out of a direction passed by the ld. C.J.M. Burdwan for treating the petition of complaint as FIR without proper application of a judicial mind. In our reading of the petition of complaint, filed before the ld. CJM Burdwan it is found that ingredients of offences u/s. 306/304B IPC are totally absent within the four corners of the said complaint. 8. It is most unfortunate that ld. CJM has not cared to have even a cursory glance over the averments of the petition of complaint prior to sending the same to I.C. Burdwan PS directing him to treat the same as FIR. Even though, the victim wife herself is the de-facto complainant, surprisingly enough the petition of complaint u/ss 498A / 307 /306/304(B)/354/420/379 IPC, without having elements of offences u/s 306/304(B) IPC has mechanically been forwarded by the ld. CJM Burdwan to the O.C. Burdwan P.S. for its registration. Since, the victim wife herself lodged the complaint and she is alive, it is beyond comprehension even for a prudent man as to how ld. C.J.M. is legally and factually permitted to direct registration of a Police Case u/ss. 306/304B IPC. Such a baffling situation is really inexplicable. CJM Burdwan to the O.C. Burdwan P.S. for its registration. Since, the victim wife herself lodged the complaint and she is alive, it is beyond comprehension even for a prudent man as to how ld. C.J.M. is legally and factually permitted to direct registration of a Police Case u/ss. 306/304B IPC. Such a baffling situation is really inexplicable. This is a case of sheer non-application of mind in a highly negligent manner on the part of the ld. CJM Burdwan. 9. It is also distressing to note that ld. CJM Burdwan passed the following incomplete order in a very casual fashion on the petition of complaint itself:- “I/C BWN PS is to treat the same as FIR SEEN CJM BWN.” There is no reflection in the afore-mentioned cryptic order that investigation was, in fact, ordered in terms of section 156 (3) Cr. P. C. We fail to understand as to how the ld. Magistrate passed a discretionary order on the petition itself in such a lackadaisical manner without maintaining any order-sheet as required under the relevant rules of criminal Rules and Order volume 1 (for short – Cr. R.O.) 10. In this context we would refer to R. 179 and Note - 1 of Cr. R. O. which read as under: R. 179 – “An endorsement in the prescribed form shall be attached to the record of every case and all orders passed by the court shall be recorded thereon.” Note – (1) “Order shall never be written on any petitions,, returns, records and other similar documents.” 11. It is, therefore, highly irregular and improper on the part of the ld. Magistrate to pass such an order exercising his judicial discretion on the petition. He has thus contravened the afore-mentioned rules of the Cr. R. O. since passing of such order on the petition is strictly prohibited under Note – 1 to R 179 of the Cr. R. O. and he is required to maintain order-sheet in the prescribed form as per R. 179 Cr. P.C. 12. In this context it would be appropriate to examine the scope and content of section 156 (3) Cr. P.C. A plain reading of section 156 (3) Cr. P.C. indicates that the Magistrate empowered u/s 190 Cr. P.C. may order an investigation into any cognizable offence by any officer – in – charge of a Police Station. In the instant case, however ld. P.C. A plain reading of section 156 (3) Cr. P.C. indicates that the Magistrate empowered u/s 190 Cr. P.C. may order an investigation into any cognizable offence by any officer – in – charge of a Police Station. In the instant case, however ld. magistrate has simply directed I.C. Burdwan P.S. to treat the petition of complaint as an FIR. Accordingly, the present case has been registered. But there is no reflection from the order under reference that the ld. magistrate also directed an investigation of the case in exercise of power vested upon him u/s 156(3) Cr. P.C. Such incomplete order passed by the ld. Magistrate appears to be not in consonance with the letter and spirit of the section itself. It is also incumbent upon the ld. Magistrate at that stage of sending the petition of complaint to pass necessary direction not only for its registration but also for its investigation as contemplated u/s. 156 (3) Cr. P.C. He has thus failed to pass a composite order u/s. 156 (3) Cr. P.C. for both its registration and investigation by the Police as mandated u/s. 156 (3) Cr. P.C. 13. It is, in fact, a settled proposition of law that on receipt of a complaint, the ld. Magistrate has to apply his judicial mind to allegations in the complaint and to take a decision as to whether he would proceed at once to take cognizance of the offence in terms of section 190 Cr. P.C. or order for an investigation u/s 156 (3) Cr. P.C. Any order directing registration of case and its police investigation must indicate application of judicial mind. It should be borne in mind that order u/s. 156 (3) Cr. P.C. directing the police to register and investigate the case has the complexion of a judicial order which is open to challenge under the Code itself. 14. In the case in hand it is needless to mention that even a bare perusal of the petition of complaint itself, which has subsequently been treated as an FIR, reveals that there is no story of commission of suicide by the victim wife and naturally there is also no allegation of abatement for commission of such suicide. Similarly, ingredients of an offence section 304 (B) IPC are conspicuous by their absence. Similarly, ingredients of an offence section 304 (B) IPC are conspicuous by their absence. There is nothing on record within the four corners of the complaint that there was any allegation of death of the victim caused by burn or bodily injuries or occurred otherwise than in normal circumstances within seven years of marriage. There is, undoubtedly, a story of her being subjected to cruelty and harassment by her husband or any relative of her husband preceded by a demand for dowry. But there is no allegation of dowry death for the simple reason that the victim wife is alive. 15. In such circumstances we fail to understand as to how offences u/ss 306/304(B) IPC can be attracted and on what basis ld Magistrate directed registration of Police Case u/s. 306 / 304(B) IPC in addition to other relevant penal section of IPC. Ld. Magistrate has thus acted in a highly irresponsible manner while discharging his magisterial function involving exercise of judicial discretion. 16. Against such factual backdrop it is reiterated that in an application praying for police investigation of a case disclosing commission of cognizable offence it cannot be said that the ld. Magistrate has no option but to order for registration and investigation. Relying upon a ruling of the Hon’ble Apex Court reported in AIR 2005 SC 2005 ( Ram Swarup, Appellant Vs. Mohd. Javed Razack and Anr. Respondents), it is held that forwarding complaint to the police for investigation is not necessary in every case, if prima facie offence is made out, cognizance can easily be taken by the ld. Magistrate himself. However at pre-cognizance stage Magistrate can direct investigation u/s 156(3) Cr. P.C. (vide AIR 2001 SC 571 Suresh Chanda Jain, Appellant Vs. State of M.P. and Anr., Respondents). Such being the present position of law, it is incumbent upon the ld. Magistrate to apply his judicial mind to the allegations levelled in the petition against the accused persons and, thereafter, he has to make his wise decision by making best use of judicial discretion vested upon him as to whether such petition of complaint should be sent to the police station directing Officer –In – Charge, for its registration and investigation in terms of section 156 (3) Cr. P.C. or to take cognizance of the offence as alleged and to examine the witnesses and also to take appropriate steps in this regard within the framework of Criminal Procedure Code. 17. In the instant case, as already discussed earlier, ld. magistrate passed an incomplete order on the mergin of the petition of complaint itself mechanically and forwarded the said complaint even without going through its contents. It is not clear to us as to how the ld magistrate can direct registration of a case u/s 306 / 304 (B) IPC against the husband and in-laws whenever the victim wife herself appears before the ld. magistrate as a complainant. 18. It is therefore, writ large on the face of the petition of complaint that the ld Magistrate has not even bothered to examine as to whether penal sections given in the complaint are attracted on the face value of allegations. This negligent attitude on the part of the ld. Magistrate inevitably resulted in registration of Police case even u/s. 306 /304 (B) IPC against the accused person to their harassment even though both the penal sections are mutually exclusive and there is nothing on record to substantiate the elements of either section 306 IPC or section 304 (B) IPC. 19. In that view of the matter we feel inclined to hold that the ld. magistrate has failed to exercise judicial discretion vested upon him with utmost circumspection and this has, undoubtedly, resulted in miscarriage of justice. We are, therefore, of the considered view that prior to sending any such petition of complaint for its registration and investigation u/s 156 (3) Cr. P.C. it is obligatory for the ld. Magistrate to go through the petition of complaint and to apply his judicial mind as to whether it would be fit and proper on the basis of allegations made therein to register a police case and to investigate the matter u/s 156 (3) Cr. P.C. for an appropriate and effective investigation into the allegations made in the petition of complaint. There are cases where under compelling circumstances, police investigation is absolutely necessitated for recovery of incriminating articles like weapon of murder and materials e.g. blood stained wearing apparels of the deceased or assailants and also for collecting medical papers, PM Examination Report etc. P.C. for an appropriate and effective investigation into the allegations made in the petition of complaint. There are cases where under compelling circumstances, police investigation is absolutely necessitated for recovery of incriminating articles like weapon of murder and materials e.g. blood stained wearing apparels of the deceased or assailants and also for collecting medical papers, PM Examination Report etc. (such list is merely illustrative not exhaustive) in case of allegation of very serious offences and in some other cases of similar nature. In such types of cases Police investigation should necessarily be ordered in exercise of power u/s 156 (3) Cr. P.C. But in other cases by exercising his judicial discretion, if the ld. Magistrate is of the opinion that the police investigation is not necessitated in view of nature of allegations made in the petition of complaint, he should be prompt enough to take cognizance and to examine witnesses etc. and thereafter, to issue process in appropriate cases. 20. It is, therefore, made absolutely, clear that on receipt of a petition of complaint u/s 156 (3) Cr. P.C. ld. Magistrate is required to weigh both the options and, thereafter, exercise his judicial discretion in this way or that way by examining the nature of allegations as is available at that stage from the petition of complaint. It is not the spirit of the relevant provision of law as enshrined u/s 156 (3) Cr. P.C. that in every case ld Magistrate would simply forward the petition of complaint directing its registration and investigation without even applying his judicial mind to the allegations levelled against the accused persons. More so, whenever, it is settled position of law that mere allegations without any supporting materials would not justify order for investigation u/s 156 (3) Cr. P.C. 21. In fact, the scope of powers available to the ld Magistrate u/s. 156 (3) Cr. P.C. is limited. Exercise of such power is restricted to the extent that after ensuring compliance with section 154 (3) Cr. P.C., if the ld. Magistrate is satisfied without taking cognizance that there are materials in respect of allegations made in the petition of complaint, he could then only pass directions or order in terms of section 156 (3) Cr. P.C. On the contrary, ld. Magistrate need not order any such investigation if he proposes to take cognizance of the offence. P.C., if the ld. Magistrate is satisfied without taking cognizance that there are materials in respect of allegations made in the petition of complaint, he could then only pass directions or order in terms of section 156 (3) Cr. P.C. On the contrary, ld. Magistrate need not order any such investigation if he proposes to take cognizance of the offence. But once he takes cognizance of the offence he is to follow the procedure envisaged in chapter XV of the Code. 22. In the light of foregoing discussions it is held that even for ordering investigation by police u./s 156 (3) Cr. P.C. the ld. Magistrate cannot act merely as a post office and he is to apply his judicial mind before doing so. 23. It is, however, within the absolute discretion of the ld. Magistrate as to whether he would exercise the power vested upon him u/s. 156 (3) Cr. P.C. at pre-cognizance stage after taking into consideration the allegations made in the petition coupled with relevant supporting materials thereto. There is no scope to exercise such discretion arbitrarily without any application of judicial mind. Rather, discretion in this regard is to be exercised judiciously either at pre-cognizance or post –cognizance stage as the case may be. CD be returned The Criminal Misc. Case thus stands disposed of.