Santhosh, J.:— This is a reference made under Section 438 Cr. P.C by the learned Sessions Judge of Dharwar in Criminal Revision Application No. 38 of 1971.

2. To appreciate the contentions urged in the case, a few facts may be mentioned. The complainant Rudrappa Ishwarappa Kotre filed a complaint against 8 accused charging them with having committed offences under Sections 454, 171-F, 417, 420 road with 34, and 120-B I.P.C before the Judicial First Class Magistrate, Second Court, Hubli. The learned Magistrate after Mysore recording the sworn statement of the complainant took cognizance of the case and called for a police report from the Assistant Superintendent of Police, under Section 202 Cr. P.C The Assistant Superintendent of Ponce submitted a ‘B’ report on 4th February, 1969. Thereafter the learned Magistrate on 17th April, 1969, directed that the complaint be returned to the complainant for filing it to the proper Court. Then the complainant presented the complaint on 25th April, 1969 before the Judicial Magistrate, First Class, First Court, Hubli. The learned Magistrate after recording the sworn statement of the complainant passed an order under Section 202 Cr. P.C referring the complaint to the P.S.I, Hobli Town for enquiry and report. On 23rd February, 1970, the P.S.I submitted a ‘B’ report to the Court. On 20th July, 1970, the complainant filed a petition before the Court stating that as the P.S.I's. report is not satisfactory, he should be given an opportunity to examine the witiesses on his behalf and led a list of witnesses. The learned Magistrate acceeded to the request of the complainant and recorded the statements of 9 witnesses. Thereafter on 4th October, 1971 he passed the impugned order that after perusing the contents of the complaint and his verification statements and deposition of witnesses and other documents, it was seen that there was substantial grounds for proceeding against all the accused excepting Accused 3. Accordingly he registered a case against the said accused persons under Sections 120-B, 171-F, 471 read with 34, I.P.C Some of the accused persons challenged the above mentioned order passed by the Learned Magistrate before the learned Sessions Judge in a revision Petition.

3. The learned Sessions Judge, after hearing the revision petition, came to the conclusion that the procedure followed by the learned Magistrate was totally illegal and opposed to the provisions of Criminal Procedure Code, and after discussing the various decisions of the High Courts, he came to the conclusion that the Magistrate was not justified in allowing the complainant, after the report of the Police under Section 202 Cr. P.C had been received, to examine the witnesses to fill in the gaps in the case, and held that even on merits the complainant did not have any case and recommended that it was a fit case for this Court to quash the entire proceedings in the interest of Justice.

4. The learned Government pleader appearing on behalf the State has supported the reference. The learned Counsel appearing on behalf of the respondents—accused has also supported the reference. The learned Counsel appearing on behalf of the complainant has argued that there was nothing wrong in procedure followed by the learned Magistrate in examining the witnesses after the Police report had been received by the Court. It is contended that Section 202 Cr. P.C is only an enabling provision and there is nothing in the said Section which prohibits or fetter the power of the Magistrate in examining the witnesses. It is argued that sub-clause (2A) of Section 202 Cr. P.C enables a Magistrate to take evidence of witnesses on oath and that the learned Magistrate has acted under the abovesaid provision in recording the evidence of witnesses produced on behalf of the prosecution after the receipt of the Police report under Section 202 Cr. P.C The learned Counsel has strongly relied on the two decisions of the Calcutta High Court in Manohardas Babaji v. Khandu Dutta(1) and Kshitish Chandru Sheome v. The Stated(2). The learned counsel has also relied on Govindaswamy Gowda v. Ramanna(3) and also State Of Mysore… v. Shankarappa Sateppa Indi & Others…(4) in support of his said contentions. It is also urged by the learned Counsel that in any case, the proceedings are not vitiated by the subsequent examination of witnesses by the learned Magistrate.

5. We will now consider the relevant provisions of Criminal Procedure Code dealing with the powers of a Magistrate in entertaining complaints. Section 200 Cr. P.C 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 be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Section 202 Cr. P.C which is the next relevant section states that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a ponce-officer, or by such other person as he thinks tit, for the purpose of ascertaining the truth or falsehood of the complaint. The next relevant provision for our purpose in the abovesaid section is sub-clause (2A) of Section 202, which states that any Magistrate inquiring into a case under this section may, if he thinks tit, take evidence of witnesses on oath.

6. It is clear from the wordings of Section 202 that a Magistrate, if he thinks fit, for reasons to be recorded in writing can postpone the issue of process and then either:

(i) inquire into the case himself; or

(ii) call for a report from a subordinate magistrate; or

(iii) call for a report from a police-officer; or

(iv) call for a report from such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint.

It is open to the Magistrate to follow any of these four alternatives laid-down by Section 202, but this section does not authorise the Magistrate to make use of all these alternatives.

7. In Sabavva v. Gopalappa(5) this court had to consider the provisions of Section 202, Cr. P.C In the abovesaid case, the Magistrate took cognizance of the offence, and acting on the first part of Section 202, Cr. P.C decided to hold an inquiry himself. After having decided to hold an inquiry himself and examining four more witnesses, the learned Magistrate thereafter called for a report from the police under Section 202, Cr. P.C This Court held that a Magistrate after having made an inquiry himself under Section 202, was not competent thereafter to call for a police report, and the action taken by the learned Magistrate in the said case was opposed to the provisions of Section 202, Cr. P.C This Court in the said revision petition referred to the case of Emperor v. Durga Prasad(6) wherein it has been laid down that under Section 202, Cr. P.C, a Magistrate may either inquire into the case himself or may direct local investigation by the police, but he cannot combine the two procedures. This court also referred to the case of Radha Kishum v. S.K Kisra(7) which laid down that under provisions of Section 202, Cr. P.C The Magistrate should either hold an inquiry himself or he should refer the matter to the police for enquiry; it is not open to his to combine both these methods. There is no force in the contention that it is open to the Magistrate under Section 200, to take evidence of witnesses on oath after calling for the police report under Section 202, Cr. P.C sub-clause (2A) only refers to the case of a Magistrate himself inquiring into the truth of the complaint mentioned under the first part of Section 202. It clearly says that any Magistrate inquiring into the case under this section, may, if he thinks fit, take evidence of witnesses on oath. This, in our opinion, does not authorise the Magistrate to record the evidence of witnesses after he has called for Police report. There is no provision in Criminal Procedure Code authorising the Court, after the receipt of the police report to examine witnesses on behalf of the complainant to disprove the police report. It is open to the Court, after taking into account the complaint and the sworn statement of the complainant and witnesses, if any, produced by him at the time of taking cognizance of the complaint, and the police report, to decide whether there was sufficient grounds for proceeding with the case and issuing process against the accused.

8. We are of opinion that the decision of the old Mysore High Court relied on by the learned counsel for the complainant is not of any help to him. In Govindaswamy Gowda v. Ramanna the Magistrate after receiving a ‘B’ report, from the police, without recording any reasons, summarily dismissed the complaint. The learned Judge held that the action of the Magistrate was illegal and remanded the case for fresh disposal according to law.

9. In State Of Mysore… v. Shankarappa Sateppa Indi & Others… the learned Magistrate on a complaint of an offence of Child Marriage Restraint Act, without holding any preliminary enquiry as required by Section 10 of the said Act, straight away issued summons to the accused and then, when this legal defect was brought to his notice, held a preliminary enquiry and thereafter dismissed the complaint. This Court held that the learned Magistrate has violated the mandatory provisions of Section 10, by not holding a preliminary inquiry before issuing summons, but as the order passed by the learned Magistrate dismissing the complaint after holding a preliminar enquiry, was not a judgment, it was open to the Magistrate to review his own order. The question whether a Magistrate after calling for a police report can examine the witnesses produced on behalf of the complainant did not arise in the said case.

10. We are also of opinion that the two single Judge decisions of the same Judge of Calcutta High Court (A.I.R 1966 Calcutta, page 633 and A.I.R 1967 Calcutta, 114), do not also deal with the points raised in the instant case. In both the abovesaid cases, the learned Judge held that it was open to the Magistrate to direct the holding of a second enquiry under Section 202, Cr. P.C The question, whether the Magistrate, after calling for a report from the Police, can examine the witnesses on behalf of the complainant did not arise in this case.

11. We have already mentioned the two decisions—I.L.R 1922, Allahabad, 550 and A.I.R 1949 Patna, 36, which have laid down that under Section 202, Cr. P.C it is not open to the Magistrate to hold an inquiry himself and also call for a police report. These decisions have laid down that it is not open to the Magistrate to combine both the methods mentioned in Section 202, Cr. P.C Apart from Allahabad and Patna High Court decisions, the learned Sessions Judge has also referred to the various decisions of other High Courts, which have also laid down that it is not open to the Magistrate to examine witnesses on behalf of the complainant after calling for a report under Section 202, Cr. P.C In Kalappa Pillai v. Palaniandi Ambalam(8), Govinda Menon, J., as he then was, has pointed out that it is not obligatory upon the Magistrate before whom the complaint is made or to whom it has been transferred, to give an opportunity to the complainant to show that the report of the police enquiry is wrong. Section 203 does not impose such a duty. All that the Magistrate has to do is to consider the statement on oath, if any, of the complainant as well as the result of the investigation or enquiry under Section 202, Cr. P.C before he dismisses the complaint and no where it is stated that a Magistrate who has referred a complaint for enquiry should, after receipt of the police report, give an opportunity to the complainant to adduce evidence to show that the report of the police is wrong or incorrect. It has been pointed out by his Lordship that if such a view is accepted, it makes the provisions of Section 203, Cr. P.C much wider than it is expressly stated. Again in Dattatraya Dulaji Ghadigaonkar v. Wadilal Nanural(10) their Lordships of the Bombay High Court agreed with the view taken in A.I.R 1949 Madras, 232 and observed that Sections 200 to 203 from a chapter in themselves under the heading ‘of complaint to Magistrate’ and the said chapter laid down the procedure to deal with complaints lodged by private persons. Their Lordships Shelat and Miabhoy, JJ., further observed that there is no provision which compels a Magistrate who has referred a complaint for enquiry to give an opportunity to complaint, after the receipt of the police report and before he dismisses the complaint to adduce evidence to show that the police report is wrong or incorrect. We are, therefore, clearly of opinion that the learned Magistrate has acted illegally and against the provisions of Section 202, Cr. P.C in permitting the complainant to examine nine witnesses after the receipt of the police report, called for by him under Section 202, Cr. P.C

12. There is also no force in the contention of the learned Counsel that the examination of witnesses on behalf of the complainant after calling for the police report and relying on them, is a curable irregularity. We have already pointed out that under ane Code, Section 202 deals with the powers of the Magistrate in receiving the complaint and that the Magistrate has no other power outside the code and he has to act in conformity with the provisions of the Code. In Chandradeo Singh v. Prakash Chandra Bose(9), their Lordships have clearly liad down that where a Magistrate has ordered an inquiry under Section 202 by another Magistrate, it is not open to him to consider the statement recorded during investigation by the police and if the Magistrate acted on such extraneous material, the proceedings would be vitiated.

13. It has been finally contended by the learned counsel for the complainant that this is a fit case for remand, and the Magistrate may be directed to give a fresh finding. It may be pointed out that the learned Sessions Judge, in his order has also considered the merits of the case and after examining the same he has come to the conclusion that it is not a fit case for the proceedings to be continued against the accused and has suggested that the final order issuing process against the accused, may be quashed. The learned Sessions Judge has considered this aspect of the matter in paragraphs 30 and 31 of his Order and observed as follows:—

“30. For these reasons, I hold that the Magistrate was not justified in allowing the complainant a long rope in examining further witnesses till at least he could find some witnesses over a period of more than one year to rope in some of the accused. Such procedure, as observed above, in my considered view goes to defeat the salutary and laudable object enshrined in Section 202 of Criminal Procedure Code that an innocent man shall not be harassed by a cantankerous complainant by false and vexations allegations made in a complaint and thus I am constrained to hold that the order of the learned Magistrate, mainly based on the evidence, adduced by resorting to the illegal procedure, has resulted in prejudice to the accused and is liable to be set aside. The learned Magistrate in the absence of any reason shown to the contrary, should have accepted the result of the detailed and exhaustive enquiry made by the police.

31. As rightly submitted by the learned Advocate appearing for the applicant, the police in their investigation examined all the witnesses mentioned in the complaint and examined all the documents referred to their and in addition, the complainant gave another list of witnesses therein and their evidence was also recorded and it is not the case of the learned counsel for the respondent-complainant before that the material exhaustively collected would disclose any case against the accused. He mainly relics on the evidence of some of the witness examined by the complainant after the result of the enquiry was received. Obviously to bolster up his case and to vindicate his complaint, i.e, relied upon by the learned counsel for the respondent. In my considered view, such evidence cannot be looked into and relied upon. It is collected, as it were, in a desperate attempt by the complainant to rope in the accused, his allegations being found baseless in the police enquiry. I may state here at the cost of repetition, that to allow such a procedure would go to destory the very purpose of safeguarding the interest of innocent persons.”

We agree with the learned Sessions Judge that in the police report, the various witnesses mentioned by the complainant and also the further list of witnesses examined by him have not supported the case of the complainant and no useful purpose would be served by continuing these proceedings.

14. For the reasons mentioned above, we accept the reference and quash the impugned order directing the issue of summons to the accused, passed by the learned Judicial Magistrate, First Class, First Court, Hubli.