1. The petitioner is the Mukhiya of Kabirpur Gram Panchayat in Siwan sub-division of the former district of Saran. He has filed this application under Section 561-A of the Code of Criminal Procedure, hereinafter referred to as the “Code” for quashing the order of the learned Sub-divisional Magistrate dated the 30th September, 1972. passed on a complaint presented to him by Shri Muni Shankar Singh, the Prakhand Vikas Padadhikari (P.V.P) of Mairwa Block.

2. The substance of the aforesaid complaint petition is that the P.V.P had visited village Kabirpur along with (i) Shri R.C Sahai. Anchal Adhikari, Mairwa. (ii) Shri Kishun Lall. Jeep driver, (iii) Shri Shyam Bihari Singh Block Agriculture Officer and (iv) Shri Ramji Rai, a resident of village Barka Manjha at about 3 P.M on the 30th September, 1972. The purpose of his visit was to inspect the work of repairs of Nehru Path which was in progress under H.M.L (Hard Manual Labour) Scheme No. 14 of 1972-73. When the P.V.P and others reached the scheme site, the village Level Worker. Shri Narendra Prasad, who was incharge of supervision of the scheme, turned up. Thereupon the P.V.P took from the possession of the V.L.W the muster roll which was to be maintained daily showing regular payment to the labourers engaged in the scheme at the prescribed rate and began to verify the payments shown therein by enquiry from the labourers. Certain discrepancies and under payments were narrated by a labourer whereupon the Mukhiya. Pandit Shiva Shiv Prasad Shukla. (the petitioner), who was present at the scheme site from before along with the V.L.W, interfered with, the work of verification which was being done by the P.V.P and began to abuse him filthily and also tried to snatch away the muster roll from his hand. The P.V.P however, did not allow the Mukhiya to snatch away the register, whereupon the Mukhiya threatened to kill him in case he did not return the register and left the site immediately. The Mukhiya further said that the action of the P.V.P in attempting to verify the payments etc. would not only ruin him but would also ruin his V.L.W as the latter was the spot officer. The V.L.W actively supported the actions of the Mukhiya. The face of the Mukhiya had become red. The Mukhiya raised his hand and actually gave one slap to the P.V.P Some of the labourers working on the scheme began to take sides with the Mukhiya. Thereupon on apprehending more trouble and danger to his life, the P.V.P left the scheme site and went straight to the Sub-Divisional Magistrate (to file this complaint).

3. The petition of complaint also contained certain details relating to the agreement of the scheme which was estimated to cost Rs. 5,000/- and which had been entered into on the 4th September. 1972, by Shri Raghubar Prasad Shukla, a co-villager and relation of the Mukhiya, at the recommendation of the Mukhiya himself. It was stated that in the agreement it was provided that the executing agent Shri Raghubar Prasad Shukla would pay to the labourers at the rate of Rs. 25/- per thousand cubic feet of earth work and would get as his commission 3 per cent of the cost of the work done. But the head-man in collusion and pre-agreement with the Mukhiya and the V.L.W had resorted to under-payment to labourers, flouting the terms and conditions of the agreement. The executing agent himself was absent from the scheme site and the execution and payment were being done under the direct control of the Mukhiya and the V.L.W indicating that the executing agent, the Mukhiya and the V.L.W were all in collusion and concert with. one another to commit criminal breach of trust in respect of Government money entrusted to them for being spent according to the terms and conditions of the agreement.

4. The complaint petition further recited that at the time of the Verification made by the P.V.P, the names of Sukhdeo, Surajibali, Deodhar, Jangi Lal and other labourers, who were working at the scheme since 27-9-1972. were shown in the muster-roll as working from 30-9- 1972. indicating thereby that the muster roll maintained by the executing agent, the Mukhiya and the V.L.W was false and fabricated and such a fabricated document had been produced before the P.V.P who had gone to the spot in the capacity of the inspecting officer. It was further stated that full details of the allegations against the Mukhiya and others would be apparent from the muster-roll which the P.V.P had seized at the spot and was being placed before the Sub-Divisional Magistrate for perusal. It was also indicated that besides the labourers working on the scheme, there were many other persons of the locality who were present at the place of the occurrence and their names could be found out if an enquiry was made. The concluding paragraph of the complaint petition was in the following terms:

“From the facts stated above, a case u/s. 353, 332, 506, 409, 467, 468, 471 read with Section 34 of the I.P.C are made out against 1. Shri Raghubar Prasad Shukla, 2. Shri Shiva Shiv Prasad Shukla, 3. Shri Narendra Pd., V.L.W It is requested that immediately legal necessary action may be taken against them treating it as a complaint, otherwise, it would be difficult to perform Govt, duties properly in the area.”

5. On receipt of this complaint, Shri N.K Agarwal, the Sub-divisional Magistrate, recorded the following order on the margin of the complaint petition on the same day, that is, September 30, 1972:

“Officer in charge

Mairwa P.S

Perused the complaint. Institute a case against the accused persons under Sections 353, 332, 506, 409, 468, 471 read with Section 34 of the I.P.C and report compliance.

The necessary investigation may be taken up at once.”

6. This is the impugned order, a copy of which is Annexure “1A” to the present application.

7. It has been stated in the present application that on or about the 10th October, 1972. the Investigating Officer had prayed for issue of a warrant of arrest against the petitioner and others, whereupon the learned Sub-Divisional Magistrate has been pleased to issue warrant of arrest against the petitioner. It has further been stated that the petitioner has learnt that the Investigating Officer has also prayed for issue of processes against the petitioner under Sections 87 and 88 of the Code and the same has either been issued or is likely to be issued soon in the name of investigation. According to the petitioner, the impugned order is wholly without jurisdiction, and so are the subsequent actions taken against the petitioner. It has, therefore, been prayed that the order passed by the learned Sub-Divisional Magistrate on the 30th September, 1972 upon the complaint petition filed by the P.V.P should be quashed and meanwhile the execution of warrant of arrest and processes under Sections 87 and 88 of the Code issued against the petitioner should remain stayed.

8. One of the main grounds upon which the impugned order has been assailed before me is that Section 84A of the Bihar Panchayat Rai Act, 1947. precluded the Sub-Divisional Magistrate from taking any action against the petitioner in the absence of the previous sanction of the State Government or of the prescribed authority. Section 84A. in so far as it is relevant for the present purpose, is in the following terms:

“When the ‘Mukhiya’………… is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of the offence except with the previous sanction of the Government or such other authority as may be prescribed.”

9. Mr. Jay Narayan appearing in support of this application has argued that the action of the Sub-Divisional Magistrate indicated in the impugned order amounted to taking cognizance of certain offences alleged to have been committed by the petitioner while acting or purporting to act in discharge of his official duties as Mukhiya of Kabirpur Gram Panchayat and since such an action has been taken without requisite sanction, it must be quashed. Learned counsel has further argued that on receipt of the complaint which had been presented to him by the P.V.P who is a public servant, the Sub-Divisional Magistrate could only have proceeded in accordance with the provisions contained in Chapter XVI of the Code, but the learned Sub-Divisional Magistrate felt that he was not in a position to take cognizance of the alleged offence against the petitioner in the absence of the requisite sanction envisaged by Section 84-A of the Bihar Panchayat Rai Act and therefore, he took recourse to the provisions contained in sub-sec. (3) of Section 156 of the Code, whereunder he directed the police to institute a case and to proceed with the investigation. According to Mr. Java Narayan for the same reason that the learned Magistrate could not take cognizance of the alleged offences said to have been committed by the petitioner, he also could not pass any order in terms of Section 156(3) of the Code. Alternatively, learned counsel has put forward the contention that when a complaint petition is presented to the Sub-Divisional Magistrate, he cannot decline to proceed in accordance with Chapter XVI of the Code and instead direct the police to institute a case and submit a report to him after investigation.

10. I will first deal with the contention of the learned counsel on the basis of Section 84-A of the Bihar Panchayat Raj Act. For that section to apply it is necessary that the offence or offences alleged to have been committed by the petitioner were offences of the category envisaged in that section, that is to say, offences committed by the petitioner in the capacity of a Mukhiya while acting or purporting to act in the dicharge of his official duties. A reference to the various provisions of the Panchayat Raj Act will show that the official duties of a Mukhiya fall within two categories which may be designated as (i) his statutory functions, and (ii) his other functions. Under Section 9 of the Act the executive functions of the Gram Panchayat have to be performed by an Executive Committee of which the Mukhiya is the head. Under sub-sec. (i) of Sec. 11-A, it is open to the Mukhiya with the approval of the Executive Committee to delegate all or any of his duties and powers to the Up-Mukhiya and at any time with the like approval to withdraw or modify the same. Sections 14 and 15 of the Act deal respectively with the compulsory and supplementary duties of the Gram Panchayat. Section 19 deals with the powers of the Executive Committee relating to the control, maintenance and repairs of all public streets and water-ways other than canals. Under Ss. 20 and 21, the Executive Committee may by notice, require the owner or occupier of a private water-course spring, tank, well, embankment or other place and premises to keep than in good repair to clean them from time to time to protect them from pollution, or to maintain them free from water hyacinth or any other water weed, and in the event of such person not complying with the direction of the Executive Committee, to impose a fine upon him as well as a continuing fine.

11. Similar powers are vested in the Executive Committee under Sections 23 and 24 of the Act for taking actions against the persons who fail to comply with its requisitions for carrying out certain works and for making constructions contrary to an approved model plan for the village. Section 28 invests the Mukhiya with certain powers to be exercised on the occasion of an emergency. Under sub-section; (2) of Section 32, it is competent to the Mukhiya to make a report to the proper authority upon a complaint received from any person residing within the limits of the Gram Panchayat about any misconduct or negligence in the discharge of official duties on the part of any village officer, constable, vaccinator, Karamchari, canal-patrol or peon in the employ of the Government.

12. Apart from these statutory functions, the Mukhiya has to perform certain other functions as contemplated by Sections 31 and 48-B of the Act. Since the argument of Mr. Jaya Narayan is founded upon such other functions of the Mukhiya in the context of Section 84-A of the Act, Sections 31 and 48-B may be quoted in extenso:

“31. Any officer of the Central or State Government may if so authorised by the Government, by general or special, order, require a ‘Mukhiya’ to assist him in the performance of his duties within the local limits of his jurisdiction and the ‘Mukhiya’ shall thereupon assist him so far it lies in his power.” “48-B. The ‘Mukhiya’ and the Executive Committee shall carry out such directions as may be issued from time to time by the Government or the prescribed authority in respect of duties and functions imposed upon or undertaken by a ‘Gram Panchayat’. by or under this Act.”

13. Learned counsel says that under certains general orders or circulars of the State Government, directions have been issued from time to time to the Mukhiya and the Executive Committee of every Gram Panchayat not merely to assist the concerned Officers of the Government in the performance of their duties in relation to execution of schemes like the Hard Manual Labour Scheme, with which we are concerned in the present case, but also to perform certain functions of their own in relation to such a scheme.

14. According to the learned counsel even apart from such directions and circulars of the State Government the complaint petition itself shows that the Mukhiya had a vital role to play in relation to the repairs of the Nehru Path to which the H.M.L Scheme No. 14 of 1972-73 related. It is painted out that in the complaint petition the V.L.W was described as being incharge of supervision of the scheme, indicating thereby that the Mukhiya under whom the V.L.W was functioning had been invested with general powers of supervision over the execution of the scheme. It is further pointed out that according to the complaint petition the Mukhiya and other authorities of the Gram Panchayat had been entrusted with Government money for the purpose of being spent in paying to the labourers employed in the scheme in accordance with the terms of the agreement entered into by the executing agent. My attention was pointedly drawn to the following passage of the complaint petition:

“The actual man executing the agreement was at the time of inspection absent from P.O and the execution and payment was being done under the direct control of the Mukhiya and the V.L.W which manifests that the executing agent, the Mukhiya and the V.L.W were all in collusion and concert with one another to commit criminal breach of trust, in respect of the Govt, money entrusted to them for being spent according to the terms and conditions of the agreement.”

15. I am inclined to accept the contention of Mr. Java Narayan that as the Mukhiya the petitioner had to supervise the execution of the scheme and to ensure that the Government money placed at his disposal or under his control was, spent in accordance with the terms and conditions of the agreement of the scheme, and that in discharge of such duties enjoined upon the petitioner, he was acting or purporting to act in the discharge of his official duties as the Mukhiya. I am however, unable to accept the further contention of Mr. Jaya Narayan that all the various acts attributed to the petitioner in the petition of complaint fall within the ambit of his official act. For example, the allegations contained in the complaint petition to the effect that the petitioner had abused the P.V.P in filthy language, that he had threatened to kill him if he did not return the register and that he gave one slap to the P.V.P are acts which by no stretch of imagination could fall within the purview of the official duties of the petitioner as a Mukhiya. Even the alleged offence of criminal breach of trust attributed to the petitioner cannot fall within the ambit of an act which the petitioner could have committed in the discharge or purported discharge of his official duties as a Mukhiya. I would refer to two decisions of the Supreme Court in this context.

16. In Bhagwan Prasad Srivastava v. N.P Mishra ((1970) 2 SCC 56 : AIR 1970 SC 1661) : (1970 Cri LJ 1401). the Civil Assistant Surgeon of Chapra Sadar Hospital had filed a complaint against the Civil Surgeon and a cook attached to the Sadar Hospital alleging that the Civil Surgeon had used defamatory language towards him and both the accused persons had insulted and humiliated him in the eves of the public. The facts were that some cataract operations were to be performed on January 7, 1964, and for this purpose the complainant was making final selection of the patients for the cataract operations to be performed on the following day. In the meantime the Civil Surgeon asked the complainant to arrange for cataract knives from somewhere. The complainant requested the Civil Surgeon to place orders for the knives with some local firm and to give him the necessary letter of authority so that they could be purchased on credit. The Civil Surgeon did, not like this suggestion. He got enraged and told the complainant in an insulting tone and language that it was his job to arrange for the knives and that as a last resort he might bring his own knife. The complainant repeated his suggestion adding that in the alternative a man might be deputed to Patna to make local purchases, On this the Civil Surgeon again addressed the complainant in highly defamatory language in the presence of the hospital staff and the attendants. On January 7, 1964. at about 9 A.M the complainant was in the operation theatre. Some members of the hospital staff and some attendants of the patients were waiting outside the operation theatre. The Civil Surgeon, came there and asked the complainant, whether he had brought two more knives from somewhere. The complainant replied that in the absentee of the Civil Surgeon's final order, the two knives could not be arranged from the local market. The Civil Surgeon again got annoyed and addressed the complainant in insulting tone and defamatory language. Not satisfied with the use of such language the Civil Surgeon ordered the cook of the Hospital “to turn out this badmash”. whereupon the cook pushed, out the complainant from the operation theatre.

17. Upon such facts, the question that fell for decision was whether the sanction of the requisite authority under Sec. 197 of the Code was necessary before trial Court could have taken cognizance of the complaint. Their Lordships pointed out that in construing Section 197 of the Code, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties, and that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim that he did it in course of the performance of his duty. Their Lordships further observed:

“The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. In the present case the alleged offence consists of the use of defamatory and abusive words and of getting the complainant forcibly turned out of the operation theatre by the cook. There is nothing on the record to show that this was a part of the official duty of the appellant 39 Civil Surgeon or that it was so directly connected with the performance of his official duty that without so acting he could not have properly discharged it.”

18. Mr. Java Narayan has fairly conceded that the protection afforded to a Mukhiya under Section 84-A of the Bihar Panchayat Raj Act is not higher ‘than, but analogous to the protection afforded to a public servant under Section 197 of the Code. Therefore, even though the petitioner may have been discharging any of his official duties as Mukhiya of his Gram Panchayat in relation to the H.M.L Scheme in question, it is difficult to imagine that the alleged acts of interfering with the work of verification which was being done by P.V.P and of abusing him filthily and giving him one slap were acts which constituted a part of Mukhiya's official duties or were so directly connected with the performance of his official duties that without indulging in such acts, he could not have properly discharged his own duties. Therefore for the prosecution of the petitioner for offences under Sections 353, 332 and 506 of the Indian Penal Code alleged to have been committed by him no sanction of the requisite authority under Section 84-A of the Act could have been necessary.

19. The other decision of the Supreme Court to which I shall refer at this stage is Baijnath v. State of Madhya Pradesh (AIR 1966 SC 220) : (1966 Cri LJ 179). There the question arose whether the sanction of the State Government was necessary for, the prosecution of a public servant in respect of offences under sections 409 and 477-A of the Penal Code. Dealing with this question, Ramaswami, J. speaking for the majority observed at page 227 as follows:

“It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties: but if the act complained of is directly connected with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary”

20. His Lordship further observed:

“An offence may the entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”

21. Applying this principle, their Lordships held that the sanction of the State Government for the prosecution of the public servant concerned under Section 409 of the Indian Penal Code was not necessary.

“Because the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in the discharge of his official duties and that offence has no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or an opportunity of committing the offence”.

22. With regard to the other charge under Section 477-A of the Indian Penal Code, it was held that the legal position was different and the sanction of the State Government was necessary because it was committed by the public servant concerned within the scope of his official duties though in dereliction of them.

23. Applying the same principles to the instant case. I am of the opinion that in regard to the alleged offence under Section 409 of the Indian Penal Code, if not also to the offences under Sections 467, 468 and 471 of the Code, no sanction for the prosecution of the petitioner under Section 84-A of the Bihar Panchayat Raj Act could have been necessary because the acts constituting such offences could have no connection with the duties of the petitioner as a Mukhiya and on the other hand, his official status only furnished him with an occasion or opportunity of committing these alleged offences. For these reasons I am unable to accede to the contention of Mr. Jaya Narayan that Section 84-A of the Bihar Panchayat Raj Act, 1947. was attracted to the facts and circumstances of the present case. It is also not possible to accept the contention of the learned counsel that the learned Sub-Divisional Magistrate had taken recourse to the provisions contained in sub-section (3) of Section 156 of the Code because he felt that he was not in a position to take cognizance of the alleged offences against the petitioner in the absence of a sanction envisaged by Section 84-A of the Act.

24. I now turn to the next contention of Mr. Jaya Narayan which is to the effect that on receipt of the complaint, the Sub-Divisional Magistrate had no option but to proceed under Chapter XVI of the Code and that he had no power to make an order in terms of Section 156(3) of the Code. In support of his contention Mr. Jaya Narayan has strongly relied upon the decision of the Supreme Court in A.C Aggarwal v. Mst. Ram Kali (AIR 1968 SC 1) : (1968 Cri LJ 82). where it was held that under Section 190(1)(b) of the Code, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. It was further held that the words “may take cognizance” in the context mean “must take cognizance” so that he has no discretion in the matter, otherwise the section would be violative of Article 14 of the Constitution. The facts there were that a Police report was submitted to the Sub-Divisional Magistrate of Delhi which disclosed the commission of offences punishable under Section 3 (for keeping a brothel or allowing a premises to be used as brothel) and Section 7 (for prostitution in or in the vicinity of certain types of public places) of the Suppression of Immoral Traffic in Women and Girls Act. 1956. But the Sub-Divisional Magistrate did not take cognizance of these offences and only proceeded to act under S. 18 of the Act under which he issued notice to the persons complained against to show cause why the premises in question should not be attached for improper user thereof. Upon the validity of the action taken under Section 18 of the Act being challenged, their Lordships examined the purpose of the relevant provisions as well as the scheme of the Act and held that since the report made by the Police disclosed offences under Sections 3 and 7 of the Act, it was not right for the Sub-Divisional Magistrate merely to take recourse to Section 18 of the Act which was in the nature of a preventive measure.

25. It was further held that under the scheme of the Act it was necessary for the Sub-Divisional Magistrate, acting as a Court, first to proceed against the persons complained against under the penal provision of Section 3 or Section 1 of the Act as the case might be and only after the conclusion of a regular trial, it would (be open to him to take action under Section 18, if there was occasion for it It was in this context that their Lordships held that the Sub-Divisional Magistrate was bound to take cognizance of the cognizable offences brought to his notice in the police report. Therefore, this decision was given in the context of the special provisions and scheme of the Act of 1956 so that it cannot be construed as laying down that in every case in which a cognizable offence is brought to the notice of the Magistrate, he must first take cognizance of such offences. It will be observed that even in Mst. Ram Kali's case, AIR 1968 SC 1 : (1968 Cri LJ 82) (supra), their Lordships had indicated that if the cases have been investigated into by an officer mentioned in Section 13 of the Act there would be no difficulty for the Magistrate to take cognizance of those cases, otherwise it would be open to him

“to direct fresh investigations by competent police Officers before deciding whether the facts placed before him disclose any cognizable offence.”

26. Apart from the fact that Mst. Ram Kali's case (supra) does not decide how a complaint is to be dealt with, there are seve ral other decisions to the effect that the Magistrate to whom a complaint is presented is not debarred from exercising his power under Section 156(3) of the Code in a case regarding which a complaint has been presented to him.

27. I will first refer to the Bench decision of the Calcutta High Court in Bissen Singh v. Parmeswari Singh, AIR 1950 Cal 99 : (51 Cri LJ 457). There it was held that when a complaint is filed before a Magistrate, he can adopt one of three courses. He can examine the complainant upon oath and then issue processes, or he can postpone the issue of processes and direct an enquiry under section 202 of the Code or he can send the, complaint to the police asking them to take action under Section 156(3), In the last contingency, the Magistrate will not examine the complainant, but merely forward the complaint to the police for investigation and taking cognizance. Harries C.J who delivered the judgment in Bissen Singh's case referred to another Bench decision of the same Court namely Pullin Behari Ghose v. The King ((1949) 53 Cal WN 653). wherein it was held that when a complaint is filed before a Magistrate he should either take cognizance of it under Section 200 of the Code and proceed under Chapter XVI or send the complaint to the Officer-in-charge of the police station directing him to proceed under Chapter XIV of the Code. But he should not make a hybrid composite order, both under Section 156(3) and under Section 202 of the Code.

28. In Asha Das v. The State (AIR 1953 Assam 1) : (1953 Cri LJ 168). the Magistrate on receiving the complaint and after examining the complainant did not issue processes for the attendance of the accused, but directed the police to register a case and investigate it. In the context of these facts it was held that a Magistrate has the power to order the Police to investigate cognizable cases under Section 156(3), but this power must be exercised before taking cognizance of the complaint under Section 190(1). After taking cognizance under Section 190(1)(a), his powers are confined to the limits imposed (upon them under Section 202 and though he may in the exercise of those powers direct the police to investigate and submit a report, the cannot direct the Police to investigate and submit a charge-sheet under Section 156(3).

29. Mr. Jaya Narayan has argued that the authority of the decisions of these last mentioned categories must be held to have been shaken in view of the decision of their Lordships of the Supreme Court In Mst. Ram Kali's case, AIR 1968 SC 1 : (1968 Cri LJ 82) (supra) where the words “may take cognizance” contained in Section 190(1)(b) of the Code were held to mean “must take cognizance”. In other words, according to the learned counsel where a complaint presented to the Magistrate discloses a cognizable offence, the has rio option but to take cognizance and he cannot take recourse to the provisions contained in Section 156(3) because if it were left to the arbitrary sweet-wili of the Magistrate to proceed either under Chapter XVI or under Chapter XIV. as he thinks fit then Section 156(3) would Ibe violative of Article 14 of the Constitution inasmuch as a proceeding under Chapter XIV is more onerous than a proceeding under Chapter XVI of the Code.

30. This contention may appear to be attractive, but it has no force. I am unable to subscribe to the contention of learned counsel that the procedure laid down in Chapter XIV is more onerous than that laid down in Chapter XVI of the Code. Under Section 202. which occurs in Chapter XVI of the Code also, the police has powers of investigation similar to those contained in Chapter XIV of the Code. Besides in Gopal Das v. State of Assam (AIR 1961 SC 986) : (1961 (2) Cri LJ 39), it was held at pages 988-989 as follows:

“When the complaint was received by Mr. Thomas on August 3, 1957. his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. Section 156(3) states ‘Any Magistrate empowered under Section 190 may order such investigation as above-mentioned’. Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the ‘complaint to the Police for investigation as Sections 147. 342 and 448 were cognizable offences. It was however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before ‘him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any upon oath and the substance of the examination shall the reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him., he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint.”

31. Their Lordships further observed:

“We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ‘may’ in Section 190 to mean ‘must’. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code.”

32. The decision in Gopal Das Sindhi's case (AIR 1961 SC 986) was given In January 1961. that is to say long after Article 14 had been incorporated in the Constitution of India. And yet their Lordships held that the Magistrate had a discretion either to proceed under Chapter XVI or to send the complaint to the Police for investigation.

33. I am therefore, unable to accede to the contention of Mr. Jaya Narayan that a Magistrate cannot exercise his power under Section 156(3) in a case where the complaint presented to him discloses a cognizable offence. Of course, as observed by Harries C.J in the Calcutta case (AIR 1950 Cal 99) : (51 Cri LJ 457). a Magistrate cannot pass a hybrid composite order, both under Section 156(3) and under Section 202. The order under Section 156(3) can be passed if the Magistrate himself does not take cognizance of the offence on the complaint filed before him. It is only where the Magistrate has taken cognizance of the offence disclosed in the petition of complaint presented to him that he cannot send the complaint to the police for investigation under Section 156(3). Therefore, these two powers of the Magistrate relate to two different stages and they do not offend against each other.

34. Finally Mr. Java Narayan urged that reading the impugned order there can be no doubt that the learned Magistrate passed the order contemplated by Section 156(3) after he had taken cognizance of the offence alleged in the petition of complaint. Learned Counsel has laid stress upon the first sentence of the impugned order which reads:

“Perused the complaint”.

35. It was pointed out that this being a complaint by a public servant, the examination of the complainant on solemn affirmation was not necessary and, therefore, from the mere fact that the learned Sub-Divisonal Magistrate had perused the complaint, it must be iheld that he had himself taken cognizance of the alleged offences. I am however, unable to read the impugned order as indicating that the learned Sub-Divisional Magistrate had himself taken cognizance of the alleged offences. The first sentence of the impugned order must not be read in isolation, or independently of the subsequent sentence whereby the learned Sub-Divisional Magistrate has directed the police to institute a case against the accused persons. The order has to be read as a whole and reading it as a whole I have no doubt in my mind that the Sub-Divisional Magistrate had perused the complaint not for the purpose of taking cognizance himself, but for passing an order in terms of Section 156(3) of the Code. In Gopal Das Sindhi's case (AIR 1961 SC 986), their Lordships cited with approval the following observations made by Das Gupta. J. (as he then was) in Supdt. and Remembrancer of Legal Affairs. West Bengal v. Abani Kumar Banerjee, (AIR 1950 Cal 437):

“What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a). Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter — proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g, ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

36. It is manifest, therefore, that where a Magistrate applies his mind not for the purpose of proceeding under Chapter XVI but for taking action of some other kind, as for example, ordering an investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. In the instant case, the Sub-Divisional Magistrate had perused the complaint for the purpose of ordering an investigation under Section 156(3) of the Code, and not for the purpose of proceeding under Chapter XVI of the Code. Mr. Jaya Narayan is therefore not right in his submission that the Police investigation under Section 156(3) has been ordered in a case where the Magistrate has himself taken cognizance of the offences disclosed in the petition of complaint.

37. For the reasons set forth above. I do not find any infirmity in the impugned order so as to justify an interference by this Court. I wish, however, to make it clear, as was done in Prabhakar V. Sinari v. : Shanker Anant Verlekar (AIR 1969 SC 686) : (1969 Cri LJ 1057) as also in the Civil Surgeon's case ((1970) 2 SCC 56 : AIR 1970 SC 1661) : (1970 Cri LJ 1401), that despite what I have said in this judgment with regard to the non-applicability of Section 84-A of the Bihar Panchayat Raj Act. 1947, it will be open to the petitioner, if necessary in course of the further proceedings of this case to place materials on the record for showing what was his duty in relation to the H.M.L Scheme in question and to establish that the impugned acts were so interrelated with his official duties as a Mukhiya as to attract the protection afforded by Section 84-A.

38. With the above observations this application is dismissed.

39. Application dismissed.