Tek Chand vs State of U.P. and Others

R.K. Saksena, J.—The facts giving rise to these revisions are identical and a common question of law is involved for determination. The revisions were therefore heard together and are being disposed of by a common order.

The facts which admit of no controversy are that two complaints were filed, one against Tek Chand and the other against Karam Chand (revisionist) by Sri D.A. Nistance, Intelligence Officer, Narcotics Control Bureau, New Delhi (opposite party No. 2) alleging that each was cultivating Opium poppyn and was in possession of the same in contravention of the provisions of Section 8 (b) and (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 punishable u/s 18 of the said Act. It is not disputed that opposite party No. 2 is a public servant and he, in the discharge of his official duty, made the complaints. The offence is triable by a court of session The Magistrate took cognizance of the offence and summoned the revisionists. After their appearance, the Magistrate committed the cases to the court of session. The cases were applicant numbered as sessions trial 83 and Sessions Trial 84 in the court of session. The trials were made over to II Additional Sessions Judge, Dehradun for disposal. Both the revisionists moved applications in these cases before II Additional Sessions Judge, Dehradun, alleging that because the committing Magistrate had not resorted to or complied with the provisions of the proviso to Section 202 of the Code of Criminal Procedure, the order committing the case to the court of session was bad in law. The learned Additional Sessions Judge has, by his impugned order dated the 15th of February, 1988 rejected the contention. The correctness and the propriety of this order has been assailed by by means of these revisions.

Drawing our attention towards the proviso to Section 202 of the Code of Criminal Procedure, the Learned Counsel for the revisionists contended that it being a case triable by a court of session, it was incumbent on the complainant to examine all his witnesses and because this has not been complied with, the impugned order is illegal and liable to be set aside. The Learned Counsel for the opposite-parties, on the contrary, contended that it is not obligatory on the part of the Magistrate to resort to the enquiry or investigation contemplated by Section 202 of the Code of Criminal Procedure and, therefore, the said proviso is inapplicable to the facts of the instant case. Reliance is placed on a well known decision of the Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, and also on a case reported in 1989 Crli LJ 2179 Harish Dwarkadas Gandhi v. G.B Yadav.

On a plain reading of sub-section (1) of Section 202 of the Code of Criminal Procedure, specially the words may, if he thinks fit, it is manifest that it is entirely within the discretion of the Magistrate whether or not an enquiry u/s 202 should he made or an investigation ordered. There is no legal obligation on the part of the Magistrate taking cognizance cf an offence to take recourse in every case to the procedure laid down in Section 202, which comes into play only when the Magistrate decides to postpone issuing of process. In Harish Dwarkadas Gandhi�s case after referring to certain decisions, it was laid down :

It is crystal clear that it is not at all necessary and obligatory on the part of a Magistrate to hold an inquiry before issuing process and he is empowered to take cognizance and issue process without holding an inquiry or directing investigation. It may be pertinent to note here that the proviso to Section 202(2) of the Code is pitted against the parent sub-section (2) and not sub-section (1) and as such it can hardly be construed as controlling or fettering the discretion, which vests in the Magistrate under sub-section (1). Therefore, the proviso in question is intended to qualify sub-section (2) to which it is appended and make it obligatory upon the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, if it appears to him that the alleged offence is triable exclusively by the Court of Session. But he has a discretion to postpone the issue of process. On an analytical examination of the provisions contained in Sections 200 to 204, it is abundantly clear that the proviso to Section 202(2) comes into pay only when the Magistrate postpones the issue of process and hold inquiry. In the instant case, the Magistrate examined the complaint filed before him by a public servant and came to the conclusion that there was prima facie material to proceed against the accused persons and being thus satisfied he ordered the issue of process immediately without examining the complainant or the prosecution witnesses u/s 200 or 202, and, therefore, it cannot be faid that his order of issuing process was tainted with any legal infirmity � In Antulay�s case also it was held that it is not obligatory to hold inquiry before issuing process or to direct the investigation of the offence by the police. Their Lordships, however, remarked that the matter is in the judicial discretion of the court and is judicially reviewable depending upon the material disclosed by the complainant.� It, is, thus, obvious that the discretion vests in the court and the same cannot be circumscribed or denied by making it mandatory upon the court either to hold the enquiry or direct investigation. When the Magistrate was satisfied, he did not think it proper to postpone issuing process and, therefore, the provisions of Section 202 of the Code of Criminal Procedure do not come into play at all. The learned Additional District Judge was perfectly justified in rejecting the applications moved before him by the accused-revisionists.

There is no merit in these revisions, which fail and are dismissed.