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6. This contention cannot be accepted for two reasons. Firstly, though the actual order passed by the learned Magistrate is not a part of the file in this case but both the Courts below have proceeded on the assumption that the Magistrate has specifically referred the complaint for investigation under Section 156(3), Cr.P.C. In the judgment of the Supreme Court referred to by the learned Counsel for the petitioner it is specifically observed that the Magistrate could have, without taking cognizance, directed an investigation of the case by the police under Section 156(3), Cr.P.C. But considering the facts of that case, the Supreme Court observed, "once however he took cognizance he could order investigation by the police only under Section 202, Cr.P.C. and not under Section 156(3), Cr.P.C". The facts of that case disclose that the Magistrate had taken action under Section 200, Cr.P.C. which indicate that he had taken cognizance of the offence mentioned in the complaint and under such circumstances, it was open to him to order investigation only under Section 202, Cr.P.C. and not under Section 156(3), Cr.P.C. It is under these circumstances the Supreme Court held that the Magistrate used the words "for instituting case" in his order though he was actually taking action under Section 202, Cr.P.C. that being the only section under which he was in law entitled to act.

7. It may be pointed out that once the Magistrate on receiving a complaint has forwarded the complaint to the police for investigation under Section 156(3), Cr.P.C. before taking any step as contemplated under Section 200 of Cr.P.C. the question of investigation, under Section 202, Cr.P.C. does not arise. Even assuming that the mention of a provision of law by the Magistrate is not significant or that such a mention is done mistakenly, the facts in the case before me do not admit of any doubt that the learned Magistrate in this case referred to the complaint to police only under Section 156(3), Cr.P.C. It would be pertinent to have a look at the provisions under Section 202, Cr.P.C. and the said section is extracted as under :

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for the investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant."

8. Thus from Sub-section (1) of Section 202, it is clear that the Magistrate on receiving a complaint, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. But there is a mandatory bar under proviso to Sub-section (1) of Section 202, against giving a direction by the Magistrate for investigation by a police officer or such other person as he thinks fit, unless the complainant and the witnesses present, if any, have been examined on oath under Section 200, Cr.P.C. Thus the litmus test for ascertaining whether the Magistrate referred the complaint to the police for investigation under Section 156(3), Cr.P.C. or under Section 202(1), Cr.P.C. is whether before making such a reference to the police for investigation, the complainant and his witnesses, if any, have been examined on oath under Section 200, CrP.C. If the complainent irvnl and his witnesses present have not been examined under Section 200, CrP.C. a reference by the Magistrate to the police for investigation can only be made under Section 156(3), Cr.P.C. and not under Section 202, in view of the prohibition enacted under proviso (b) to Sub-section (1) of Section 202.

9. In this case inasmuch as apparently the complainant and his witnesses have not been examined on oath and the Magistrate appears to have forwarded the complaint for investigation by the police after receiving the complaint, such reference to the police can only be under Section 156(3), Cr.P.C. In this case, apart from these abovenoted facts, the Magistrate is said to have specifically mentioned the provision of Section 156(3), Cr.P.C. under which he has forwarded the complaint to the police for investigation. Thus, even assuming that the language used by the Magistrate and the mention of provision of law is not conclusive, it is open to this Court to ascertain independently as to under what provision of law the complaint has been forwarded to the police. The above facts make it abundantly clear that in this case the complaint has been forwarded to the police only under Section 156(3), Cr.P.C. for investigation.